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https://www.courtlistener.com/api/rest/v3/opinions/1616889/ | 190 S.W.3d 768 (2006)
In re Ada BROWN, Relator.
No. 05-06-00061-CV.
Court of Appeals of Texas, Dallas.
January 27, 2006.
*769 Charles Sartain, Elizabeth P. Ardanowski, Looper, Reed & McGraw, P.C., Dallas, for relator.
Dan Patterson, Kenneth H. Molberg, Wilson, Williams & Molberg, P.C., Darlene J. Ewing, Dallas, for real party in interest.
Before Justices WHITTINGTON, FITZGERALD, and LANG-MIERS.
OPINION
Opinion by Justice LANG-MIERS.
In this original proceeding, relator Ada Brown, the incumbent judge of and Republican Party candidate for County Criminal Court No. 1, asks this Court to order the chair of the Dallas County Democratic Party to remove Dan Patterson's name from the Democratic primary election ballot for the same office. We deny relator's request for mandamus relief.
Patterson, the real party in interest, submitted his application for judge of the County Criminal Court No. 1 on the Democratic Party primary election ballot. Accompanying the application were Patterson's thirty nine pages of petitions containing approximately 360 signatures. State law requires that a candidate designate in his petition the party primary in which he intends to run. None of the pages of signed petitions submitted by Patterson indicated the party primary in which he was running. Instead, "March 2006" was written in the space designated for the name of the political party.[1] The Chair of the Dallas County Democratic Party, Darlene Ewing, certified and delivered Patterson's name for inclusion on the primary ballot.
By letter dated January 12, 2006, Judge Brown asked Ewing to omit Patterson's name from the Democratic primary ballot, arguing that Patterson's failure to name the political party primary election in which he intended to run violated section 172.027 of the Texas Election Code and was fatal to his candidacy. Ewing did not respond. Five days later, Judge Brown filed this petition for writ of mandamus. In her petition, Judge Brown argues that by failing to reject Patterson's application for a place on the ballot, Ewing has violated her ministerial duty under the election code and is subject to mandamus by this Court.
Assuming, without deciding, that the petitions were defective we must decide whether the election code mandates that the defects should be punished by exclusion of the candidate from the ballot. In re Sharp, 186 S.W.3d 534 (Tex. 2006) (orig.proceeding); In re Francis, 186 S.W.3d 534 (Tex. 2006) (orig.proceeding); In Re Holcomb, 186 S.W.3d 553 (Tex. 2006) (orig.proceeding).
*770 Patterson argues that the defects in his petitions could have been cured if he had been notified of the defects. Brown has not argued that the defects could not have been timely cured. We conclude that once Ewing told Patterson his petitions were in order and certified and delivered his name for inclusion on the ballot, she could not change that decision without notifying him of the defects and giving him the same opportunity to cure as he would have had before the deadline passed. In re Sharp at 556 Because Patterson has not been provided the same opportunity to cure the defects in his petitions as he would have had if he had been notified of the defects before the deadline passed, we conclude Brown is not entitled to mandamus relief. In re Sharp, No. 06-0061; In re Francis, No. 06-0040; In re Holcomb, No. 06-0042.
Accordingly, we DENY relator Ada Brown's petition for writ of mandamus.
Because of the time constraints imposed by law, the Court will entertain no motions for rehearing. See TEX.R.APP. P. 2.
NOTES
[1] The top of each page of the petitions contained the following:
I know that the purpose of this petition is to entitle DAN PATTERSON to have their name placed on the ballot for the office of JUDGE, COUNTY CRIM. CT. # 1 for the MARCH 2006 primary election. I understand that by signing this petition I become ineligible to vote in a primary election or participate in a convention of another party, including a party not holding a primary election, during the voting year in which this primary election is held.
The underlined information was filled in by hand. Instructions for filling in the underlined portions of the statement were on the reverse side of the petition. For the blank that was filled in "MARCH 2006", the instruction provided "Insert Political party's name." See TEX. ELEC.CODE ANN. § 172.027 (Vernon 2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616853/ | 201 So. 2d 853 (1967)
UNITED SECURITY LIFE INSURANCE COMPANY
v.
Lowell GREGORY.
6 Div. 348.
Supreme Court of Alabama.
August 17, 1967.
Sydney Lavender, of Deramus & Johnston, Birmingham, for appellant.
Nash, NeSmith & Walker, Oneonta, Jas. F. Berry, Cullman, for appellee.
SIMPSON, Justice.
Mr. Gregory sued United Security for breach of a contract of employment. The basis of his claim may be thus summarized:
In 1938 he was employed as a "field agent" by Emergency Aid Life Insurance Company of Elba, Alabama. He was hired by a general agent of the company. After being with Emergency Aid for a few months he was promoted to a district managership. In 1962 United Security acquired Emergency Aid through a merger. The appellee continued to act as a district manager for United Security until his employment was terminated by the president of United Security in 1963.
Appellee's complaint consisted of two counts. In essence it was alleged that the plaintiff (appellee) had entered into a contract of employment in writing with Emergency Aid, which contract had been lost, in 1938; that by the terms of the contract the plaintiff was to solicit life and burial insurance for the defendant, collect and remit premiums thereon, and to supervise the defendant's business in Blount County; that under the terms of the contract it was agreed between the parties that the plaintiff would remain in the defendant's employment so long as the plaintiff solicited life and burial insurance for the defendant and supervised its business in Blount County and so long as the plaintiff made his annual increase in insurance production. Under the terms of the contract, it was alleged, plaintiff was to receive 10% of all insurance premiums produced by agents of the defendant under the plaintiff's supervision. The plaintiff alleged that he performed all provisions of the contract which he was required to perform and that the defendant had breached the contract by terminating his employment on April 9, 1963. Plaintiff claimed damages in the amount of $100,000. The case was tried to a jury which returned *854 a verdict in favor of the plaintiff in the amount of $5,000. This appeal followed.
The theory of the plaintiff's case was that the contract sued on was a contract for employment for, in his words, "an indefinite period of time", "no limit to it", "permanent", "no termination".
At the threshold then, we must consider whether this contract, which was lost, and the terms of which were only vaguely remembered, was one which can be enforced against the employer who has terminated the services of the employee.
This Court has had occasion to consider this question in a number of cases. In National Union Life Insurance Company v. Ingram, 275 Ala. 310, 154 So. 2d 666, speaking through Justice Lawson, it was observed:
"In regard to a contract for life employment, the majority rule seems to be that two elements must be shown to exist before such a contract can be held enforceable. First, it must appear that there was a consideration of substantial value, independent of any service to be performed, and in making that determination the courts inquire into the actual value of the consideration. Second, where the promisor is a corporation, in the absence of ratification or estoppel, it must appear that the individual or individuals who acted on behalf of the corporation had actual, as opposed to implied, authority to bind the corporation. Alabama Mills [Inc.] v. Smith, 237 Ala. 296, 186 So. 699; Chesapeake & Potomac Tel. Co. of Baltimore City v. Murray, 198 Md. 526, 84 A.2d 870; Heaman v. E. N. Rowell Co., 261 N.Y. 229, 185 N.E. 83; Carney v. New York Life Ins. Co., 19 A.D. 160, 45 N.Y.S. 1103, affirmed 162 N.Y. 453, 57 N.E. 78; Rennie v. Mut. Life Ins. Co. of N. Y., 1 Cir., 176 F. 202; * * * [further citations omitted]." (Emphasis added.)
Further, in Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699, we noted:
"Our case of Peacock v. Virginia-Carolina Chemical Co., 221 Ala. 680, 130 So. 411, reviews many of the authorities on the subject. The general rule is there referred to that an indefinite hiring is presumed to be at the will of either party, in the absence of custom or facts showing a contrary intention. * * *
"` * * * "permanent" employment will be held to contemplate a continuous engagement to endure as long as the employer shall be engaged in business and have work for the employee to do and the latter shall perform the service satisfactorily. This seems to be the established rule in case the employee purchases the employment with a valuable consideration outside the services which he renders from day to day.'" (Emphasis added.)
The expressions from this Court as noted in the foregoing cases and others seem to be consistent with the majority approach as indicated by the Annotation at 35 A.L.R. 1432, supplemented at 135 A.L.R. 646, where it is stated that
"* * * ordinarily, in the absence of additional express or implied stipulations as to duration, a contract for permanent employment, for life employment, or for other terms purporting permanent employment, where the employee furnishes no consideration additional to the services incident to the employment, amounts to an indefinite general hiring terminable at the will of either party, and that, therefore, a discharge without cause does not constitute a breach of such contract justifying recovery of damages therefor * * *."
We have searched the record before us for evidence that the first element required and noted in National Union Life Insurance Company v. Ingram, supra, was *855 met by appellee. There is a complete absence of any claim by him that there was any consideration for the contract of employment, even assuming that it provided for indefinite employment in express terms, "of substantial value, independent of any service to be performed". Rather, his testimony is supportive of the conclusion that there was absolutely nothing rendered by him other than day to day services of selling insurance and collecting premiums. Indeed, his own testimony indicated that he performed this service on a part-time basis and as an adjunct to his personal insurance business, in which he represented other companies.
Appellee relies on Alabama Mills, Inc. v. Smith, supra, where we said that
"When a person purchases such a contract [of employment] for a valuable consideration other than the service to be rendered for which he is to receive compensation, there is no reason to suppose that it is not as binding as any other contract thus supported. If he has purchased a contract by which his employer leaves the period of duration to him, it resembles the purchase of other sorts of option rights, subject to the limitation impliedly included that the employer shall continue in such business and need the things to be done, which the employee is to do."
We concur in that holding. However, that case is distinguishable from the one at bar in one essential respect, viz: there the employee showed the consideration other than the services rendered mentioned in National Union, supra. Here, the employee has not done so. We think the affirmative charge should have been given at the instance of appellant, for the reasons above noted.
Reversed and remanded.
LIVINGSTON, C. J., and EMERRILL and HARWOOD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616887/ | 190 S.W.3d 333 (2006)
Mary A. HUTCHINS, Appellant
v.
GENERAL ELECTRIC COMPANY; and Hon. Lawrence F. Smith, Administrative Law Judge, Appellees.
No. 2005-SC-0627-WC.
Supreme Court of Kentucky.
April 20, 2006.
*334 Robert M. Lindsay, Segal, Stewart, Cutler, Lindsay, Janes & Berry, Louisville, KY, Counsel for Appellant.
Judson F. Devlin, Fulton & Devlin, Louisville, KY, Counsel for Appellee, General Electric Company.
OPINION OF THE COURT
The Workers' Compensation Board (Board) affirmed an Administrative Law Judge's (ALJ's) decision to dismiss the claimant's application for benefits based on a finding that the harmful changes she *335 alleged were not caused by a work-related injury. This appeal is taken from an order that dismissed the claimant's petition for review in the Court of Appeals on the ground that she failed to name the Board as an appellee as required by CR 76.25(4)(a). Having concluded that the function of CR 76.25(4)(a) is not to make the Board an indispensable party to a petition for review, we reverse and remand for a consideration of the merits.
The relevant facts in this appeal are few. When appealing the ALJ's decision to the Board, the claimant named not only her employer and the ALJ as appellees, she also named the Board. As a consequence, the Board's January 21, 2005, opinion not only affirmed the decision to dismiss the claim but also dismissed itself as a party to the appeal. On February 21, 2005, the claimant filed a petition for review in the Court of Appeals, naming only the employer and the ALJ as appellees. She served a copy of the petition on the "Commissioner" of the Office of Workers' Claims as well as on the named appellees. On March 1, 2005, she moved to amend the petition to name the Board as an appellee, serving both the employer and the Commissioner. The Court denied the motion as untimely and ordered her to show cause why the petition should not be dismissed for failure to name the Board as an appellee. The court determined subsequently that the Board was an indispensable party and dismissed the appeal.
The claimant asserts that all judicial decisions requiring the Board to be joined as a party to a workers' compensation appeal are based on KRS 342.285(1) as it existed prior to the adoption of the 1987 Act. She points out that the prior statute required the Board to be made a party to an appeal in circuit court but that it was amended effective January 4, 1988, at which time the requirement was eliminated together with the right of appeal to circuit court. The newly-created ALJs were the finders of fact, and regulations were adopted requiring the ALJ who rendered the decision from which an appeal was taken to be made party to an appeal to the Board. The claimant argues that under the post-1987 Act it is the ALJ who may be required to take certain actions on remand rather than the Board, and she urges that the policy of strict compliance with procedural rules concerning the filing of a petition for review be relaxed. Although our reasoning is different, we agree that the Board is not an indispensable party to an appeal from a decision of the Board to the Court of Appeals. See First National Bank of Louisville v. Progressive Casualty Ins. Co., 517 S.W.2d 226 (Ky.1974) (appellate courts should resolve cases on their merits, aided but not necessarily restricted by the parties' arguments).
KRS 342.285 was amended effective January 4, 1988, and remains substantially the same today. KRS 342.285(1) designates the ALJ as the finder of fact in workers' compensation claims, grants the Board authority to review ALJ decisions, and no longer provides a right of appeal to circuit court. KRS 342.285(3) gives the Board explicit authority to affirm, modify, or set aside an ALJ's decision, to remand the matter for further proceedings consistent with its directions, or to remand a matter to an ALJ before reaching a decision. KRS 342.290 creates a right of appeal in the Court of Appeals regarding all matters reviewable by the Board and errors of law arising before the Board; however, it does not expressly require the Board to comply with the Court's directives. Nor does it require the Board to be made a party.
Stahl v. Panarama Rest Care, 788 S.W.2d 276, 277 (Ky.App.1990), is the only *336 decision on this matter under the post-1987 Act. In Stahl, the court determined that KRS 342.285(1) confers jurisdiction on the Board but does not require the ALJ to be named a party; however, KRS 342.285(3) implies a requirement that the ALJ must comply with the Board's directives. Citing Johnson v. Correll, 332 S.W.2d 843, 845 (Ky.1960), the court explained that although KRS 342.285(1) authorizes regulations to govern the prosecution of appeals to the Board, it would not authorize an administrative agency to impose additional requirements for invoking the Board's jurisdiction (such as requiring the ALJ to be named a respondent). It would, however, authorize a regulation requiring the ALJ to be served with notice of the appeal. Finally, the court observed that although 803 KAR 25:010, § 21 requires the ALJ to be named as a party in an appeal to the Board, it does not require an appeal to be dismissed for failure to do so.
As amended effective January 4, 1988, KRS 342.290 provides as follows:
The decision of the board shall be subject to review by the Court of Appeals pursuant to Section 111 of the Kentucky Constitution and rules adopted by the Supreme Court. The scope of review by the Court of Appeals shall include all matters subject to review by the board and also errors of law arising before the board and made reviewable by the rules of the Supreme Court for review of decisions of an administrative agency.
The Supreme Court adopted SCR 1.030(3), which provides that final decisions of the Board are subject to review by the Court of Appeals under procedures set forth in the Rules of Civil Procedure. CR 76.25 states, in pertinent part, as follows:
(1) General.
Pursuant to Section 111(2) of the Kentucky Constitution and SCR 1.030(3), decisions of the Workers' Compensation Board shall be subject to direct review by the Court of Appeals in accordance with the procedures set out in this Rule.
(2) Time for Petition.
Within 30 days of the date upon which the Board enters its final decision pursuant to KRS 342.285(3) any party aggrieved by that decision may file a petition for review by the Court of Appeals and pay the filing fee required by CR 76.42(2)(a)(xi). Failure to file the petition within the time allowed shall require dismissal of the petition. (emphasis added).
. . . .
(4) Petition.
The petition shall designate the parties as appellant(s) and appellee(s) and shall contain the following:
(a) The name of each appellant and each appellee and the names and addresses of their respective counsel. The appellant shall specifically designate as appellees all adverse parties and the Workers' Compensation Board. (emphasis added).
Although KRS 342.290 creates a right of appeal in the Court of Appeals, it does not expressly require the Board to comply with the Court's directives or require it to be named a party. Nonetheless, we must presume that the legislature did not intend to create an absurdity by authorizing an appeal to the Court of Appeals while failing to require the Board to transmit the record or comply with the Court's orders and decisions. See Overnite Transportation Co. v. Gaddis, 793 S.W.2d 129, 131 (Ky.App.1990). For that reason, we conclude that KRS 342.285(3) and KRS 342.290 imply a legislative intent to require the Board to comply with the Court's orders and decisions.
The right to appeal the decision of an administrative agency to a court is a *337 matter of legislative grace; therefore, the statutory conditions for invoking the power of the court to hear such an appeal are strictly construed. Kentucky Unemployment Insurance Commission v. Carter, 689 S.W.2d 360 (Ky.1985); Board of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1 (Ky.1978). Consistent with these principles, the "old" Board was considered to be an indispensable party whose presence was required in order to invoke the circuit court's power to consider a workers' compensation appeal under the pre-1987-Act version of KRS 342.285(1). See Milligan v. Schenley Distillers, Inc., 584 S.W.2d 751 (Ky.App.1979); Scott Brothers Logging and Lumber Co. v. Cobb, 465 S.W.2d 241 (Ky.1971). The present versions of KRS 342.285(1) and KRS 342.290 do not require the Board to be made a party when appealing its decision to the Court of Appeals; therefore, the Board's presence is not indispensable to invoking the Court's jurisdiction over the matter.
It is within the inherent power of the courts to prescribe rules to regulate their proceedings and to facilitate the administration of justice, even without express authority from the constitution or a statute. Kentucky Farm Bureau Mutual Insurance Co. v. Wright, 136 S.W.3d 455 (Ky.2004), citing Craft v. Commonwealth, 343 S.W.2d 150, 151 (Ky.1961). Following the enactment of KRS 342.290, the Supreme Court adopted SCR 1.030(3) as well as CR 76.25(2), which designates a petition for review as being the procedural device for invoking the Court of Appeals' jurisdiction. Under the rule, the petition has attributes of both a notice of appeal and a brief. Although CR 76.25(4)(a) requires the petition to designate the Board as an appellee, the rule's function is not to make the Board an indispensable party but to require the appellant to serve the Board with a copy of the petition. The Court of Appeals erred in determining otherwise.
A policy of strict compliance governs the time within which an appellant must invoke the court's jurisdiction, naming all indispensable parties. CR 73.02; Johnson v. Smith, 885 S.W.2d 944, 950 (Ky.1994); City of Devondale v. Stallings, 795 S.W.2d 954 (Ky.1990). CR 76.25, like CR 73.02, embodies a policy choice that a tardy petition for review is subject to automatic dismissal and cannot be saved through application of the doctrine of substantial compliance. See Excel Energy, Inc. v. Commonwealth Institutional Securities, Inc., 37 S.W.3d 713 (Ky.2000). However, the present case does not involve a tardy petition for review. Within 30 days after the Board affirmed a decision that denied the claimant's application for benefits, she filed a petition for review in the Court of Appeals, naming her employer and the ALJ as appellees and serving a copy of the petition on the Office of Workers' Claims. Her unopposed motion to name the Board as an appellee was filed slightly more than a week after the time for taking an appeal expired. Under the circumstances, dismissal was an unwarranted sanction.
The decision of the Court of Appeals is reversed, and this matter is remanded for further proceedings that are consistent with this opinion.
LAMBERT, C.J., and GRAVES, JOHNSTONE, SCOTT and WINTERSHEIMER, JJ., concur.
ROACH, J., dissents by separate opinion in which COOPER, J., joins.
Dissenting Opinion by Justice ROACH.
Because I believe that this Court should follow its own rules until they are amended pursuant to CR 87, I dissent. See Robertson v. Commonwealth, 177 S.W.3d 789, 791 *338 (Ky.2005) ("We are reluctant to carte blanche amend our rules without following the formal procedures established for such amendments. CR 87.").
CR 76.25 sets forth the applicable rules for the review of Workers' Compensation Board (the "Board") decisions. CR 76.25(1) states that "decisions of the Workers' Compensation Board shall be subject to direct review by the Court of Appeals in accordance with the procedures set out in this Rule." CR 76.25(4)(a) states:
The petition shall designate the parties as appellant(s) and appellee(s) and shall contain the following:
(a) The name of each appellant and each appellee and the names and addresses of their respective counsel. The appellant shall specifically designate as appellees all adverse parties and the Workers' Compensation Board.
Quite frankly, the majority's holding that the Board is not an indispensable party because KRS 342.285(1) and KRS 342.290 do not require the Board to be named in an appeal misses the mark. Whether these statutes require the Board to be named is not the issue. CR 76.25(4)(a) expressly requires that an appellant designate the Workers' Compensation Board as an appellee. It is beyond me how we can simply ignore the clear dictates of our very own rule. The majority claims that the rule can be ignored because the "apparent function of the rule is to require the appellant to serve the Board with a copy of the petition." CR 76.25(4)(a) does not say or suggest this "apparent function"; rather, it says that the Board shall be designated as an appellee. Whatever the "apparent function" of the rule may be or may not be, I do not believe that unequivocal language in a rule should be ignored. If we wish to amend CR 76.25(4)(a), let us amend the rule in accordance with CR 87. Until we do so, I am not willing to conclude that the Court of Appeals abused its discretion when it enforced our own rules of procedure. Therefore, I respectfully dissent.
COOPER, J., joins this dissenting opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616850/ | 190 S.W.3d 580 (2006)
RPCS, INC., Appellant,
v.
Renee WATERS and Division of Employment Security, Respondents.
Nos. 27309, 27311.
Missouri Court of Appeals, Southern District, Division One.
May 5, 2006.
*582 Austin E. Williamson and Aaron D. Jones, Hulston, Jones & Marsh, Springfield, MO, for Appellant.
Cynthia A. Quetsch, Jefferson City, MO, for Respondent Missouri Dept. of Labor and Industrial Relations.
*583 GARY W. LYNCH, Judge.
RPCS, Inc. ("Employer") appealed two decisions by the Labor and Industrial Relations Commission ("Commission") determining that: 1) Renee Waters ("Claimant") was not disqualified for unemployment compensation benefits by reason of her discharge by Employer (Appeal No. 27309); and 2) Claimant was not ineligible for benefits between July 10 through July 23, 2005, as she was available for work, able to work and actively and earnestly seeking work (Appeal No. 27311). We ordered consolidation of the appeals and affirm the Commission's decision in each.
1) Standard of Review
The limits of our review are governed by both the Missouri Constitution and by statute. Article V, § 18 of the Missouri Constitution requires us to determine whether the Commission's decision is "authorized by law" and whether it is "supported by competent and substantial evidence upon the whole record."[1]Pulitzer Publishing Co. v. Labor & Indus. Rel. Comm'n, 596 S.W.2d 413, 417 (Mo. banc 1980). In addition, section 288.210[2] further defines the boundaries of review by providing, in part:
Upon appeal no additional evidence shall be heard. The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decisions of the commission on the following grounds and no other;
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.
In deciding if the Commission's decisions are allowed by law, we are not confined to its conclusions of law or its application of law to the facts. Shelby v. Hayward Baker, Inc., 128 S.W.3d 164, 165-66 (Mo.App.2004). Each question receives independent review with no deference given to the Commission's determinations. Hoover v. Cmty. Blood Ctr., 153 S.W.3d 9, 12 (Mo.App.2005). Whether an employee's actions constitute misconduct related to her work is a question of law. Dixon v. Div. of Employment Sec., 106 S.W.3d 536, 540 (Mo.App.2003).
On the other hand, we will not replace the Commission's conclusions with our own as to their factual findings. Id. We defer to the Commission's "determinations regarding weight of the evidence and the credibility of witnesses." Id. Absent fraud, the Commission's factual findings are conclusive on appeal if they are supported by competent and substantial evidence upon the whole record and are not clearly against the overwhelming weight of the evidence. Clark v. Labor & Indus. Rel. Comm'n, 875 S.W.2d 624, 626 (Mo. App.1994). When the Commission has reached one of two possible conclusions from the evidence, this Court will not reach a contrary conclusion even if we could reasonably do so. Id. at 626-27. If the evidence before the Commission would warrant either of two opposed findings, we *584 are bound by the administrative determination. Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo.App.2003).
2) Factual and Procedural Background
Renee Waters began working for Employer in March of 2004 as a cashier earning $5.50 an hour. Claimant's employment was terminated on June 22, 2004, because she continually had cash shortages in her cash drawers throughout the four months of her employment. Testimony revealed that in June 2004, Claimant's cash register drawers had the following shortages:
June 2$20.70
June 9$3.87
June 10$3.41
June 11$17.69
June 12$10.94
June 13$22.29
June 14$4.65
June 15$9.66
June 16$20.31
Employer, by internal policy, restricted Claimant to $5.00 shortage on each of day of work. Therefore, the shortages on June 9, 10, and 14 did not violate any store policy. The store manager questioned Claimant and testified that she appeared flustered, nervous and concerned about the shortages. She told the manager she did not understand why the shortages were occurring. The manager testified that he had suspicions that Claimant was stealing, but no one observed Claimant taking any money. Claimant testified that she had worked tills during her past employment at other places and had never had the shortage problems. Claimant was discharged by a store official who related that her discharge was due to the cash shortages. Claimant does not dispute that she had shortages but did raise concern over the store's security policy and method of accounting.
From April 2005 until June 25, 2005, Claimant participated in an alcoholic rehabilitation program at Carol Jones Center that required her to attend classes three days a week from nine o'clock in the morning until noon. After June 25, 2005, she attended class one day per week, but she had the option to choose what day and time. Classes were held during both the day and the evening. When asked what she would have done had she been offered a job prior to June 25, 2005 which conflicted with the sessions at Carol Jones Center, Claimant answered that she would either change her days, work weekends or later nights, ask for a day off work, or change her schedule at Carol Jones Center. Claimant further testified that if she had been offered a job after June 25, 2005 that required her to work Monday through Friday from 9:00 am till noon that she would have attended the Carol Jones Center classes at night.
Before mid-July, Claimant had a vision problem that prevented her from working. Claimant obtained new glasses in mid-July that rectified her condition, and she was able to work thereafter. Claimant also testified that the lowest wage she was willing to receive was "minimum [wage] to six" dollars per hour.
Claimant filed a claim for unemployment benefits on June 10, 2005. The Commission found that Claimant was not disqualified because her discharge was not for misconduct connected with her work (Appeal No. 27309). Specifically, the Commission found, in part:
The record lacks substantial and competent evidence that the claimant was violating any of the employer's procedures regarding handling money or that the claimant was taking money. The tribunal concludes that the evidence of the cash shortages alone is not substantial *585 and competent evidence of misconduct.... Consequently, the tribunal concludes the record lacks substantial and competent evidence of disqualifying misconduct.
At most the evidence shows the shortages were caused by poor work performance or an inability to perform the job.... Therefore, the tribunal concludes the claimant was discharged on June 22, 2004, but not for misconduct connected with work.
The Commission found that Claimant was ineligible for benefits from June 5, 2005 through July 9, 2005, but she was eligible from July 10, 2005 through July 23, 2005 (Appeal No. 27311). The Commission concluded, in part:
The evidence before the Tribunal shows the claimant was not physically able to work prior to July 9, 2005. From July 10, 2005 through July 23, 2005 the claimant was physically able to work because she suffered no physical impairments. The evidence shows that the claimant's mandatory attendance to the alcoholic rehabilitation program did not prevent her from accepting full-time employment because the program provided flexible options for the claimant.
Therefore the Tribunal concludes the claimant was not physically able to work and she is therefore ineligible from June 5, 2005 through July 9, 2005. The claimant was physically able to work, available for work and earnestly and actively seeking work from July 10, 2005 through July 23, 2005 and is therefore eligible for benefits during that time.
3) Employer's Points on Appeal
Employer raises three points on appeal. Point I, directed toward Appeal No. 27309, contends that the Commission's conclusions that Claimant was not disqualified from receiving benefits due to misconduct connected with work is erroneous and not supported by competent and substantial evidence on the record as a whole. Employer supports this allegation by offering that Claimant was repeatedly and inexcusably "short in her tills" and, therefore, her discharge was due to misconduct. Point II, directed toward Appeal No. 27311, contends that the Commission erred in determining that Claimant was eligible for benefits during the period of July 10, 2005 through July 23, 2005. Employer asserts that Claimant was unavailable for work because of her participation in a recovery program, that she restricted her job search by refusing to take employment for less than $6.00 an hour, and that she had a physical condition which prevented her from conducting an active job search. Employer contends that all of these made her ineligible for benefits. Point III, presumably directed toward both appeals, claims error in the Commission's "refusal to allow Employer to admit the Division Employment Packet into the record as is allowed" under Section 288.190.2. We will address the Employer's points in the order presented.
4) Claimant's DischargeAppeal No. 27309
In seeking unemployment compensation, Claimant had the burden of proving her eligibility for benefits. Tri-State Motor Transit Co. v. Indus. Comm'n, 509 S.W.2d 217, 220 (Mo.App. 1974). The rationale of the Missouri Employment Security Law is to provide benefits to persons "unemployed through no fault of their own." Section 288.020.1; Aaron's Auto. Products, Inc. v. Div. of Employment Sec., 926 S.W.2d 229, 231 (Mo.App.1996). For that reason, a claimant is disqualified from receiving benefits if he or she "has left work voluntarily without good cause attributable to such work or to the claimant's employer[.]" *586 Section 288.050.1(1); Wimberly v. Labor & Indus. Rel. Comm'n, 688 S.W.2d 344, 346 (Mo. banc 1985). There is no dispute that Claimant had several shortages in her till during the duration of her employment. Are these shortages misconduct connected with work such that Claimant is disqualified from receiving unemployment benefits, as Employer claims, or are they simply poor job performance not rising to the level of misconduct, as concluded by the Commission?
The determination of misconduct connected with work is a question of law that we review de novo. Kennett Bd. of Public Works v. Shipman, 15 S.W.3d 792, 795 (Mo.App.2000). Although Claimant has the burden of establishing that she qualifies for benefits, Employer has the burden to prove a claim of misconduct connected with work. Miller v. Kansas City Station Corp., 996 S.W.2d 120, 124 (Mo.App.1999). If the Employer carries such burden, and:
if a deputy finds that a claimant has been discharged for misconduct connected with the claimant's work, such claimant shall be disqualified for waiting week credit and benefits, and no benefits shall be paid nor shall the cost of any benefits be charged against any employer for any period of employment within the base period until the claimant has earned wages for work insured under the employment laws of this state or any other state as prescribed in this section.
Section 288.050.2.
The phrase "misconduct connected with the claimant's work" is not defined in Chapter 288,[3] but has been consistently defined by our courts as the following:
"[A]n act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer."
City of Branson v. Santo, 111 S.W.3d 910, 913 (Mo.App.2003) (quoting Sain, v. Labor & Indus. Rel. Comm'n, 564 S.W.2d 59, 62 (Mo.App.1978)).
Willful misconduct can be established when the claimant consciously disregards the interest of the employer by action or inaction. Hurlbut v. Labor & Indus. Rel. Comm'n, 761 S.W.2d 282, 285 (Mo.App.1988). The violation of a reasonable work rule can constitute misconduct. Id. There is a "vast distinction" between the violations of an employer's rule that may justify termination as opposed to a violation of an employer's rule that would warrant a determination of misconduct connected with work. McClelland v. Hogan Personnel, L.L.C., 116 S.W.3d 660, 665 (Mo.App.2003).
Keeping in mind that Employer had the burden of proving misconduct and that factual findings of the Commission are conclusive, we find that Employer failed to prove that Claimant willfully or deliberately violated Employer's employee policies. Claimant testified that she had no explanation for the shortages and that she had worked tills all her life and never had *587 this problem. Claimant specifically denied that she was stealing the money and testified that she would never deliberately make a mistake. The Commission apparently believed Claimant's testimony.
The stated reason for Claimant's discharge was the shortages. There were numerous days when Claimant's cash drawer was short. Employer's policy tolerated shortages up to five dollars per day, but Claimant exceeded that on six occasions in June 2004. The former store manager testified that he retained Claimant as a cashier for four months despite her shortages. He stated that he personally believed she was stealing the money but had no witnesses to that, nor did he monitor her activities when he had the suspicions. The former store manager admitted that he had no evidence that Claimant was stealing or mishandling the money other than the record of the shortages. When the manager confronted Claimant about the shortages, she had no explanation. In addition, Claimant testified that after she counted her till it was left in an office where other people had access to it. Employer's representative did not deny Claimant's assertion, but instead stated that it had never been a problem.
The above facts also demonstrate that Employer failed to carry its burden of proving that Claimant violated an Employer's rule to such an extent as to amount to a wanton or willful disregard of Employer's interest or a deliberate violation of Employer's rules or negligence in such a degree as to manifest culpability, wrongful intent, or evil design when her till was short of money. The Commission found that although Claimant had cash shortages, this fell short of misconduct on her part. The record reflects that Claimant's shortages began early in her employment, but she was retained as a cashier for an additional four months. Although store managers may have had personal suspicions that Claimant was stealing, no actions were taken to monitor her. Employer failed to offer any evidence that Claimant violated any of Employer's money-handling policies other than its policy limiting shortages to five dollars per day. Employer simply asked the Commission to infer requisite willful and deliberate intent from the fact that shortages existed.
The evidence in the record equally supports three factual inferences in that regard. First, Claimant regularly stole from Employer. Second, some third party regularly stole from Employer. Third, Claimant either lacked the ability or carelessly failed to properly keep tract of the funds in her till, i.e., poor job performance. Employer completely failed to offer any evidence that the first inference was any more likely to be true than the second or the third. The lack of such evidence by the Employer supports the Commission's conclusion that Employer failed to prove that Claimant was guilty of misconduct connected with work. Competent and substantial evidence supports the Commission's decision awarding benefits to Claimant. Employer's first point is denied.
5) Claimant's Eligibility for Benefits for July 10, 2005 through July 23, 2005 Appeal No. 27311
Employer's second point claims the Commission erred in determining that Claimant was eligible for benefits for July 10 through July 23, 2005, finding that Claimant was physically able to work, available for work and earnestly and actively seeking work during that period. Employer attacks these findings on three grounds. First, Claimant was unable to work due to Claimant's vision problem. Second, Claimant was unavailable for work due to her mandatory participation in a recovery program. Third, Claimant *588 placed unreasonable restrictions on her search for employment by "refusing to take employment which paid less than six dollars per hour."
An unemployed claimant is eligible for benefits if they are able to work and are "available" for work. Section 288.040. To be considered available for work, the claimant must have been "actively and earnestly" looking for work. Id. The expression "available for work" is not defined in section 288.040.1(2), and differs from case to case; however, a claimant must clearly hold a genuine attachment to the labor market and be able, willing, and ready to accept suitable work. Missouri Div. of Emp. Sec. v. Labor & Indus. Rel. Comm'n, 651 S.W.2d 145, 151 (Mo. banc 1983) (citing Producers Produce Co. v. Indus. Comm'n of Missouri, 365 Mo. 996, 291 S.W.2d 166, 177 (1956)). A claimant may render themselves unavailable for work, and thus ineligible for unemployment benefits, by imposition of unreasonable restrictions on accessibility. Scott Co. Reorganized Sch. Dist. R-6 v. Labor & Indus. Rel. Comm'n, 703 S.W.2d 528, 530 (Mo.App.1985). "A willingness to merely be employed conditionally does not meet the test of availability[,] and the determination of availability for work is largely a question of fact for the commission." Golden v. Indus. Comm'n, 524 S.W.2d 34, 38 (Mo.App.1975).
The Commission found that Claimant was ineligible for benefits for the period of June 5 to July 9, 2005, because she was physically impaired, due to the lack of eyeglasses. Claimant had an eye condition that caused double vision. Until it was corrected, this impairment hindered her ability to find work. The testimony demonstrated that Claimant received new eyeglasses that corrected her vision in mid-July. Therefore, the Commission did not err in determining that on July 10, 2005, the vision problem was corrected and was not an obstacle in Claimant's pursuit of employment. Employer has failed to point to any evidence in the record, and we can find none, where Claimant's vision problem prevented her from working after its correction by obtaining eyeglasses on July 9, 2005.
Claimant's rehabilitation program previously required that she attend classes three days per week from nine o'clock a.m. until noon. This schedule ceased on June 25, 2005, after which Claimant was required to attend one class per week at her own scheduling either during the day or in the evening. There was no evidence that such a class would in any way interfere with Claimant holding a job. Therefore, the Commission did not err in concluding that on July 10, 2005, Claimant's rehabilitation classes did not interfere with her ability to find and maintain full-time employment.
Lastly, Employer contends that Claimant limited her job search by restricting her income to at least $6.00 an hour. Employer claims that this is unreasonable since her previous job provided a wage of $5.50 an hour. There is nothing in the evidence to support Employer's contention, and its brief fails to refer to any evidence in the record supporting this allegation. Potential wage was an issue debated at the hearing, and the testimony of Claimant was that she would accept a wage of "minimum to six[,]" indicating that she was willing to work for minimum wage up to $6.00 per hour. For that reason, the Commission did not err when it determined that Claimant did not restrict her job search on the basis of wage.
Once a claimant files an initial claim and is determined to be an insured worker, a benefit year is created. Section 288.030.1(3). The benefit year is a one-year period beginning with the week in *589 which the initial claim is filed. Id. During this benefit year, the claimant may claim and receive up to twenty-six weeks of unemployment benefits, subject to a number of restrictions and qualifications. Section 288.060.4. Following a determination of employee's benefits for the particular week, if either party is aggrieved, that party can appeal. See section 288.070.4. See also Heavy Duty Trux v. Labor & Indus. Rel. Comm'n, 880 S.W.2d 637, 645 (Mo.App.1994). Eligibility for benefits is established each week, and though a claimant may be eligible one week, he or she may not be eligible another week. Id. at 645. The restrictions of eligibility that Employer complains of were resolved by Claimant on or before July 9, 2005. Therefore, the Commission did not err in concluding that Claimant was ineligible for benefits from June 5 to July 9, 2005 and eligible for benefits from July 10 to July 23, 2005. Employer's point two is denied.
6) Alleged Failure to Admit Division Employment Packet Into Evidence Appeals No. 27309 and 27311
It is difficult to ascertain Employer's claim on this issue. There was a hearing in connection with each appeal, and in both hearings the Referee refused the admission of some sort of evidence. Rule 81.12(a)[4] provides that "[t]he record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented[.]" However, we cannot identify "the division employment packet" to which Employer refers.
Rule 84.04 outlines the proper contents for an appellant's brief. Employer's arguments fail to cite specific page references to the legal file or transcript, in violation of Rule 84.04(i), and Employer fails to submit in its appendix copies of the "papers" it argues were unfairly excluded from evidence, in violation of Rule 84.04(h).
With these deficiencies, this Court cannot determine or locate that evidence which Employer suggests created error in its exclusion. A brief that does not comply with Rule 84.04 preserves nothing for appellate review. Libberton v. Phillips, 995 S.W.2d 66, 67 (Mo.App.1999). Claims of error that are not properly briefed "shall not be considered in any civil appeal." Rule 84.13(a). When a brief fails to comply with the applicable rules and does not sufficiently advise the court of the contentions asserted and the merit thereof, "the court is left with the dilemma of deciding that case (and possibly establishing precedent for future cases) on the basis of inadequate briefing and advocacy or undertaking additional research and briefing to supply the deficiency." Thummel v. King, 570 S.W.2d 679, 686 (Mo.1978). It is not the function of an appellate court to search the record to identify possible errors and research any issues so revealed. Id.
If we were to review Employer's third allegation, we would be acting as an advocate for Employer. Id. This we will not do. An appellate court will not supply the deficiencies of an inadequate brief by independent, additional research, because to do so would be inherently unfair to the opposition and parties in other cases awaiting disposition on appeal. Id.
Further, we decline plain error review in this case. Plain error review, which is discretionary under Rule 84.13(c), is generally not appropriate where an appellant fails to identify wherein and why there was error. Marks v. Hopkins, 952 S.W.2d 747, 748 (Mo.App.1997). Employer's third point is denied.
*590 7) Decision
We find that competent and substantial evidence supports the Commission's decision awarding benefits to Claimant in each appeal. The decisions of the Commission in Appeal No. 27309 and Appeal No. 27311 are affirmed.
RAHMEYER, P.J., and PARRISH, J., concur.
NOTES
[1] All references to constitutional provisions are to the Missouri Constitution of 1945.
[2] All references to statutes are to RSMo 2000, unless otherwise specified.
[3] Effective January 1, 2005, the term "misconduct" was defined by statute in Section 288.030, RSMo Supp.2004, adopting in large part the definition from 76 Am.Jur.2d, Unemployment Compensation § 52, p. 945 quoted in Laswell v. Indus. Comm'n, 534 S.W.2d 613, 616 (Mo.App.K.C.D.1976). However, because all of the acts alleged to be misconduct in the instant case occurred before January 2005, the new statutory definition is not applicable.
[4] All references to Rules are to Missouri Court Rules 2005, unless otherwise specified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616876/ | 190 S.W.3d 318 (2006)
Joseph Michael SCHRIMSHER, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 2004-SC-0544-MR.
Supreme Court of Kentucky.
April 20, 2006.
*322 Margaret Foley Case, Appeals Branch Manager, Department of Public Advocacy, Julie Namkin, Assistant Public Advocate, Frankfort, Counsel for Appellant.
Gregory D. Stumbo, Attorney General, State Capitol, Michael Harned, Bryan D. Morrow, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
COOPER, Justice.
A McCracken Circuit Court jury convicted Appellant, Joseph Michael Schrimsher, of three counts of wanton assault in the first degree, KRS 508.010(1)(b), one count of wanton assault in the second degree, KRS 508.020(1)(c), and one count of criminal abuse in the first degree, KRS 508.100. He was sentenced to twenty years for each conviction of first-degree assault and ten years for the conviction of second-degree assault, to be served concurrently, and an additional ten years for the conviction of criminal abuse, to be served consecutively, for a total of thirty years in prison. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).
On February 23, 2003, A.S., Appellant's six-month-old daughter, was presented to the emergency room at Western Baptist Hospital in Paducah, Kentucky, by her biological mother, Erica Porter, for examination of swelling on the back of the child's head. In addition to the swelling, A.S. had bruises and scratches on her face. A C.T. scan revealed that A.S. had multiple skull fractures on both sides of her head. She was transferred to Kosair Children's Hospital in Louisville, Kentucky, and hospital officials contacted the social services division of the Cabinet for Families and Children. Further examination of A.S. revealed that, in addition to five skull fractures, she had the following injuries (in varying stages of healing): several contusions or abrasions around her head, neck, and thigh, multiple rib fractures on both her left and right sides, fractures of the tibia and fibula of her right leg, and a lacerated liver. Additionally, she was in a state of severe malnutrition (the basis for the indictment and conviction of criminal abuse). Both Porter and Appellant, A.S.'s biological father and Porter's live-in boyfriend, were indicted for various degrees of assault or complicity to assault and criminal abuse.
Appellant now challenges his convictions, asserting five counts of reversible *323 error, viz: (1) failure to sever his trial from Porter's and improper redaction of Porter's out-of-court statements; (2) failure of the indictment and the jury instructions on assault to specify what conduct on his part caused A.S.'s injuries; (3) insufficiency of the evidence to support his convictions; (4) denial of Appellant's request to show the entirety of his videotaped police interrogation; and (5) failure to instruct the jury on assault under extreme emotional disturbance. Finding no error, we affirm.
I. FAILURE TO SEVER.
Appellant argues that the trial court's denial of his motion to sever his trial from Porter's violated his Sixth Amendment right of confrontation. Because the Commonwealth intended to introduce out-of-court admissions made by Porter during a police interrogation that tended to incriminate Appellant, Appellant moved for a severance pursuant to RCr 9.16 or, alternatively, for a redaction of any of Porter's statements made during the interrogation that inculpated him. The Commonwealth recognized the potential confrontation problem and prepared a redacted transcript of Porter's statements. The trial court denied Appellant's motion to sever, but granted the motion to redact. Appellant claims that the Commonwealth's redacted transcript still contained statements incriminating him.
We review a trial court's ruling on a motion to sever for an abuse of discretion. Foster v. Commonwealth, 827 S.W.2d 670, 679-80 (Ky.1991); Boggs v. Commonwealth, 424 S.W.2d 806, 808 (Ky. 1966); Smith v. Commonwealth, 375 S.W.2d 819, 820 (Ky.1964). A criminal defendant is entitled to a severance only upon a showing, prior to trial, that joinder would be unduly prejudicial. RCr 9.16; Humphrey v. Commonwealth, 836 S.W.2d 865, 868 (Ky.1992). Appellant argues that denial of his motion to sever was unduly prejudicial because his right to confrontation was violated when the Commonwealth introduced admissions made by Porter during its case-in-chief without first calling Porter as a witness.
The Sixth Amendment to the United States Constitution guarantees a defendant in any prosecution the right to confront all witnesses against him. Pointer v. Texas, 380 U.S. 400, 400-401, 85 S. Ct. 1065, 1066, 13 L. Ed. 2d 923 (1965). The introduction of a non-testifying co-defendant's admission that expressly implicates the defendant violates the defendant's right of confrontation. Bruton v. United States, 391 U.S. 123, 137, 88 S. Ct. 1620, 1628, 20 L. Ed. 2d 476 (1968). However, a Bruton problem may be cured by an appropriate redaction of the co-defendant's confession, so long as "the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 1709, 95 L. Ed. 2d 176 (1987); Barth v. Commonwealth, 80 S.W.3d 390, 394 (Ky.2001).
[A] joint trial utilizing a properly redacted statement is appropriate where given the totality of the circumstances no substantial prejudice will result. It is appropriate where the statement does not provide details that point unerringly to the nonconfessing defendant. Indeed, although inappropriate, it is not reversible error where the proof against the nonconfessing codefendant is so overwhelming that no possible prejudice resulted, the "harmless beyond a reasonable doubt" standard that applies to constitutional error. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 711 (1967).
Cosby v. Commonwealth, 776 S.W.2d 367, 370 (Ky.1989), overruled on other grounds *324 by St. Clair v. Roark, 10 S.W.3d 482, 487 (Ky.1999).
A redaction that is facially valid may still amount to a Sixth Amendment violation if it can only be reasonably interpreted as inculpating the defendant. Gray v. Maryland, 523 U.S. 185, 188, 118 S. Ct. 1151, 1153, 140 L. Ed. 2d 294 (1998); Barth, 80 S.W.3d at 395. However, the introduction of a redacted statement that improperly incriminates a co-defendant does not violate the Sixth Amendment if the declarant subsequently testifies and is available for cross-examination, even if the redacted statement is introduced prior to the declarant's testimony. Nelson v. O'Neil, 402 U.S. 622, 629-30, 91 S. Ct. 1723, 1727, 29 L. Ed. 2d 222 (1971); Davis v. Commonwealth, 967 S.W.2d 574, 579 (Ky.1998).
In the case sub judice, Porter testified in her own defense and was cross-examined by Appellant's counsel. As such, we find no prejudice resulting from the trial court's denial of Appellant's motion to sever or the introduction of Porter's redacted statements.
II. DUE PROCESS.
Appellant argues that the indictment charging him with four counts of assault in the first degree was insufficient under the Due Process Clause because it lacked adequate detail, thus did not give adequate notice regarding the conduct for which he was prosecuted. He also argues that the indictment and instructions lacked sufficient detail regarding his alleged criminal conduct, thus implicating the proscription against double jeopardy.
We note at the outset that any alleged error as to the indictment is unpreserved. The Commonwealth filed a bill of particulars in response to Appellant's motion for such. The record does not reflect any objection by Appellant to the sufficiency of the bill of particulars as filed. A party's failure to object to a bill of particulars renders that objection unpreserved for review. Thomas v. Commonwealth, 931 S.W.2d 446, 450 (Ky.1996); Howard v. Commonwealth, 554 S.W.2d 375, 378 (Ky. 1977); see also Lane v. Commonwealth, 956 S.W.2d 874, 876 (Ky.1997). Thus, we examine any alleged error with respect to the indictment for palpable error under RCr 10.26.
The indictment read as follows:
In the period between February 10, 2003 and February 25, 2003, in McCracken County, Kentucky, the defendant, Joseph Michael Schrimsher, committed the offense of first-degree assault, when under circumstances manifesting extreme indifference to the value of human life, he wantonly engaged in conduct which created a grave risk of death to [A.S.], an infant, and thereby caused multiple skull fractures to [A.S.]. . . .
Each of the remaining three counts of assault in the first degree contained identical language, except for differences in the time periods alleged, and each described a different injury that was caused by Appellant's conduct, i.e., multiple rib fractures, a lacerated liver, and two leg fractures.
A. Adequate Notice.
Appellant argues that the indictment failed to give him notice of the crimes for which he was being prosecuted because none of the four charges were "anchored to four distinguishable acts." Specifically, he asserts that due process requires the indictment to set forth specific acts of conduct or "occurrences"e.g., striking the victim with his fist, striking the victim with an instrument, hurling the victim to the groundin order to provide adequate notice.
*325 The sufficiency of an indictment is governed by RCr 6.10(2), which states: "The indictment ... shall contain, and shall be sufficient if it contains, a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged." "The indictment need not detail the essential elements of the charged crime, so long as it fairly informs the accused of the nature of the charged crime. . . and if it informs the accused of the specific offense with which he is charged and does not mislead him." Ernst v. Commonwealth, 160 S.W.3d 744, 752 (Ky.2005) (quotations omitted); see also Parrish v. Commonwealth, 121 S.W.3d 198, 202 (Ky. 2003); Thomas v. Commonwealth, 931 S.W.2d 446, 450 (Ky.1996); Wylie v. Commonwealth, 556 S.W.2d 1, 2-3 (Ky.1977); Howard v. Commonwealth, 554 S.W.2d 375, 377 (Ky.1977) ("[A]n indictment is sufficient if it fairly informs the defendant of the nature of the crime with which he is charged, without detailing the essential factual elements.") (citation and quotation omitted).
Assault is a "result offense," with bodily injury being the prohibited result. Commonwealth v. Hager, 41 S.W.3d 828, 831 (Ky.2001) (citing Robert G. Lawson, Criminal Law Revision in Kentucky, Part IHomicide and Assault, 58 Ky. L.J. 242, 263 (1969-70)). The indictment at issue here apprised Appellant of the specific offense with which he was charged (first-degree assault), the nature of the charged crime (inflicting various injuries upon A.S.), and was not misleading. Contrary to Appellant's contention, these facts are sufficiently detailed to enable him to set forth a defensee.g., that A.S. was not injured or, if she was, that he did not inflict the injuries; or that someone else (Porter?) had access to A.S. and might have inflicted the injuries. To require the indictment to set forth the level of detail sought by Appellant would render an assault against an infant virtually incapable of indictment barring eye-witness testimony, as the victim in such a case cannot provide testimony on her own behalf. The indictment sufficiently notified Appellant of the nature of the offenses for which he was indicted.
B. Double Jeopardy.
Under the Due Process Clause, the sufficiency of an indictment is measured by two criteria: first, that an indictment sufficiently apprise a defendant of the criminal conduct for which he is called to answer; and, second, that the indictment and instructions together provide adequate specificity that he may plead acquittal or conviction as a defense against any future indictment for the same conduct and that he not be punished multiple times in this action for the same offense. Russell v. United States, 369 U.S. 749, 763-64, 82 S. Ct. 1038, 1047, 8 L. Ed. 2d 240 (1962); Valentine v. Konteh, 395 F.3d 626, 634-35 (6th Cir.2005). Thus, Appellant argues that the lack of specificity in the indictment and instructions for assault not only gave him inadequate notice but also implicated the proscription against double jeopardy. For an indictment to be sufficient, "the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged." Hamling v. United States, 418 U.S. 87, 117-18, 94 S. Ct. 2887, 2907-08, 41 L. Ed. 2d 590 (1974) (citation and quotation omitted).
Appellant argues that the indictment and the jury instructions premised thereon violated the proscription against double jeopardy because they did not explicitly *326 state which conduct by him caused the injuries that formed the bases for his convictions. The instruction for first-degree assault stated:
INSTRUCTION NO. 3
(First-Degree Assault)
(Skull Fractures)[1]
You will find [Appellant] guilty of first-degree assault . . . if, and only if[,] you believe from the evidence beyond a reasonable doubt all of the following:
A. That . . . he caused serious physical injury to [A.S.] by fracturing her skull.
AND
B. That in so doing, [Appellant] was wantonly engaging in conduct which created a grave risk of death to her and thereby injured [A.S.] under circumstances manifesting extreme indifference to the value of human life.
(Emphasis added.) The second-degree assault instruction included similar language regarding the criminal conduct for which Appellant was charged, viz, "he inflicted an injury on [A.S.] by fracturing her skull." Each series of instructions also contained an instruction requiring the jury, if guilt was found, to state in its verdict whether the injury resulted from an act that was separate from the acts that caused A.S.'s other injuries. Appellant argues that, because the instructions did not state what physical conduct on his part caused each injury, he would be unable to plead conviction as a defense against any possible future prosecution, thus removing his protection against double jeopardy. He relies upon Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005), and Miller v. Commonwealth, 77 S.W.3d 566 (Ky.2002), in support of this proposition.
In Valentine, a defendant's conviction of twenty counts of child rape and twenty counts of felonious sexual penetration was reversed because each count of the indictment was a "carbon copy" of the others (for rape or sexual abuse), with no differentiation as to time, method, or any other distinguishable facts. The bill of particulars simply set forth the same information contained in the indictment, but named the family home as the location of all forty offenses. The only testimony at trial was the victim's estimate that the abuse occurred "twenty or fifteen times" coupled with a single description of "typical" abusive behavior, the only distinguishing facts being the victim's estimate of how many times the abuse occurred in one of four rooms in the home. Valentine, 395 F.3d at 633. In reversing the defendant's convictions because he was given inadequate notice of the charges against him, the Sixth Circuit Court of Appeals explained:
In its charges and in its evidence before the jury, the prosecution did not attempt to lay out the factual bases of forty separate incidents that took place. Instead, the 8-year-old victim described "typical" abusive behavior by Valentine and then testified that the "typical" abuse occurred twenty or fifteen times. Outside of the victim's estimate, no evidence as to the number of incidents was presented. . . . The jury could not have found Valentine guilty of Counts 1-5, but not Counts 6-20. Nor could the jury have found him guilty of Counts 1, 3, 5 and 7, but not the rest. Such a result would be unintelligible, because the criminal counts were not connected to distinguishable incidents.
Id. at 632-33; see also Miller, 77 S.W.3d at 576 (finding reversible error where victim described facts surrounding one instance *327 of rape and sodomy and estimated the number of times that conduct was repeated, but did not offer any additional information differentiating the first instances from the remaining 224 instances of rape or sodomy for which the defendant was convicted). Unlike Valentine, in the case sub judice each count of the indictment and the instruction on that count was distinguished from the others by a statement of the type of injury caused by each assault, i.e., fractured ribs, fractured leg, fractured skull, or lacerated liver. The evidence adduced at trial further distinguished each injury listed in the indictment or instructions by establishing different (though in some cases overlapping) time frames in which each injury occurred.[2]
A conviction of assault in the first, second, or fourth degree requires proof of a physical injury, serious or otherwise. See KRS 508.010-508.030. Therefore, Appellant could defend himself from double jeopardy in any future prosecution for causing the same physical injury to A.S. by pleading his conviction in the case sub judice and requiring the subsequent prosecution to establish a different physical injury or time frame of commission.
The court in Valentine noted that, when evaluating the sufficiency of a factually vague indictment, courts "must acknowledge the reality of situations where young child victims are involved." Valentine, 395 F.3d at 632. With no eyewitness to the criminal conduct except for one or both of the two co-defendants and the infant victim, the specificity in the indictment and instructions was adequate to avoid double jeopardy.
III. SUFFICIENCY OF THE EVIDENCE.
Appellant argues in a similar vein that, because the Commonwealth did not prove what conduct on his part caused A.S.'s injuries, the evidence was insufficient to sustain his convictions of first- or second-degree assault.
An appellate court reviews a ruling on a motion for a directed verdict of acquittal to determine "whether, under the evidence viewed as a whole, it was clearly unreasonable for the jury to have found the defendant guilty." Bray v. Commonwealth, 177 S.W.3d 741, 746 (Ky.2005); see also Beaty v. Commonwealth, 125 S.W.3d 196, 203 (Ky.2003); Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky.1983). On a defendant's motion for a directed verdict, a trial court must draw all fair and reasonable inferences in the Commonwealth's favor. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). "The Commonwealth bears a burden of proof in establishing each element of a charged crime, else a motion for a directed verdict by the defendant must be properly entertained." Williams v. Commonwealth, 721 S.W.2d 710, 712 (Ky.1986).
A. Conduct that Caused Injuries.
Appellant claims entitlement to a directed verdict for each count of assault because the Commonwealth failed to present evidence that indicated which of A.S.'s injuries was caused by Appellant's conduct, which conduct caused which injury, and additionally whether the injuries were caused by four separate acts rather than one. The Commonwealth responded that Dr. Ralston, an Assistant Medical Examiner, testified to four potential time frames, possibly overlapping but possibly distinct, *328 in which each injury could have been sustained, then the Commonwealth recited the list of instances of conduct from which a jury could reasonably find guilt. The judge overruled Appellant's motion and stated that the "separate acts" jury instructions[3] served to ensure that the jury would determine whether there was evidence to support each count of assault.
The Commonwealth may prove guilt by circumstantial evidence. Varble v. Commonwealth, 125 S.W.3d 246, 254-55 (Ky.2004); Blades v. Commonwealth, 957 S.W.2d 246, 250 (Ky.1997). Circumstantial evidence is evidence that makes the existence of a relevant fact "more likely than not." Timmons v. Commonwealth, 555 S.W.2d 234, 237-38 (Ky.1977). The test of the sufficiency of the evidence on a motion for a directed verdict is the same for circumstantial evidence as for direct evidence. Davis v. Commonwealth, 795 S.W.2d 942, 945 (Ky.1990); Sawhill, 660 S.W.2d at 4.
The jury heard testimony regarding admissions by Appellant that provided direct evidence of different abusive acts he perpetrated against A.S., e.g., that he threw A.S. to the floor on one occasion, causing blood to come out of her mouth; that he would "torture" A.S. at times; that he "jerks" A.S. around; that he hit A.S. in the mouth hard enough to draw blood on more than one occasion; that he kicked a car seat while A.S. was strapped into it; that on occasion he spanked A.S. "too hard." Furthermore, Porter provided direct and circumstantial evidence of the same, e.g., that she "knew" Appellant spanked A.S. with a belt; that she discovered Appellant had wrapped A.S. in a blanket so tightly that A.S. turned purple; that Porter heard Appellant smacking A.S. behind closed doors; that she had come home on multiple occasions to find blood stains on the carpet; that she would discover knots or bruises on A.S. The jury also heard testimony by Dr. Ralston that a C.T. scan of A.S. revealed that, within the fourteen days prior to her presentation to the hospital, A.S. had sustained five skull fractures, several rib fractures, a lacerated liver, and two fractures in one leg. The Commonwealth proved multiple acts of assault and multiple injuries, some occurring in different time frames. The fact that it could not specifically prove which particular act caused which particular injury did not require a directed verdict of acquittal.
B. Serious Physical Injury.
Appellant additionally argues that there was insufficient evidence to convict him of second-degree assault for causing the leg fractures because KRS 508.020 requires a "serious physical injury," and no reasonable jury could conclude that the leg fractures constituted a "serious physical injury" based on the testimony of Dr. Ralston.
The instruction at issue stated:
INSTRUCTION NO. 16
(Second Degree Assault)
(Leg Fractures)
[Y]ou will find the Defendant guilty of Second-Degree Assault, under this instruction if, and only if you believe from the evidence beyond a reasonable doubt all of the following:
*329 A. That in this county between January 25, 2003 and February 25, 2003, and before the finding of indictment herein, he inflicted an injury upon [A.S.] by fracturing her leg;
AND
B. That in so doing, the Defendant
1) intentionally caused a serious physical injury to [A.S.];
OR
2) wantonly caused a serious physical injury to [A.S.] by means of a dangerous instrument.
(Emphasis added.) The instructions defined "serious physical injury" pursuant to KRS 500.080(15) as a "physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ." "KRS 500.080(15) sets a fairly strict level of proof which must be met by sufficient evidence of injury, medical and/or non-medical. . . ." Prince v. Commonwealth, 576 S.W.2d 244, 246 (Ky.App.1978). The seriousness of a physical injury depends upon the nature of the injury as well as the victim's characteristics. See, e.g., Johnson v. Commonwealth, 926 S.W.2d 463 (Ky. App.1996); Cooper v. Commonwealth, 569 S.W.2d 668 (Ky.1978). There was insufficient evidence to find that the leg fractures created a substantial risk of death (because Dr. Ralston testified that a leg fracture did not create a substantial risk of death) or caused a "serious and prolonged disfigurement" (because uncontroverted testimony established that the fracture was not visible to the naked eye and would heal without treatment).
However, there was sufficient evidence for the jury to conclude that the leg fractures caused a "prolonged impairment of health." Dr. Ralston testified that the injury would take up to two months to heal, that the fractures would have been very painful when sustained, and that the pain would have been exacerbated by A.S.'s concurrent state of malnutrition. Though an impairment of health must be "prolonged" in order to constitute a "serious physical injury" under KRS 500.080(15), see, e.g., Parson v. Commonwealth, 144 S.W.3d 775, 786 (Ky.2004), a reasonable jury could conclude that two months of healing time is "prolonged" with respect to the young life of a six-month-old infant.
Thus, viewing the evidence as a whole and drawing all inferences in favor of the Commonwealth, it was not "clearly unreasonable for the jury to have found the [Appellant] guilty." Bray, 177 S.W.3d at 746. The trial court properly overruled Appellant's motion for a directed verdict of acquittal. Benham, 816 S.W.2d at 187.
IV. RULE OF COMPLETENESS.
During its case-in-chief, the Commonwealth had Kentucky State Police trooper Tim Reed testify to statements made by Appellant and Porter during their separate interrogations. On cross-examination of Trooper Reed, Appellant sought to play the videotape of the entire police interrogation of Appellantmore than an hour of footagein a purported effort to show how the Commonwealth had taken Appellant's statements out of context. The Commonwealth objected on the grounds that Appellant's videotaped statements were hearsay because, while admissible when offered by the Commonwealth under KRE 801A(b) (admissions of parties), they were inadmissible if offered by Appellant because Appellant was not a "party opponent" under the rule, and no other hearsay exception applied. Appellant responded that the "rule of completeness" required admission of the entirety of an out-of-court statement once an opposing *330 party has properly introduced a portion of that statement.
The trial court sustained the Commonwealth's objection on hearsay grounds and did not allow Appellant to play the videotape during his cross-examination of Reed. However, after both Appellant and Porter cross-examined Reed, the following colloquy occurred at the bench.
Judge: I have been . . . reviewing this KRE 106 completeness rule and comparing it with the hearsay exceptions. . . . Normally [a statement] is going to have to comply with hearsay and 106. But if you've got some statement that you think changes the meaning of a statement elicited by [the Commonwealth's] witness, the fair thing to do is, even if it's hearsay, to let you bring that in, because 106. . . in this case at least, would trump hearsay. But it's got to be closely related, and it's got to really affect how the jury would interpret that statement.
Defense: Some of those things would be, you know, `I didn't realize what I had done,' `I didn't mean to hurt her,' you know, `I love her,' `I didn't mean to'I mean, those things are in there also, which, without those things being in there, that doesn't give the true picture . . . .
Judge: Okay. Well, if there's things such as that that you want to bring in through the witness, uh, you can do that, and we'll let you getyou know, re-question on that point. I think that's the fair way to go about it.
. . . .
Pros.: But you don't play the whole hour and fifteen minute tape.
Judge: No.
Thus, the trial court ruled that Appellant could cross-examine Reed from the transcript of the interrogation as to otherwise inadmissible hearsay statements made by Appellant during the interrogation, but the videotape could not be played for the jury in its entirety. Appellant did not object to the judge's ruling on this issue and was permitted on recross-examination to elicit statements surrounding those to which Reed testified on direct. Therefore, the error claimed on appeal was not preserved. Thus, we review the issue only for palpable error under RCr 10.26.
A trial court's ruling under KRE 106 (i.e., the "rule of completeness") is discretionary. KRE 106 Drafters' Commentary 1989; see also United States v. Mussaleen, 35 F.3d 692, 696 (2d Cir.1994); United States v. Maccini, 721 F.2d 840, 844-45 (1st Cir.1983); Robert G. Lawson, The Kentucky Evidence Law Handbook, § 1.20[3][b], at 68-69 (4th ed.2003).
KRE 106 provides:
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
(Emphasis added.) See also Soto v. Commonwealth, 139 S.W.3d 827, 865-66 (Ky. 2004); Young v. Commonwealth, 50 S.W.3d 148, 169 (Ky.2001); Lawson, supra § 1.20[3], at 67-71.
However, a party purporting to invoke KRE 106 for the admission of otherwise inadmissible hearsay statements may only do so to the extent that an opposing party's[4] introduction of an incomplete *331 out-of-court statement would render the statement misleading or alter its perceived meaning. "The issue is whether `the meaning of the included portion is altered by the excluded portion.'" Young, 50 S.W.3d at 169 (quoting Commonwealth v. Collins, 933 S.W.2d 811, 814 (Ky.1996)).
The single purpose of considering the utterance as a whole is to be able to put a correct construction upon the part which the first party relies upon, and to avoid the danger of mistaking the effect of a fragment whose meaning is modified by a later or prior part . . . .
Lawson, supra, § 1.30[2], at 67 (quoting 7 Wigmore, Evidence in Trials at Common Law, § 2550 (Chadbourne rev.1978)). Contrary to Appellant's position, KRE 106 does not "open the door" for introduction of the entire statement or make other portions thereof admissible for any reason once an opposing party has introduced a portion of it.
The completeness doctrine is based upon the notion of fairnessnamely, whether the meaning of the included portion is altered by the excluded portion. The objective of that doctrine is to prevent a misleading impression as a result of an incomplete reproduction of a statement. This does not mean that by introducing a portion of a defendant's confession in which the defendant admits the commission of the criminal offense, the Commonwealth opens the door for the defendant to use the remainder of that out-of-court statement for the purpose of asserting a defense without subjecting it to cross-examination.
Gabow v. Commonwealth, 34 S.W.3d 63, 69 n. 2 (Ky.2000) (citations and quotations omitted) (emphasis added). That is precisely what Appellant was endeavoring to do by attempting to introduce the exculpatory portions of the videotape, i.e., introduce his own exculpatory statements without subjecting them to cross-examination. (Appellant did not testify at trial.) His statements made during the interrogation were inadmissible hearsayadmissible when offered by the Commonwealth as admissions of a party opponent, KRE 801A(b), but inadmissible when offered by himself. Id. Accordingly, KRE 106 applied only to the extent that fairness required the introduction of additional portions of the interrogation to correct or guard against any likely misperception that would be created by an opponent's presentation of a fragmented version of the statement.
After reviewing KRE 106, the trial judge determined that it would be fair to allow cross examination from the transcript on subjects "closely related" if they "really effect how the jury would interpret that statement." Far from constituting an abuse of discretion, this was a proper enunciation and application of the rule. Appellant never explained to the trial court how putting Appellant's statements "in context" by playing the entire videotape would correct any likely misconception as to their meaningor what misconception was likely at all. We rejected a similar argument in Young v. Commonwealth, 50 S.W.3d at 169, where a defendant sought to introduce six hours of a recorded interrogation to show how the statements introduced by the Commonwealth "evolved" throughout the interrogation. Though we ultimately held in Young that the alleged error was unpreserved, we explained that introduction was not necessary under KRE 106 because the meaning of the included portion was not altered by the excluded portion. Id. Here, we find no error, let alone palpable error, in the exclusion of the entire videotaped interrogation.
*332 V. ASSAULT UNDER EXTREME EMOTIONAL DISTURBANCE.
Appellant argues that the jury should have been instructed on assault under extreme emotional disturbance as a lesser included offense of each count of first-degree assault. KRS 508.040. That statute specifically limits its application to prosecutions "in which intentionally causing physical injury or serious physical injury is an element of the offense," and the Commonwealth argues that Appellant was indicted for and convicted of only wanton assaults. That, however, is only partially true, because the conviction of second-degree assault was premised on an instruction that permitted conviction on alternative theories of intentional infliction of serious physical injury or wanton infliction of serious physical injury by means of a dangerous instrument. Furthermore, each instruction on first-degree assault was followed by an instruction on second-degree assault as a lesser included offense that included the same alternative theory of intentional conduct. Thus, if supported by the evidence, Appellant would have been entitled to additional instructions on assault under extreme emotional disturbance as lesser included offenses of each instruction on second-degree assault. This issue was preserved for appeal by Appellant's tendered instructions on assault under extreme emotional disturbance, which the trial court rejected. RCr 9.54(2).
Under KRS 508.040 (by reference to KRS 507.020(1)(a)), a defendant found guilty of intentional first-degree assault, KRS 508.010, or second-degree assault, KRS 508.020, may have his sentence reduced "if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be." KRS 507.020(1)(a) (emphasis added).
In McClellan v. Commonwealth, 715 S.W.2d 464 (Ky.1986), we said that an extreme emotional disturbance is "a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes." Id. at 468-69. Further, "[e]xtreme emotional disturbance is established only by a showing of some dramatic event which creates a temporary emotional disturbance." Baze v. Commonwealth, 965 S.W.2d 817, 823 (Ky.1997) (citations and quotations omitted); see also Whitaker v. Commonwealth, 895 S.W.2d 953, 954 (Ky.1995); Cecil v. Commonwealth, 888 S.W.2d 669, 673 (Ky. 1994); Bowling v. Commonwealth, 873 S.W.2d 175, 179 (Ky.1993).
However, the triggering event need only be "sudden and uninterrupted." No definite time frame between the triggering event and the killing is required, so long as the EED remains uninterrupted. In fact, the onset of EED may be more gradual than the "flash point" normally associated with sudden heat of passion. In Springer [v. Commonwealth, 998 S.W.2d 439 (Ky.1999)], we said "[t]he fact that the triggering event may have festered for a time in [the defendant's] mind before the explosive event occurred does not preclude a finding that she killed her husband while under the influence of extreme emotional disturbance."
Spears v. Commonwealth, 30 S.W.3d 152, 155 (Ky.2000) (citations and quotations omitted); see also Holland v. Commonwealth, 114 S.W.3d 792, 807 (Ky.2003); *333 Fields v. Commonwealth, 44 S.W.3d 355, 359-60 (Ky.2001).
In the case sub judice, Appellant argues that the "reasonable explanation or excuse" for his extreme emotional disturbance was that A.S. would persist in crying or sucking her thumb despite his insistence that she not do so, coupled with the stress of parenting both A.S., age six-months, and his son, age seventeen-months. (Appellant was unemployed and was the primary caretaker of the children while Porter was at work.)
Although "the concept of adequate provocation is broad enough to include the cumulative impact of a series of related events," Holland, 114 S.W.3d at 807, "an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor." Id. at 806; Caudill v. Commonwealth, 120 S.W.3d 635, 668 (Ky.2003) (victim's refusal of drug-addicted defendant's demand for money not a reasonable explanation or excuse); Hodge v. Commonwealth, 17 S.W.3d 824, 850 (Ky.2000) (mere resistance by victim of armed robbery not a reasonable explanation or excuse). No reasonable person would consider the ordinary stresses of childrearing, specifically an infant's crying and thumb-sucking, a "reasonable explanation" for "a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes." McClellan, 715 S.W.2d at 468-69. Compare Holland, 114 S.W.3d at 807-08 (finding erroneous refusal to instruct jury on extreme emotional disturbance where, within days of shooting, suicidal defendant with borderline personality disorder underwent back surgery, discovered boyfriend in bed with another woman, experienced police intervention over suicide threat, and was under influence of prescribed narcotics) with Foster v. Commonwealth, 827 S.W.2d 670, 678 (Ky. 1991) (holding that defendant's drug abuse and upbringing in abusive, dysfunctional family was insufficient "triggering event" to sustain instruction on extreme emotional disturbance). The trial court properly refused to instruct the jury on assault under extreme emotional disturbance.
Accordingly, the judgment of convictions and the sentences imposed by the McCracken Circuit Court are AFFIRMED.
All concur.
NOTES
[1] Among the skull fractures, rib fractures, leg fractures, and lacerated liver, a different injury was stated for each count of assault (in varying degrees).
[2] Medical testimony established windows of time in which each injury occurred based on the various stages of healing.
[3] After the instructions for first-, second-, and fourth-degree assault (with respect to each injury), the jury was given a "separate acts" instruction: "[y]ou will further state in your verdict whether you believe beyond a reasonable doubt that the act of [fracturing/lacerating] A.S.'s [skull/ribs/leg/liver] was separate from the acts which caused A.S.'s [other injuries]."
[4] KRE 106 explicitly states that an "adverse party" may require introduction; parties that are not adverse to one another may not avail themselves of the rule. Young, 50 S.W.3d at 169. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616981/ | 623 So. 2d 296 (1993)
Ex parte David G. BRONNER, et al.
(Re David G. BRONNER, et al. v. David AVANT.)
Ex parte David AVANT.
(Re David G. BRONNER, et al. v. David AVANT.)
1911014, 1911016.
Supreme Court of Alabama.
January 15, 1993.
Rehearing Denied March 5, 1993.
William T. Stephens, Montgomery, for petitioners/cross-respondents.
*297 Robin G. Laurie of Balch & Bingham, Montgomery, for respondent/cross-petitioner.
PER CURIAM.
We granted certiorari review in this case concerning retirement credit for part-time legislative employees in order to determine whether the Court of Civil Appeals erred in upholding Act No. 89-800, 1989 Ala.Acts, codified as §§ 36-27-100 to -103, Ala.Code 1975 (Cum.Supp.1989), and in its interpretation of Act. No 89-915, codified as § 36-27-53. We affirm in part (as to Act No. 89-800), reverse in part (as to Act No. 89-915), and remand.
David Avant, a part-time legislative employee of the State of Alabama, sought retirement credit in the Employees' Retirement System ("ERS") under Act. No. 89-800 and Act. No 89-915 for his part-time work. The ERS's Board of Control denied Avant's request to purchase retirement credit until the constitutionality of Act No. 89-800 could be judicially determined. Act No. 89-800 allows certain part-time legislative employees to purchase retirement credit in addition to the credit they already had, by paying specified amounts to the ERS.
The Board of Control directed its general counsel to seek a judgment declaring Act No. 89-800 unconstitutional, and the Board filed a complaint in the Circuit Court of Montgomery County, on December 12, 1989. Avant counterclaimed, seeking to be allowed to purchase additional retirement credit under Act No. 89-915 for service for which he already had retirement credit.
Judge Joseph D. Phelps held a nonjury trial on June 7, 1990. The parties stipulated as to certain facts. In an order entered December 19, 1990, Judge Phelps held that Act No. 89-800 did not violate the equal protection provisions of the state and federal constitutions, because, he concluded, it furthered the legitimate government purpose of aiding in the employment of part-time legislative employees. He also ruled that Avant was entitled to buy the retirement credit he sought under Act. No. 89-915.
The Board of Control appealed to the Court of Civil Appeals. That court affirmed with respect to the constitutionality of Act. No. 89-800, but reversed with respect to the interpretation and application of Act. No. 89-915, on the grounds that Avant had already purchased retirement credit in 1984 under Act No. 84-805 for his part-time legislative employment.
We granted certiorari review and heard oral argument in this case on the ERS's petition to review the Court of Civil Appeals' judgment with respect to the constitutionality of Act No. 89-800 and on Avant's petition to review the judgment with respect to the interpretation and application of Act No. 89-915.
Having carefully considered the record and the oral and written arguments in this case, we adopt as part of our own opinion the following order by Judge Phelps:
"The Plaintiffs [the Board of Control] argue that the act unconstitutionally provides greater retirement benefits to a favored few part-time legislative employees than are granted by the general retirement law to other part-time legislative employees, part-time state and local governmental employees and full-time legislative employees and state and local governmental employees who participate in the Employees' Retirement System of Alabama. Further, the Plaintiffs state that such disparate treatment is not justified by any state interest and is in violation of the equal protection provisions of the Alabama and United States Constitution.
"A statute violates the equal protection laws of the constitution if it is not rationally related to a legitimate government purpose. The testimony established that the purposes furthered by the Act include: saving State resources by providing incentives to part-time or temporary legislative employees to continue their employment on this basis as opposed to requiring the State to employ full-time employees to perform similar functions, when their services would only be required a few months each year; providing incentives to these part-time or temporary employees to continue in their employment, thus obviating the need to train new employees for these positions; and, providing an incentive to *298 attract and retain highly qualified new part-time or temporary employees for these positions.
"This Court has reviewed extensive briefs and heard oral arguments on the issues presented on this action. The Court finds that the purposes set out above provide a rational basis for permitting the employees set forth in Act 89-800 to purchase additional retirement time as set forth in the Act. Act No. 89-800 is not ambiguous and it is apparent that the legislature intended to provide greater benefits for part-time legislative employees who work on a regular basis when the legislature of Alabama is in session.
"In White v. Reynolds Metals Co., 558 So. 2d 373, 383 (Ala.1989), the Supreme Court states:
"`The guiding principles for courts to apply when legislative acts are challenged as unconstitutional were ably expressed in Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944):
"`"Uniformly, the courts recognize that this power is a delicate one, and to be used with great caution. It should be borne in mind, also, that legislative power is not derived either from the state or federal constitutions. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the legislature has no bounds and is as plenary as that of the British Parliament. It follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law. State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487."'
"In support of their position, Plaintiffs bring to the Court's attention Barbour County Commission v. Employees of the Barbour County Sheriff's Department, 566 So. 2d 493 (Ala.1990). In that case, certain groups of personnel employed by Barbour County alleged discrimination because they were not offered certain retirement and insurance benefits. The trial court found in favor of the employees and the Alabama Supreme Court affirmed. Although the Supreme Court found that the actions of the Barbour County Commission were arbitrary and discriminatory, the case does not forbid all classifications such as the classifications created by the legislature in the present case, which were neither arbitrary nor invidiously discriminatory. The Court in Barbour County, supra, [adopted the order of the trial court in that case. The trial court's order in Barbour County ] cited Opinion of the Justices No. 102, 252 Ala. 527, 41 So. 2d 775 (1949), which [, the trial court order said,] held:
"`[I]n order to be constitutionally permissive, it was essential that a law which sought to create classifications must do so in a manner that makes the classifications reasonable and not arbitrary and [that] any such classification must be based upon material and substantial distinctions and differences which are reasonably related to the subject matter of the legislation or considerations of policy sought to be implemented. [Also,] there must be uniformity within a particular class.' (Emphasis added [by Judge Phelps].)
"In the case at hand, the class created is part-time employees of the [legislature]. The reasons for treating these employees differently are set out above. Justice Almon in White, supra, at 388, states that `In determining whether "it was reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose," Western v. Southern Life, [Western & Southern Life Insurance Company v. State Board of Equalization of California, 451 U.S. 648, 101 S. Ct. 2070, 68 L. Ed. 2d 514] we need only inquire whether the legislature engaged in "invidious" or *299 "hostile and oppressive discrimination," Lehnhausen [v. Lake Shore Auto Parts, 410 U.S. 356, 93 S. Ct. 1001, 35 L. Ed. 2d 351].' The Court finds that there is no showing of invidious discrimination or hostile purpose.
"The Court further finds that Act No. 89-800 is not a special, private, or local law and that the Plaintiffs have failed to show that Act No. 89-800 is unconstitutional beyond a reasonable doubt. Therefore, Alabama Act No. 89-800 [must be taken as] constitutional and [is] due to be implemented by Plaintiffs.
"Further, the Court must consider the counterclaim filed by the Defendant. The Defendant argues that he should be allowed to purchase retirement in the Employees' Retirement System of Alabama specified in Alabama Act No. 89-915, which states as follows:
"`Any active and contributing member of the employees' retirement system who has vested retirement benefits may hereby claim and purchase credit in the employees' retirement system for up to four years' time for employment by the Alabama legislature prior to 1979, provided, that such member shall pay into the employees' retirement system the total amount he would have contributed had he been allowed to contribute at the position and salary level, together with interest not to exceed eight percent compounded annually from the date of service to the date of payment, and provided that he shall make such payment within one year from [May 19, 1989].'
"Based upon the evidence, the Court finds that the Defendant is an active and contributing member of the Employees' Retirement System of Alabama; he has vested retirement benefits; he had over four years' ... employment with the Alabama legislature prior to 1979; and he has attempted to claim and purchase credit in the Employees' Retirement System of Alabama for four years' ... employment by the Alabama legislature prior to 1979. Further, the Defendant has attempted to pay into the Employees' Retirement System of Alabama the total amount he would have contributed had he been allowed to do so at the position and salary level he occupied (prior to 1979), together with interest not exceeding eight percent compounded annually from the date of service to the date of his tender. The Plaintiffs are without legal authority to refuse to accept Defendant's tender because the Defendant meets all of the requirements of Act No. 89-915 and is entitled to purchase the credit there provided. It is therefore,
"ORDERED, ADJUDGED and DECREED as follows:
"(1) That Alabama Act No. 89-800 is [not to be declared unconstitutional.]
"(2) That Defendant, and any other state employees, who have attempted to purchase retirement credit specified in Alabama Act No. 89-800, are hereby allowed sixty (60) days from the date of this judgment to pay the specified amount of money into the Employees' Retirement System of Alabama and receive the benefits commensurate with their payment, and the terms of the Act.
"(3) That Defendant is entitled to prevail on his counterclaim. Plaintiffs shall allow Defendant to purchase retirement credit in the Employees' Retirement System of Alabama specified in Alabama Act No. 89-915. Defendant is allowed sixty (60) days from the date of this order to make said payments.
"(4) All costs of this action are taxed against the Plaintiffs, for which let execution issue."
We have also considered the ERS's claim that Act No. 89-800 is unconstitutional under Art. IV, §§ 45 and 68, Constitution of Alabama 1901. We find the contention that the Act violates § 45 to be without merit, on the authority of Thomas v. Niemann, 397 So. 2d 90 (Ala.1981); Opinion of the Justices No. 138, 262 Ala. 345, 81 So. 2d 277, 281 (1955); and we find the contention that the Act violates § 68 to be without merit also, on the authority of Kohen v. Board of School Comm'rs of Mobile County, 510 So. 2d 216 (Ala.1987).
We therefore affirm that portion of the judgment of the Court of Civil Appeals upholding Act No. 89-800; we reverse that *300 portion of the judgment denying Avant an opportunity to purchase credit under Act No. 89-915 for his part-time employment under the Act; and we remand this cause for proceedings consistent with this opinion.
AFFIRMED as to Act No. 89-800; REVERSED as to Act No. 89-915; AND REMANDED.
MADDOX, ALMON, SHORES, ADAMS and INGRAM, JJ., concur.
HOUSTON, J., concurs in the result.
HOUSTON, Justice (concurring in the result).
There is no equal protection clause in the Constitution of Alabama of 1901. The equal protection clause that was in previous Alabama Constitutions was purposefully deleted by the Constitutional Convention of 1901. See 2 Official Proceedings of the Constitutional Convention of 1901, pp. 1622-34, 1639-44, and 2254-60.
Likewise, §§ 1, 6, and 22 of the Alabama Constitution taken together do not guarantee the equal protection of the laws. Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 175-77 (Ala.1991) (Houston, J., concurring in the result). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920180/ | 921 So. 2d 860 (2006)
Leo JEAN-GILLES, Appellant,
v.
STATE of Florida, Appellee.
No. 4D04-2436.
District Court of Appeal of Florida, Fourth District.
March 8, 2006.
*861 Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
HAZOURI, J.
The first issue in this case is whether the trial court had jurisdiction to revoke Appellant Leo Jean-Gilles's probation where a warrant, but no affidavit, was filed prior to the termination of Jean-Gilles's probationary period. Jean-Gilles argues that because an affidavit was not filed within the requisite time period, the trial court lacked jurisdiction to revoke his probation. The state disagrees, arguing that the timely filing of an affidavit should be inferred where an amended affidavit was filed after the probationary period expired. We decline to accept the state's position and remand this case for a determination of whether an affidavit was filed prior to the expiration of Jean-Gilles's probationary period.
The applicable statute explicitly requires the filing of an affidavit and a warrant. Section 948.06, Florida Statutes (2003), reads as follows:
Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, the probationary *862 period is tolled until the court enters a ruling on the violation. Notwithstanding the tolling of probation as provided in this subsection, the court shall retain jurisdiction over the offender for any violation of the conditions of probation or community control that is alleged to have occurred during the tolling period.
§ 948.06(1), Fla. Stat. (2003) (emphasis added). In Stambaugh v. State, 891 So. 2d 1136 (Fla. 4th DCA 2005), this court addressed a similar situation where an affidavit was filed, but no warrant. Noting the statutory language, the court held that the probationary period was not tolled in Stambaugh, stating "[w]ithout the issuance of an arrest warrant, the January 28, 2004 VOP affidavit did not toll the probationary period." Stambaugh, 891 So.2d at 1139. In Sepulveda v. State, 909 So. 2d 568, 570 (Fla. 2d DCA 2005), the court explained, "[b]oth the filing of an affidavit of violation and the issuance of an arrest warrant are required to toll the probationary period. . . ." (emphasis added). We recognize the difference between a missing affidavit and a missing warrant, as a warrant cannot be obtained without a supporting affidavit. Nevertheless, the statute is clear that both are required in order for the trial court to retain jurisdiction to revoke probation. Thus, we decline to find the statute is satisfied by an inference. We therefore remand for the trial court to determine whether an affidavit was filed prior to the expiration of Jean-Gilles's probation. Although the clerk of the trial court has reported that no affidavit was filed on the date the warrant was filed, it may be that the affidavit was misfiled or was filed on a different date. We choose to allow the trial court to make a factual determination as to whether one was filed within the requisite time. If the court determines that an affidavit was not filed, it should vacate the order of revocation.
Should the trial court determine that the requisite affidavit was filed, the next issue presented is whether the trial court's revocation of probation order must be reversed where it includes seven violations and as the state acknowledges, evidence was only presented as to two of the violations. The state argues that where there was evidence presented as to two violations, these violations were sufficient to revoke Jean-Gilles's probation and thus, the only relief, if any, need be to remand the order to have it corrected to reflect the two violations. We decline to fully accept the state's position, instead determining that on remand the court should review its order and conform its findings to the evidence presented. Once the findings are conformed to the evidence presented, the trial court should then proceed to make a determination as to whether such findings support revoking Jean-Gilles's probation.
The reason we decline to accept the state's position is that the determination of whether a defendant has violated his probation is a question of fact to be determined by a trial court. See Lindsay v. State, 839 So. 2d 829, 829 (Fla. 4th DCA 2003). The factual findings are the basis for the trial court's determination on this issue. The state has the burden to prove by the greater weight of the evidence that the defendant violated his probation and such violation must be willful and substantial to trigger a revocation. Steiner v. State, 604 So. 2d 1265, 1267 (Fla. 4th DCA 1992).
Accordingly, should the trial court find an affidavit was timely filed, the trial court shall proceed to review its revocation order and make determinations in accordance with this opinion.
Reversed and Remanded.
WARNER and KLEIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920125/ | 369 A.2d 1389 (1976)
LAMOILLE GRAIN COMPANY, INC.
v.
ST. JOHNSBURY AND LAMOILLE COUNTY RAILROAD.
No. 294-75.
Supreme Court of Vermont.
December 21, 1976.
James C. Gallagher of Downs, Rachlin & Martin, St. Johnsbury, for plaintiff.
Sargent & White, Morrisville, for defendant.
Before BARNEY, C. J., DALEY, LARROW and BILLINGS, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.
BARNEY, Chief Justice.
A railroad car of the defendant went off the end of a siding track and knocked over *1390 several grain storage bins that the plaintiff grain company maintained there on land leased from the railroad. The grain had to be sold in bulk to salvage any value, and there was evidence of damage and loss to the extent of more than twelve thousand dollars.
The railroad claimed it was not liable because the "stops" belonging at the end of the siding had been removed, unbeknownst to the railroad, by third persons. It also claimed that the lease agreement contained an indemnity clause saving the railroad harmless from any liability for damage, injury or loss to the grain company or its personnel.
The lower court found in favor of the grain company and awarded damages. In so doing, it held that the indemnity clause could not excuse the railroad for liability due to damage to the grain company's property. The appeal is now here.
The basis of the lower court's holding was that, as a matter of law, "the indemnification agreement could not be applied where the negligence is that of the indemnitee." With this, we cannot agree.
Under the common law, public policy forbids a railroad from restricting its liability to the public, but this rule does not extend to the railroad's private undertakings. In private dealings the railroad has the right to grant or withhold the privilege to use or occupy its lands or premises on such terms and conditions as it deems appropriate. Boston & Maine R. R. v. Howard Hardware Co., 123 Vt. 203, 206, 186 A.2d 184 (1962).
In Osgood v. Central Vermont Ry., 77 Vt. 334, 60 A. 137 (1905), this Court has already upheld the propriety of a contract which contained an indemnity provision whereby the railroad was held harmless from all liability for loss, damage or injury resulting from the negligence of the defendant or in any other manner. We affirm this holding.
On determining that an indemnity clause protecting a railroad against its own negligence is not per se unconscionable, the question becomes one of whether the parties' agreements in this particular case provide such protection. Appellee argues that if a railroad may be excused from its own negligence, it may only be by virtue of "clear and unequivocal" language to that effect. He would have us hold that absent a specific reference to negligence, present in Osgood, the requirement of "clear and unequivocal" language is not met and the defendant may not be excused for its negligence.
We do not find that the failure of the contract to literally and specifically excuse the railroad for its own negligence precludes other verbiage from having that same effect. Instead, we treat this as we would other questions of contractual construction. Where the language of the agreement is clear, the intention and understanding of the parties must be taken to be that which their agreement declares. Stevens v. Cross Abbott Co., 129 Vt. 538, 283 A.2d 249 (1971).
The court below, in Finding of Fact No. 24, stated that "paragraph 4 of the lease agreement if literally interpreted would require the Plaintiff to indemnify the Defendant for Plaintiff's claim and to save the Defendant harmless from Plaintiff's claim. . . ." We agree that the language of this contract is sufficiently clear to show the parties' intent that the railroad be held harmless for damages caused by its own negligence.
The court below addressed the comparative bargaining positions of the parties and held that the plaintiff was in a subordinate position with respect to negotiations since the plaintiff's only alternatives were to remove the silos from their location on defendant's land, thereby losing the benefit or rail delivery of grain, or execute the lease. Furthermore, it held that the "evidence *1391 clearly indicates that the most economical way to receive grain shipments was by rail."
The fact that the parties may be in unequal bargaining positions is not enough alone to justify non-enforcement of a contract; practically every contract negotiation involves parties with some bargaining disparity.
Title 9A, Vermont Statutes Annotated, § 2-302, comment 1, explains the principle of the unconscionability provision as being "one of the prevention of oppression and unfair surprise . . . and not of disturbance of allocation of risks because of superior bargaining power." (emphasis added).
Oppression is noticeably lacking here. Far from being forced to accept the terms of the contract, plaintiff succeeded in altering the one aspect of the contract it attempted to alter, the monthly amount due under the lease. As to the rest of the contract, plaintiff signed without even reading it, in effect agreeing to the terms whatever they may be.
Dealing with the issue of unfair surprise, the court in Williams v. Walker-Thomas Furniture Co., 121 U.S.App.D.C. 315, 350 F.2d 445 (1965), phrased the question as follows:
Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print and minimized by deceptive sales practices? [350 F.2d at 449].
Given the business experience of the plaintiff, the comparative simplicity of the contract terms and the lack of deceptive sales practices, no unfair surprise is here evident.
Appellant contends that further evidence would have shown that the bargaining positions of the parties were not so uneven as to render the clause unconscionable. However, further evidence is unnecessary for us to make that decision. We hold recovery barred by the parties' contract.
Judgment reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920084/ | 447 N.W.2d 205 (1989)
R.S., an adult, Appellant,
v.
STATE of Minnesota, Hennepin County, Respondents.
No. C6-89-824.
Court of Appeals of Minnesota.
October 31, 1989.
Review Granted December 29, 1989.
*207 Dennis L. Smith, Dennis D. Daly, Jr., Roseville, Theodore J. Collins, Collins, Buckley, Sauntry & Haugh, St. Paul, for R.S.
Hubert H. Humphrey, III, Atty. Gen., Julie K. Harris, David P. Iverson, Asst. Attys. Gen., St. Paul, for State.
Thomas L. Johnson, Hennepin County Atty., Therese Galatowitsch, Asst. County Atty., Minneapolis, for Hennepin County.
Heard, considered and decided by WOZNIAK, C.J., and HUSPENI and RANDALL, JJ.
OPINION
RANDALL, Judge.
R.S. appeals from a summary judgment and Rule 12.02 dismissal of his declaratory judgment action wherein he requested the court interpret and determine the constitutionality of Minn.Stat. § 626.556 (Reporting of Maltreatment of Minors Act). The trial court concluded this case is not amenable to remedy by a declaratory judgment action. We affirm in part and reverse in part.
FACTS
On November 12, 1987, an employee of Hennepin County Community Child Protection Services (HCCPS) received an anonymous phone call regarding R.S.'s then seven-year-old daughter, R.M.S. The caller described certain behavior, but did not allege that R.M.S. had been a victim of sexual abuse, and neither alleged nor hinted that either of her parents might be involved if any abuse were to be found.
During the conversation, the caller mentioned that a therapist their family had talked to suggested calling to report R.M. S.'s behavior. The caller's child had been exhibiting somewhat strange and different behavior, and that led to the inference that R.M.S. was exhibiting similar behavior.
The information was forwarded to Terry Stark, an HCCPS supervisor. He reviewed the information on November 16 and sent the report on November 17 to Paula Leahy, a social worker, for further assessment. Stark did not immediately notify the Golden Valley Police Department (GVPD). Leahy made her assessment and orally notified the GVPD of the report on November 18. She sent a written report on November 19, which indicated that the identity of the perpetrator was "unknown." The *208 child's parents were not notified about the report or the investigation.
On December 1, Officer Smith of the GVPD called Noble Elementary School and advised the principal that he would be coming to school the next day with a representative from HCCPS to question a child. No written notice was given to school officials prior to the interview with R.M.S.
On December 2, R.M.S. was taken from her class by a teacher and presented to Leahy and Smith for questioning. Leahy testified that R.M.S. was told she was not in trouble, could leave whenever she wanted, and would be asked a few questions but was not required to answer them.
During the interview, Leahy questioned R.M.S. while showing her a picture of a naked girl, writing R.M.S.'s name below the words "my body," and circling the breast, crotch and buttocks areas and writing "vaginal" between the legs. They also discussed the concepts of "good touch" and "bad touch."
On December 3, Leahy sent a letter to R.S. and his wife informing them that HCCPS had received a report concerning their family and wanted to talk to them about it. The letter did not disclose that R.M.S. had been questioned, that HCCPS suspected sexual abuse, or which of R.S.'s two children were involved.
R.S. received the letter on December 5 and at that time learned from R.M.S. what had happened. When he was unable to reach Leahy by phone, R.S. called the GVPD and was contacted by Officer Smith later that night. Smith advised R.S. of the sequence of events and told him a report had already been filed, stating that R.M.S. had not been abused.
R.S. reached Leahy by phone on December 7. In that conversation, Leahy informed R.S. that it was her conclusion the report alleging possible sexual abuse of R.M.S. was not "validated."
On December 8, Leahy prepared a letter to Noble School and mailed it with the written notice. The written notice was required by statute to have been given to the school before R.M.S. was questioned. The teacher who removed R.M.S. from class signed the notice and backdated her signature to the date of the interview at the instruction of the school's principal.
The anonymous reporters contacted HCCPS subsequent to R.M.S.'s interview. They disclosed their identities as R.S.'s neighbors, and stated that their daughter was a friend of R.M.S. Even with the anonymous callers identifying themselves and giving the source of their observations, nothing was gleaned implicating R.M.S.'s parents. Ultimately, the report concerning R.M.S. was classified as "unable to substantiate."
R.S. commenced a declaratory judgment action. However, the trial court found no justiciable controversy for which R.S. has had standing. Notwithstanding those obstacles, the trial court analyzed the constitutional issue and determined that the statute does not violate either the United States or Minnesota Constitutions.
ISSUES
1. Did the trial court err in granting Hennepin County's motion to dismiss for failure to state a claim upon which relief can be granted after it considered matters outside the pleadings?
2. Did the trial court err in granting the State of Minnesota's summary judgment motion?
ANALYSIS
I.
Motion to Dismiss
R.S. argues the trial court erred in granting respondent Hennepin County's motion to dismiss for failure to state a claim upon which relief can be granted because the county presented matters outside the pleadings in its memorandum to the trial court.
We believe the court properly treated the motion as one for summary judgment pursuant to Minn.R.Civ.P. 12.02, and it should be reviewed under that standard.
*209 II.
Summary Judgment
In reviewing an appeal from summary judgment, this court must determine whether any genuine issues of fact exist and whether the trial court erred in applying the law. Betlach v. Wayzata Condominium, 281 N.W.2d 328 (Minn.1979). The evidence must be viewed in the light most favorable to the party against whom the motion was granted. Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn.1982).
R.S. claims he has presented a justiciable controversy for which he has standing. He contends his right of privacy has been denied by respondents' actions pursuant to Minn.Stat. § 626.556 and alleges he has been the victim of either an unconstitutional statute or of Hennepin County's failure to follow statutory procedures.
Justiciable Controversy
A justiciable controversy must exist before a court has jurisdiction to render a declaratory judgment regarding the constitutionality of a statute. St. Paul Area Chamber of Commerce v. Marzitelli, 258 N.W.2d 585, 587 (Minn.1977). The controversy must be justiciable in the sense that definite and concrete assertions of right are involved. Seiz v. Citizens Pure Ice Co., 207 Minn. 277, 281, 290 N.W. 802, 804 (1940). The litigant bringing the constitutional challenge must "be able to show that the statute is, or is about to be, applied to his disadvantage." St. Paul Area Chamber of Commerce, 258 N.W.2d at 588 (quoting State ex rel. Smith v. Haveland, 223 Minn. 89, 92, 25 N.W.2d 474, 477 (1946)). Furthermore, the party's direct interest in the validity of the statute must be different in character from the general public's interest. Arens v. Village of Rogers, 240 Minn. 386, 390, 61 N.W.2d 508, 512 (1953).
In the present case, R.S. has a legitimate dispute and assigns as error the following actions by Hennepin County:
1. the failure to give the school a statutorily required notice;
2. the deliberate backdating of the required notice and mailing appellant a copy of the notice which they knew to be false;
3. the maintenance of that falsely dated notice in its records;
4. the failure to have a proper county chair or his designee review each notice;
5. the practice of signing these statutorily required notices in blank;
6. the failure to obtain as much information as possible from reporters including the practice of failing to ask if the caller knows or suspects who the perpetrator is;
7. the failure to get specific information supporting an allegation of physical or sexual abuse amounting to criminal acts;
8. the failure to require in every case of questioning a child which takes place without parental consent or knowledge that there be some evidence or even reasonable suspicion that the parent is the alleged perpetrator;
9. the practice of accepting anonymous calls as reports and based solely thereon without making any attempt to assess the validity thereof conducting custodial questioning without parental knowledge or consent;
10. the practice of waiting nearly 3 weeks before contacting the parents of a child the county believed may have been sexually abused where the parents were not alleged to be the source of the abuse.
Respondents concede certain statutory procedures were not followed. Specifically, the school was not given the required notice, and the backdated notice was deliberately kept in the file and sent to R.S. Hennepin County also acknowledged that required notices have been signed in blank. We hold that R.S.'s bona fide legal interest in being free from state intrusion, except for a compelling state reason, was affected in a prejudicial manner. When Hennepin County removed R.S.'s seven-year-old daughter from her classroom and questioned her about intimate sexual details without parental knowledge or consent, R.S.'s constitutionally protected right of privacy may have been violated. See State *210 ex rel. Smith v. Haveland, 223 Minn. 89, 92, 25 N.W.2d 474, 477 (1946).
Case law supports the proposition that R.S. has the right to preserve the autonomy and privacy of his family. See Griswold v. Connecticut, 381 U.S. 479, 495, 85 S.Ct. 1678, 1687, 14 L.Ed.2d 510 (1965) (private realm of family life is one in which the state should not enter); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944) (custody, care and nurture of child resides first in parents); Bohn v. County of Dakota, 772 F.2d 1433, 1436 (8th Cir.1985) (tie between parent and child is among the most important protectible interests), cert. denied 475 U.S. 1014, 106 S.Ct. 1192, 89 L.Ed.2d 307 (1986). "The rights to conceive and to raise one's children have been deemed `essential,' `basic civil rights of man,' and `rights far more precious * * * than property rights.'" Id. at 1435 (citations omitted).
In asserting his right as the father of a family whose rights have been allegedly prejudiced by respondents' interpretation and enforcement of Minn.Stat. § 626.556, R.S. has demonstrated an interest that is different from that of the general public. Furthermore, the issues involved in this case are capable of repetition, yet may evade review. See In re D.M.C., 331 N.W.2d 236, 237 (Minn.1983).
Consequently, R.S. has presented a justiciable controversy.
Standing
Before the constitutionality of this statute can be challenged, R.S. must show an injury from the provision in question. Unless the rights of the party challenging the statute are affected, a litigant has no standing to invoke the court's jurisdiction. In re Schroeder, 415 N.W.2d 436, 441 (Minn.Ct.App.1987), pet. for rev. denied (Minn. Jan. 28, 1988).
The United States Supreme Court has held that parents have a constitutionally protected liberty interest in their children. Parents' rights to the companionship, care, custody and management of their children is a constitutionally protected interest that "`undeniably warrants deference and absent a powerful countervailing interest, [warrants] protection.'" Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)).
Although R.S. refuses to bring in his daughter as a party plaintiff, he has standing to bring this action in his own name as a parent. R.S. is alleging violations of his constitutional rights and privileges.
Balancing of Interests
We disagree with the trial court's finding that the countervailing interest in protecting the health and welfare of abused children outweighs R.S.'s liberty and privacy interests.
The preamble to Minn.Stat. § 626.556 declares the state's policy of protecting both children and the family unit and provides in pertinent part:
The legislature hereby declares that the public policy of this state is to protect children whose health or welfare may be jeopardized through physical abuse, neglect or sexual abuse; to strengthen the family and make the home, school, and community safe for children by promoting responsible child care in all settings; * * *
Minn.Stat. § 626.556, subd. 1 (emphasis added).
Minn.Stat. § 626.556, subd. 10 describes the duties of the local welfare and law enforcement agencies upon receipt of a report alleging abuse. The portions relevant to this opinion read as follows:
(a) If the report alleges neglect, physical abuse, or sexual abuse by a parent, guardian, or individual functioning within the family as a person responsible for the child's care, the local welfare agency shall immediately conduct an assessment.
* * * * * *
(c) Authority of the local welfare agency responsible for assessing the child abuse report * * * includes, but is not limited to, authority to interview without parental consent, the alleged victim and *211 any other minors who currently reside with or who have resided with the alleged perpetrator.
Minn.Stat. § 626.556, subd. 10 (emphasis added).
In the present case, the anonymous call which precipitated the investigation contained not a hint or inference, much less articulable suspicion or probable cause, that the possible alleged victim, R.M.S., lived or had lived with an alleged perpetrator. Respondents only argument to R.S.'s position that respondents abused both the spirit and the letter of the statute is a claim that since parents are within the "statistical pool" of "possible" perpetrators whenever a child is the victim of abuse, that this "possibility" alone justifies their private interrogation of a child without first notifying the parents.
Respondents insist an investigation would be weakened if parents are contacted prior to the first interview with a child and are themselves involved in abuse. That may be, but respondents beg the question, namely, who says the parents "are themselves involved in abuse." The statute appears to set forth a clear and sensible test. If the alleged victim and any other minors currently or formerly resided with an alleged perpetrator (which could include parents, step parents, foster parents, guardians, live-in relatives, et cetera), then a local welfare agency can exercise discretion to interview the children without first notifying the parents.
The key words are "alleged perpetrator." That phrase makes a clear distinction. If a specific person is named as a possible source, and presently or formerly resided with the child, then it makes sense to consider interviewing the child without bringing the fact of the interview to that person's knowledge. However, here we do not have an alleged perpetrator, in fact, nothing remotely connected to anyone by name. The contents of the anonymous call here were merely that the caller had observed R.M.S. doing certain things and acting in such a way that the anonymous caller wanted to mention it to somebody. The word "abuse" was not even mentioned, yet the county proceeded as if there was a possibility of child abuse and a possibility that R.S.'s parents might be involved.
The bright line threshold of the statute, authorizing an interview of the child without prior parental notification if a past or present resident of the household is the alleged or possible perpetrator, is fair to both parent and child and provides the most protection for the child. Respondents have to concede that when there is a possibility of child abuse, in addition to the parents, many other groupings exist as a source. For instance, neighbors, neighbor's children, playground or school ground companions, paper carriers, home delivery personnel, service personnel, school teachers, Brownies or Scout personnel, babysitters, et cetera, are at least statistical possibilities, yet, what authority is there to smear by implication any of the numerous people in these groups unless there are at least some articulable facts supporting an allegation.
We do not find the balancing test tips anywhere near so heavily in respondents' favor as they claim. As pointed out, although parents are within the statistical pool of abusers, so are other people. As to every one of these possible abusers, except the parents themselves, notifying the parents promptly and before beginning the investigation, and before requesting an initial interview with the child, gives those in the best position, namely the parents, an immediate opportunity to keep an eye on their child in all the examples enumerated above. Absent some specific reason not to tell the parents, parents should be involved in the decision-making process.
The knowledge that from time to time an anonymous phone call may lead to a situation where the parents are the abusers, and where contacting the parents before an in-school interview may tip off the parents and perhaps slow the investigation, is not an all-persuasive reason as it depends on two very subjective "ifs." This position, urged by respondents, is akin to an argument that it is all right to tarnish nine innocent sets of parents on the chance that one guilty one might be uncovered if the *212 welfare agency and the school can interrogate the child without first contacting the parents, based only on the interrogator's speculation. Respondents' position cannot be distinguished from the proposition, odious as it seems, that all parents, without more, are suspected abusers of their children until they prove themselves innocent.[1]
There is a certain hysteria which has arisen in roughly the last decade concerning child abuse. Although serious, when ranked with homicide, aggravated assaults, armed robbery, burglaries, drug dealing, and other felonies, abuse does not occupy a special or sacrosanct position which puts it apart from the normal rules and codes of conduct, including the Bill of Rights. Yet, no other crimes seem shrouded with the mystique of child abuse. All normal concerns for persons' rights get overridden when someone says, "but we're protecting little children." No matter how heinous the crime, it is antithetical to our judicial system that the innocent can be punished lest an occasional guilty one escape.
In other words, the question before us can be reduced to, "what controls are there on the power of the state to interrogate young children about their parents without first notifying the parents?" The statute appears to authorize this serious measure only when the child lives, or has lived, with someone alleged to be the abuser. We find the statute contains the proper balancing test between the rights of the parents to control and enjoy a harmonious family unit alongside the child's right to be free from abusers. It is safer for all concerned that the statute be looked at for the balancing test rather than the subjective judgment of those responsible only for investigation, not the preservation of the family.
We find that appellant has standing and has presented the courts with a justiciable controversy. Absent an allegation that the parents are or may be involved in abuse, we hold parents must be contacted prior to the first interview with the child. Subdivision 10(c) authorizes an interview without parental consent only when the victim currently resides with or has resided with the alleged perpetrator. See Minn.Stat. § 626.556. subd. 10(c).
Having concluded that R.S. is entitled to judgment in his favor on the issues of standing, justiciability and his claim that statutory procedures outlined by the Minnesota Reporting of Maltreatment of Minors Act were not followed, we now examine the prayer for relief and find as follows:
First, we deny R.S.'s request to declare Minn.Stat. § 626.556 unconstitutional "to the extent it requires school interviews of children based solely on anonymous reports and with no intent to assess the validity of said report prior to a custodial interrogation of the child."
Second, we deny R.S.'s request, in the alternative, to require law enforcement and welfare agencies to conduct assessments of reports to determine at what point the interests of the parents become subservient to the interest of interviewing the child in private for fear of damaging the investigation. As our analysis shows, the controlling statute sets out the circumstances under which the interview can take place without parental knowledge, and if the statute is followed, the interests of the parents and child are balanced.
In addition, we deny R.S.'s blanket request to declare that anonymous, uncorroborated calls to welfare or law enforcement agencies are not deemed to be reports under the statute. We decline to make such a broad rule. An anonymous, uncorroborated call "may" form the basis of a report. However, statutory procedures *213 must be followed before an agency arranges a private interview.
Finally, we grant R.S.'s request to order Hennepin County to follow the mandates of Minn.Stat. § 626.556. Our interpretation of the law as applied to the facts of this case leads to the conclusion that statutory procedures were not followed. Thus, overall, we find the statute constitutional and instruct the agencies named therein to follow the dictates of the legislature.
The state's notice of review raised the question of whether the school interview was a fourth amendment seizure. That issue is moot and we do not decide it at this point.
DECISION
Affirmed in part and reversed in part.
HUSPENI, Judge (concurring specially).
I agree with the majority that R.S. has standing to invoke the court's jurisdiction to address the issues he raises. I also join, albeit hesitatingly, in the majority's determination that R.S. has presented a justiciable controversy to the court.[1] Further, I concur in the majority's grant of R.S.'s request that Hennepin County be required to follow the mandates of Minn.Stat. § 626.556 (Supp.1987).
I respectfully disagree, however, with the majority's determination that subd. 10(c) of Minn.Stat. § 626.556 (Supp.1987) prohibits interviewing a child without parental consent except when the child currently resides with or has resided with the alleged perpetrator. I cannot read section 10(c) so narrowly.
Reports of possible abuse may be made either by those who are mandated to do so under the statute or by those who voluntarily do so.[2] While mandatory reporters are required, and voluntary reporters may be willing, to report instances of suspected child abuse based on the reporters' observations, those observations may furnish no information enabling reporters to identify, or even to speculate on the identity of, perpetrators. Reporters often see a child outside the home; although they are well qualified to perceive that abuse has occurred, they may be completely unqualified to name or to allege its perpetrator. However, abuse is no less real merely because its perpetrator cannot be identified.
Under the majority holding, both mandated and voluntary reporters will be put on notice that they must choose either to allege that a household member is the abuser or to have the parent notified before any professional contact with the child may occur. These two choices do not result from the best reading of the statute. Subdivision 10 of section 626.556 is entitled "Duties of local welfare agency and local law enforcement agency upon receipt of a report." Paragraph (c) in part reads:
Authority of the local welfare agency responsible for assessing the child abuse report and of the local law enforcement agency for investigating the alleged abuse includes, but is not limited to, authority to interview, without parental consent, the alleged victim and any other minors who currently reside with or who have resided with the alleged perpetrator.
(Emphasis added.) The majority's interpretation of this section requires that the underlined portion apply to the alleged victim as well as to "any other minors." However, it is unlikely that the legislature would have dictated the same procedure for alleged victims of child abuse and for children not alleged to be victims. The "who currently reside with" clause most *214 reasonably applies only to "any other minors," not to "the alleged victim."
Other portions of paragraph (c) support this reading:
The interview may take place at school * * * and may take place outside the presence of the perpetrator or parent, legal custodian, guardian, or school official * * *. [T]he parent, legal custodian, or guardian shall be notified by the responsible local welfare or law enforcement agency no later than the conclusion of the investigation or assessment that this interview has occurred.
Five categories of individuals are identified in 10(c): perpetrators, parents, legal custodians, guardians and school officials. The notification provision of 10(c) is not limited to parents, legal custodians or guardians who are alleged perpetrators.
The public policy purpose of section 626.556 is
to protect children * * * to strengthen the family and make the home, school and community safe for children * * * to require the reporting of neglect, physical or sexual abuse of children * * * to provide for the voluntary reporting of abuse or neglect of children; to require the assessment and investigation of the reports; and to provide protective and counseling services in appropriate cases.
Minn.Stat. § 626.556, subd. 1 (1986).
Inherent in such a multi-purpose public policy is the necessity for balancing two very important rights: the right of a child to be free from abuse and the right of a parent to liberty and privacy in the conduct of family affairs and responsibilities. In balancing these rights it is imperative that we consider what the child and what the parent have at stake. The potential for present and future harm to the victim of child abuse is literally incalculable; the harm accruing to the liberty and privacy of a parent from one professional and benevolent interview of that child is minimal in comparison. The interview is not intended as a vehicle to encourage a child to inform on his or her parent. The child certainly is not told that the interview must be kept secret from the parent. Nor can I agree with the majority's implication that such an interview will "smear or tarnish" the parents, or that "innocent" parents are punished by having their children interviewed.[3]
Ultimately, the balancing of the two abstract concepts of freedom from abuse and family privacy cannot be performed in the vacuum that results from ignoring statistical evidence. The pool of adults with the opportunity to abuse a child is usually a rather small one. Tragically, parents are more likely than any other group to be the abusers of their children. Parents are not merely "members of a statistical pool."
The majority concluded its balancing analysis by finding within the language of section 626.556 itself a resolution in favor of the family's right to privacy. I find in the statutory language a mandate to certain professionals to report, a responsibility of professionals to assess and investigate, and the discretion of professionals to conduct interviews under appropriate conditions without parental notification. Certainly this discretion must be exercised sensitively and always with an awareness of the potentially conflicting interests involved. However, I must conclude that the safety of a child, the strength of a home, and the interest of a family to live in privacy will all ultimately be more fully advanced by an interpretation of this statute which permits recognition of the uniqueness *215 of individual children, individual parents and individual cases.
NOTES
[1] At oral argument, respondents conceded there was not even the slightest indication that one of R.M.S.'s parents was involved. Their only rejoinder was the weak quote that we didn't have any evidence they weren't involved.
We express a special concern for the actions of the civil servants and educators involved, including, but without limitation, the deliberate backdating of official reports, and the practice at the time of signing statutorily required notices in blank. The performance of mandated duties can be accomplished without resorting to such tactics. In the long run, "ends justifies means" ultimately leads to proper ends not being obtained, as the improper means subvert the process.
[1] It appears, however, that a more appropriate action would be available to R.S. pursuant to 42 U.S.C. § 1983 (1986). His argument that the Eighth Circuit holdings in Doe v. Hennepin County, 858 F.2d 1325 (8th Cir.1988); and Myers v. Morris, 810 F.2d 1437 (8th Cir.1987), cert. denied 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987) preclude a section 1983 action by him is, I believe, misplaced. In both Doe and Myers the facts of those cases prevented recovery. The availability of a 1983 action was not attacked.
[2] I agree with the majority's refusal to consider a voluntary report as categorically inferior to a mandated one.
[3] My interpretation of section 10(c) which would permit interviewing a child without parental notification even where a household member is not the alleged perpetrator of abuse should not be taken as an unqualified endorsement of the county's practices under the facts of this case, however. Although the county's noncompliance with the requirements of section (d) for notification of school officials may be termed "technical," (there is no indication in the statute of any discretion of school authorities to refuse) it was noncompliance nonetheless. The county concedes that it did not notify the appropriate police authorities within 24 hours as required by section 3(b). Although no statutory provision specifically requires prompt investigation, I am concerned that 20 days elapsed between the report here and the interview at school. Certainly, if abuse was occurring, no matter who the perpetrator, that abuse could have continued unchecked during the delay. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920089/ | 447 N.W.2d 922 (1989)
The PEOPLE of the State of South Dakota in the Interest of R.R., a Child, and Concerning O.R. and K.R., Respondents.
No. 16478.
Supreme Court of South Dakota.
Considered on Briefs September 11, 1989.
Decided November 8, 1989.
*923 Diane Best, Asst. Atty. Gen., and on brief, Roger A. Tellinghuisen, Atty. Gen., Pierre, for plaintiff and appellee.
Mary T. Wynne of Wynne & Holm, P.C., and on brief, Ted Lautenschlager of Wynne & Holm, P.C., Rapid City, for defendant and appellant.
MORGAN, Justice.
R.R., a seventeen-year-old minor female, appeals from an order adjudging her delinquent as defined by SDCL 26-8-7. The delinquency petition was based upon an underlying criminal theft by deception charge. SDCL 22-30A-3. Additionally, R.R. appeals from a dispositional order that sentenced her to serve five days in the Pennington County Jail and to pay a fine of $50.00, the execution of the fine being suspended on certain conditions. We affirm.
On May 24, 1988, Brad Booth (Booth) was employed by Sears as a private security guard at its Rapid City, South Dakota, store. Booth was also employed as a police officer with the Rapid City Police Department (Department). His employment at Sears had no connection with the Department. While employed by Sears, Booth did not coordinate his security guard actions with Department. In his employment as a private security guard, Booth was unarmed and wore a tee-shirt and blue jeans or gym shorts.
While monitoring Sears' security cameras on May 24, 1988, Booth saw R.R. walk "back and forth several times along a back wall in the store." R.R. was accompanied by an adult friend, Gloria Crowe (Crowe). Booth watched the two women through the cameras for about ten minutes.
Then, R.R. went into the jeans section of the store and left the view of the camera for about thirty seconds. After she reappeared on the monitor, R.R. studied a section of jeans and then bent down out of sight of the camera for about twenty seconds. Until then, the jacket that R.R. was wearing was open. However, when she reappeared in the camera's sight, the bottom two buttons of her jacket were buttoned. Although R.R. was pregnant, Booth could see that R.R. looked "fatter on the side of her jean jacket." Booth also saw clothing stuck inside R.R.'s jean jacket.
Accordingly, Booth left the monitor viewing area and went out into the store to locate R.R. Although he could not immediately find her, he did see her walking out the door of the Sears store about fifteen or twenty minutes later. Booth followed R.R. and Crowe into the parking lot and caught up with both women at their car. Booth identified himself to both women as Sears security, not as a police officer. Although R.R. denied knowing anything about the jeans, Booth picked up two tags that had come off jeans and were lying in the parking lot beside the car. He also searched the car after receiving consent to do so.
Following this five-minute conversation outside the Sears store, Booth asked both women to come inside the store. He talked to them in the hallway for about three or four minutes. While standing in the hallway, Booth talked to another Sears security person and found out that R.R. had returned the jeans and received cash. This security officer was also unarmed and was casually dressed.
Based upon the information Booth obtained, he asked R.R. and Crowe to accompany him to the store's security office. Both women followed Booth to the security office, along with the other security officer, and a Sears cashier. Once in the security office, Booth placed R.R. under citizen's arrest and phoned Department on the routine police line and requested an officer *924 be sent, as required by SDCL 23A-4-1.[*] The subsequent interrogation, lasting only twenty minutes, took place in the security office. Booth used interrogation tactics he learned as a police officer, including falsely claiming that a customer had seen R.R. shoplifting. Booth did not read R.R. her Miranda rights at any time. R.R. confessed after fifteen or twenty minutes, admitting to putting the jeans in her jacket, taking them outside, and then returning them for a cash refund. Shortly after the confession, a police officer from Department arrived and received the prisoner. Because R.R. was a juvenile at the time she was arrested, she was charged with theft by deception within the context of a juvenile proceeding.
At R.R.'s adjudicatory hearing, R.R.'s counsel moved to suppress the confession given to Booth on the grounds that it was obtained in violation of R.R.'s privilege against self-incrimination and her right to counsel under the 5th, 6th, and 14th Amendments to the United States Constitution and under Article VI, §§ 7 and 9 of the South Dakota Constitution. The trial court found that Booth was acting as a private agent and was not required to give R.R. Miranda warnings. Further, the trial court found that R.R. was under no compulsion to answer, there was no force or coercion used, and that her statement was given freely, voluntarily and intelligently. The trial court denied the motion to suppress and found R.R. guilty of petty theft in the second degree. SDCL 22-30A-17. At trial, R.R.'s counsel did not raise the issue of whether Booth improperly arrested R.R. pursuant to South Dakota's citizen's arrest authority. Subsequently, R.R. was adjudicated a delinquent as a result of the trial court's finding that she committed the crime of theft by deception.
R.R. raises four issues that may be condensed into two issues:
(1) Whether a confession obtained by an off-duty police officer/private security guard, during a citizen's arrest, was properly admitted as evidence when the suspect was not advised of her constitutional rights to counsel and against self-incrimination.
(2) Whether the citizen's arrest made by an off-duty police officer/private security guard was unlawful and evidence and admissions obtained during the arrest were properly introduced into evidence.
First we note our standard of review. Initially, the State has the burden of proving beyond a reasonable doubt that a confession or incriminating statement is freely and voluntarily made. State v. Dubois, 286 N.W.2d 801 (S.D.1979); State v. Thundershield, 83 S.D. 414, 160 N.W.2d 408 (1968). Upon appeal, this court considers the issue "in the light most favorable to support the trial court's decision." Dubois, 286 N.W.2d at 804. In considering whether the trial court erred, the trial court's finding of whether a statement was voluntarily given is binding on this court unless the trial court's finding is clearly erroneous. Id.
We turn to R.R.'s first issue. R.R. claims that Booth's use of his police training to conduct surveillance, search, arrest, and interrogation of her transformed his actions from being a private security guard to one of acting as an agent or instrumentality of the state; therefore, he should have been required to give Miranda warnings. The State counters that Booth was acting as a private security guard at all times and that the constitutional protections of Miranda only apply to actions by the government and its officials and agents, not to the acts of private individuals.
In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966), the United States Supreme Court held that criminal defendants must be apprised of their rights to an attorney and against self-incrimination when questioning has been initiated by law enforcement officers and the person has been taken into custody or otherwise deprived of his *925 freedom of action in any significant way. Concomitantly, statements made to private individuals need not be preceded by Miranda warnings. State v. Bruske, 288 N.W.2d 319 (S.D.1980) (social worker not required to give Miranda warnings when questioning client about welfare fraud); State v. Johnson, 87 S.D. 43, 202 N.W.2d 132 (1972) (Miranda warnings not required of parole officer, because he is not acting as police agent).
While never ruling on whether an off-duty police officer/security guard must give suspects Miranda warnings, this court has dealt with the collateral issue of whether police officers are so steeped in governmental business that they lack the capacity to act as private citizens. In State v. MacDonald, 260 N.W.2d 626 (S.D.1977), this court ruled that a police officer, not engaged in pursuit of a suspect, may arrest offenders outside the territorial jurisdiction of his city so long as he acts as a private citizen pursuant to South Dakota's citizen's arrest authority. Contrary to R.R.'s contention, it is possible for a police officer to use police training as a private citizen and still remain a private citizen.
Rather than look to police training as the litmus test of state action, courts which have dealt with the private security guard issue have looked to whether the private individual acted in concert with or at the request of police authority. A brief review of some of these decisions is useful in determining whether Booth was required to give warnings. We start with the decisions requiring warnings.
In People v. Elliott, 131 Misc.2d 611, 501 N.Y.S.2d 265 (1986), a retired member of the New York City Police Department working as a private security guard for a hospital was dispatched to the parking lot after the report of a handgun in a car. The police had been notified before the guard was dispatched, and the guard was informed they were on their way. When he reached the car, he saw the gun and radioed this information back to his dispatcher, who in turn forwarded the information to the police. The suspect arrived shortly after this and was questioned by the guard without Miranda warnings. The suspect admitted the gun was his and voluntarily gave it to the guard. Subsequently, the police arrived, questioned the suspect and arrested him. The New York Court held that Miranda warnings should have been given because there was "coordinate private-public law enforcement involving the investigation of a crime incident. The parking lot investigation and response here, by the hospital security officer, did accommodate police objectives." Id. 501 N.Y.S.2d at 270.
The Alaska Supreme Court also required Miranda warnings in a case involving private security personnel in Tarnef v. State, 512 P.2d 923 (Alaska 1973). Though Tarnef did not involve an off-duty police officer, the facts are useful to demonstrate what a private citizen must do in order to transform his actions into those of a state agent. In Tarnef, a private arson investigator had agreed to turn over any statements made by the suspect to the police, had enlisted the aid of the police to gain access to an incarcerated suspect, and, after obtaining a confession, had used the police to drive himself and the suspect to different locations to confirm the confession.
Both Elliott and Tarnef are distinguishable from the case before us. Unlike the factual background in Elliott, supra, Booth initiated the investigation of R.R. as part of his job as a private security guard for Sears, not at the behest of Department. Department was not already responding to the incident when Booth began his investigation; rather, Department did not become involved until Booth called and requested that a police officer be sent, as required by SDCL 23A-4-1.
Unlike the factual background in Tarnef, supra, there were no pre-arrangments between Booth and Department to turn over information on R.R. to Department and Booth did not receive any special favors or extraordinary assistance from Department in the course of the investigation. In fact, Department was totally unaware of any investigation of R.R. until after her arrest.
*926 Unlike Elliott and Tarnef, there was neither coordination of public and private investigations nor complicity between security personnel and law enforcement.
A brief review of the cases not requiring Miranda warnings by a private security guard is also beneficial in that they echo many of the facts before us. In People v. Chastain, 733 P.2d 1206 (Colo.1987), the Colorado Supreme Court held that statements made to private security guard who was a past law enforcement official and was personally associated with the Colorado Springs Police Department was not a police agent because he was not paid by a public agency or acting under the direction of a police department. Similarly, Booth was employed by Sears for his work as a security guard. At no time were his actions directed or controlled by Department.
In State v. Bolan, 27 Ohio St.2d 15, 271 N.E.2d 839 (1971), the Ohio Supreme Court ruled that where a security guard detained a suspected shoplifter and obtained a confession, no Miranda warnings were required. There, as here, the defendant argued that an Ohio statute allowing merchants to temporarily detain shoplifters (similar to SDCL 22-30A-19), gave the merchant's employee the authority to act as state agents. The court held that the statute did not place a security guard within the category of "law enforcement officer." Id., 271 N.E.2d at 842.
Finally, the Michigan Supreme Court in City of Grand Rapids v. Impens, 414 Mich. 667, 327 N.W.2d 278 (1982), addressed this issue in the context of statements given to an off-duty sheriff from another county who was working as a private security guard. There, as here, the defendant argued that the character of the security guard's actions were what made him a government agent. The court disagreed and stated:
Their role may be reviewed as an extension of the common law shopkeeper privilege to detain for a reasonable period of time a person suspected of theft or failure to pay. There was no complicity with the Police Department or any indication that their acts were instituted or motivated by the police. Id., 327 N.W.2d at 281.
We agree with the majority of state supreme courts who have dealt with this issue and found that absent coordinate action or complicity between private security guards and the police, Miranda warnings need not be given to a suspect. We do not believe the trial court was clearly erroneous in finding that Booth was a private citizen who was not required to give Miranda warnings.
With this threshold question answered, we next decide whether the confession was voluntary. R.R. argues that her confession was involuntary because Booth questioned her in a closed room, did not tell her she could leave, and used police interrogation tactics, including falsely claiming that another customer had seen her shoplift. The State argues that there is no showing that R.R.'s will was overborne.
A conviction which is based in whole or in part on an involuntary confession violates the defendant's rights to due process. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). If a confession is involuntarily obtained, a defendant's due process rights are violated whether the statement is taken by a private security guard or the police. People v. Haydel, 12 Cal.3d 190, 115 Cal.Rptr. 394, 524 P.2d 866 (1974); Peak v. State, 342 So.2d 98 (Fla.App.1977).
The thrust of R.R.'s argument is that because she was questioned by a security guard who was using police interrogation tactics in a closed room, her will was automatically overborne. Addressing almost identical concerns, the California Supreme Court in In re Deborah C., 30 Cal.3d 125, 177 Cal.Rptr. 852, 635 P.2d 446 (1981), distinguished police interrogation from private security interrogation.
We think that routine detention and questioning by plainclothes store detectives presents a substantially different situation. Unless they represented themselves as police they did not enjoy the psychological advantage of official *927 authority, a major tool of coercion.... Thus, though detentions by store personnel may at times seem frightening, the `compelling atmosphere' that Miranda deemed inherent in a custodial interrogation by police and other government personnel appears diminished. Id., 177 Cal.Rptr. at 855-56, 635 P.2d at 449-50.
Likewise, we do not believe Booth's police training, absent the psychological trappings of police authority, created a "compelling atmosphere." Booth was unarmed, wore casual clothing, and always identified himself as Sears security, never as a police officer. R.R. did not offer any testimony that she felt frightened or coerced. No threats were made to R.R. She confessed in a very short period of time: fifteen or twenty minutes. Her confession corroborated most of the information Sears security people had discovered. Under these facts, we do not find that the trial court was clearly erroneous in finding the confession voluntary.
Next, we address R.R.'s arguments that Booth was not licensed to be a private security guard pursuant to Rapid City requirements, that his citizen's arrest was unlawful and the evidence and admissions obtained during the arrest were improperly introduced into evidence. At trial, R.R. failed to object to a statutory restriction that misdemeanor crimes must occur in the citizen's presence before he may make a citizen's arrest. SDCL 23A-3-3. Additionally, she failed to object to a local security guard licensing requirement.
SDCL 23A-32-9 makes it clear that the trial court must have been afforded an opportunity to rule on a point of law by proper motion or objection before we will entertain an argument based on the court's failure to rule. State v. Sheridan, 383 N.W.2d 865 (S.D.1986). R.R.'s failure to raise the licensing requirement as well as the legality of the arrest so the trial court could make a ruling, waived these issues for appeal.
Moreover, R.R.'s issues do not qualify as the type of exceptional issues that this court has granted independent review of under the plain error rule. SDCL 23A-44-15. The plain error rule applies only in exceptional cases and then it must be applied cautiously; the rule does not encompass every error that occurs at trial, but only those errors which are both obvious and substantial. State v. Dornbusch, 384 N.W.2d 682 (S.D.1986). We cannot say that violation of these statutory restrictions rises to the level of plain error.
Affirmed.
WUEST, C.J., and HENDERSON, J., concur.
SABERS and MILLER, JJ., concur in result.
SABERS, Justice (concurring in result).
I concur in the result because: "Private conduct ... may become so pervaded by governmental involvement that it loses its character as such and invokes the full panoply of constitutional protections." People v. Ray, 65 N.Y.2d 282, 286, 491 N.Y.S.2d 283, 285, 480 N.E.2d 1065, 1067 (1985). Such was the situation in this case.
Booth observed defendant shoplifting the blue jeans. He made a citizens' arrest and placed her in custody until an on-duty police officer arrived. Up to that point, Booth was an off-duty police officer properly acting as a Sears security guard. However, after phoning the police department, Booth put on his "On-duty police officer's hat" and began to interrogate the defendant without advising her of her Miranda rights. At that point, Booth's private conduct as a security guard was transformed into state action. He not only acted "in concert with the police," he was the police. Under the facts of this case, the connection between police and private behavior was so strong that it cannot fairly be said there was no state involvement. See Ray, supra, 491 N.Y.S.2d at 285, 480 N.E.2d at 1067; People v. Elliott, 131 Misc.2d 611, 616, 501 N.Y.S.2d 265, 269 (1986). Accordingly, this case is controlled by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See also In re Deborah *928 C., 30 Cal.3d 125, 140, 177 Cal.Rptr. 852, 860, 635 P.2d 446, 454 (1981) (Bird, C.J., concurring).
Defendant's statements were obtained from her in violation of her constitutional rights and they should have been suppressed. Miranda, supra; see also my writing in State v. Meek, 444 N.W.2d 48, 52 (S.D.1989). However, since Booth provided sufficient eyewitness testimony to sustain the conviction, the error is not reversible.
I am authorized to state that MILLER, J., joins in this special writing.
NOTES
[*] SDCL 23A-4-1 provides, in pertinent part: "... Any other person making an arrest shall, without unnecessary delay, take the arrested person before the nearest available committing magistrate or deliver him to the nearest available law enforcement officer ..." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920090/ | 416 Pa. Superior Ct. 37 (1992)
610 A.2d 495
Dennis RUZICKI, Appellant,
v.
CATHOLIC CEMETERIES ASSOCIATION OF the DIOCESE OF PITTSBURGH.
Superior Court of Pennsylvania.
Argued April 9, 1992.
Filed July 16, 1992.
*39 Monica M. Lovre, Pittsburgh, for appellant.
Charles R. Volk, Pittsburgh, for appellee.
Before CAVANAUGH, HUDOCK and MONTGOMERY, JJ.
CAVANAUGH, Judge.
This case arises out of appellant Dennis Ruzicki's termination by the appellee, Catholic Cemeteries Association of the Diocese of Pittsburgh. Appellant claims that provisions in an employee handbook modified his status as an at-will employee, despite a disclaimer in the handbook which stated that the handbook was not intended to give rise to any contractual obligations or to establish an exception to the employment at-will doctrine. Appellant wishes us to find that an implied contract was violated when the appellee terminated his employment and did not follow the handbook's progressive discipline provisions. We find that summary judgement was appropriately granted, and affirm.
Appellant was employed by the appellee from 1977 until 1990, in various capacities including laborer, assistant manager, purchaser and clerk. In March, 1990, the appellee terminated his employ, allegedly because the appellant did not have the interpersonal skills to successfully interact with the persons he supervised. Subsequently, the appellant filed suit asserting breach of contract/wrongful termination, equitable estoppel, and emotional distress.
Both sides agree that the appellee issued an employee handbook to certain of its non-union employees, although they dispute whether managers like the appellant were among those who received a handbook. The handbook stated that the appellee believed in "the principle of progressive discipline," and that certain enumerated offenses would normally subject the employee to discipline "in the from of written warning(s), 3 day suspension, 2 week suspension and discharge...." The handbook contained a separate list of offenses for which an employee could be *40 fired without resort to the progressive discipline system. The handbook also declares in a section entitled "Purpose" as follows:
This handbook is designed to be used as an informational guide to certain employment policies of the Catholic Cemeteries Association. It is not intended to give rise to any contractual obligations or to establish an exception to the employment-at-will doctrine.
Although the appellant was informed that his job performance was considered unsatisfactory and his job was "on the line," the progressive discipline provisions (which required written warnings) were not followed when he was terminated.
Following discovery, the appellee moved for summary judgment alleging, inter alia, that no employment contract, express or implied, existed and that the appellant was an at-will employee under Pennsylvania law subject to dismissal for any reason. The lower court agreed and granted the appellee's motion, declaring that the appellant's reliance on the handbook was misplaced given the clear language of the above disclaimer.
On appeal, the appellant raises two issues: (1) did the lower court err in granting summary judgment where it was a question for the jury whether appellant's status as terminable at-will was procedurally modified by appellee given the totality of the circumstances and (2) whether the lower court erred in not finding that the appellee should be equitably estopped from terminating the appellant without following the procedural requirements of the employee handbook.[1]
*41 Our standard of review for orders granting summary judgment is as follows:
Summary judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law.... It is basic that summary judgment may be entered only in a case that is clear and free from doubt.
Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 44-5, 489 A.2d 828, 831 (1985), quoted in Scott v. Extracorporeal, Inc., 376 Pa.Super. 90, 94, 545 A.2d 334, 336 (1988) (citations omitted). We address the appellant's arguments in the order presented.
The appellant's first argument is that it is a jury question whether appellant's status as a terminable at-will employee was procedurally modified by the appellee given the totality of the circumstances. The tenor of appellant's argument is that the progressive discipline provisions in appellee's handbook (1) applied to the appellant and (2) was part of a legally enforceable implied contract.
We find no merit to appellant's argument. Pennsylvania adheres to the employment at-will presumption, which holds that absent a contract to the contrary, an employee may be discharged for any or no reason. Scott, supra, 376 Pa.Superior Ct. at 94-5, 545 A.2d at 336; Darlington v. General Electric, 350 Pa.Super. 183, 188, 504 A.2d 306, 309 (1986). We have recently held:
The sine qua non of the presumption is that except in rare instances, discharges will not be reviewed in the judicial forum. The presumption may be overcome by express contract, implied in-fact contract (the parties did not intend it to be at-will), and additional consideration passing from the employee to the employer (that is, if the *42 employee bestows a legally sufficient detriment for the benefit of the employer beyond the services for which he was hired, a court may infer that the parties intend to overcome the at-will presumption). An employer has no right to discharge even an at-will employee if the firing would contravene a clear public policy or if it is effected with specific intent to harm the employee ... Several recent decisions have noted that any further erosion of the at-will presumption in Pennsylvania should be effected by the legislature, not the courts.
Scott, supra, 376 Pa.Superior Ct. at 95, 545 A.2d at 336 (citations omitted). The appellant does not assert that he is covered by an express contract, that additional consideration passed from the appellant to the appellee, that public policy is violated by his termination, or that his employer specifically intended to harm him by dismissing him. He only asserts that the employee handbook creates an implied contract.[2]
"A handbook is enforceable against an employer if a reasonable person in the employee's position would interpret its provisions as evidencing the employer's intent to supplant the at-will rule." Scott, supra, 376 Pa.Superior Ct. at 97, 545 A.2d at 337; accord Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 222, 511 A.2d 830, 841-2 (1986). The handbook, moreover, must contain a clear indication that the employer intended to overcome the at-will presumption. Scott, supra, 376 Pa.Superior Ct. at 97, 545 A.2d at 338; Martin, supra, 354 Pa.Superior Ct. at 222, 511 A.2d at 841-842. We have held that it is for the court to interpret the handbook to discern whether it contains evidence of the employer's intention to be legally bound. Scott, supra, 376 Pa.Superior Ct. at 97, 545 A.2d at 337.
As noted supra, the handbook contains a section entitled "Purpose" which disclaims any intention on the appellee's part of the handbook modifying the at-will employment relationship. Given the explicit disclaimer stating *43 that the handbook does not effect an employee's at-will status, even assuming that the handbook applies to the appellant,[3] appellant faces an insurmountable burden in arguing that the handbook converts him from an at-will employee to one who can only be fired through the use of progressive discipline as articulated in the handbook. After reviewing appellant's arguments as to why the disclaimer should be discounted, we remain unconvinced that the handbook may be said to have modified the at-will relationship between the appellee and his employees.
The appellant attempts to dismiss the existence of the disclaimer in the booklet by arguing that prior handbooks did not contain them, and the existence of the disclaimer was not mentioned to the employees at the manager's meeting when the new handbooks were distributed. Thus, appellant feels we should reduce the significance of the disclaimer to the fine print in the contract of adhesion. He also argues that the existence of the disclaimer merely proves his point: the existence of a disclaimer would not be necessary if the handbook was not confusing enough to be considered an implied contract.
We find the appellant's attempt to downplay the disclaimer unpersuasive. The appellant cannot rely on the handbook as a source of his alleged rights, and yet select only those provisions which militate in favor of an implied contract. Our inquiry is to determine if the handbook would provide the employee with a reasonable belief that his employer intended to overcome the at-will presumption. We believe that the disclaimer indicates it is does not, and we refuse to let the appellant have his cake and eat it too by relying on one section of the handbook to establish his claim while ignoring another section which calls his claim severely into question.
We also reject as particularly unpersuasive appellant's argument that the presence of the disclaimer actually indicates *44 that the handbook was confusing. This argument sounds in desperation, because rather than prove his point, the disclaimer quite obviously is an unassailable indication that there can be no mistake on the employee's part as to the aspirational nature of the handbook.
The appellant's second and final argument is that the appellee should be equitably estopped from terminating him without following the procedural requirements in the employee handbook. The drift of appellant's argument is that the employee handbook gave the appellant a reasonable expectation that he would only be terminated pursuant to its provisions.
We find this argument totally without merit. Our supreme court in Paul v. Lankenau Hosp., 524 Pa. 90, 569 A.2d 346 (1990), rejected the notion that the strictures of the employment at-will doctrine could be evaded by couching the claim as falling under the doctrine of equitable estoppel. Id., 524 Pa. at 95, 569 A.2d at 348. The Court declared the following:
The doctrine of equitable estoppel is not an exception to the employment at-will doctrine. An employee may be discharged with or without cause, and our law does not prohibit firing an employee for relying on an employer's promise. In the absence of a legally cognizable cause of action, the trial court erred in submitting the issue to the jury.
Id., 524 Pa. at 95, 569 A.2d at 348-9. The import of the Court's reasoning was that allowing an employee to claim equitable estoppel where the law declares that no implied contract exists would simply undercut the rule that an action for wrongful discharge does not exist in an at-will employment relationship. Id. Thus, we find that the Court's ruling and reasoning disposes of appellant's second argument.
As we have found that both of appellant's arguments are without merit, we affirm.
Judgment affirmed.
NOTES
[1] Appellant's brief violates Pa.R.A.P. 2119, 42 Pa.C.S.A., by articulating a different question in its Statement of Questions Involved than it addresses in its Argument. In the Statement of Questions Involved, the appellant's second issue is as follows: did the lower court improperly grant summary judgement where federal and state law is unsettled in situations dealing with particular provisions of employment handbooks and the factual circumstances necessary for the handbook to modify an employee's at-will employment status. However, in the Argument, the appellant asks us to consider whether the lower court erred in failing to equitably estop the appellee from terminating the appellant given the protection afforded by the employee handbook. These issues are as different as day and night, and we consider the former issue waived as appellant has made no effort to argue his position in his appellate brief. See, e.g., Harvilla v. Delcamp, 521 Pa. 21, 24 n. 1, 555 A.2d. 763, 764 n. 1 (1989). We will, however, address the estoppel issue as appellant's brief has sufficiently raised and argued this issue.
[2] Although the appellant contends that the "totality of the circumstances" indicate that he has an implied contract with the appellee, he proffers no additional alleged representation by the appellee of such a relationship other than the employee handbook.
[3] The appellee asserts that the appellant, as a manager, was not covered by the employee handbook, which only covered non-union employees not employed as managers. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920095/ | 921 So.2d 43 (2006)
SUSAN FIXEL, INC., Appellant,
v.
ROSENTHAL & ROSENTHAL, INC., etc., Appellee.
No. 3D05-243.
District Court of Appeal of Florida, Third District.
February 1, 2006.
*45 Adorno & Yoss and Jan Douglas Atlas and Samantha Tesser Haimo and Jeffrey A. Backman (Fort Lauderdale), for appellant.
Alan K. Fertel and H. Eugene Lindsey and Catherine Shannon Christie and Milton M. Ferrell, Miami, for appellee.
Before GREEN, RAMIREZ, and ROTHENBERG, JJ.
ROTHENBERG, Judge.
Susan Fixel, Inc. (Fixel, Inc.) appeals various rulings by the trial court, including a directed verdict entered on its claims against Rosenthal & Rosenthal Inc. (R & R) for breach of fiduciary duty and negligent misrepresentation, and a summary judgment entered against its claim for fraud in the inducement. We affirm.
Fixel, Inc. was in the business of selling apparel. In 1997, it entered into an agreement with R & R, whereby R & R acted as Fixel, Inc.'s factor, purchasing its receivables based upon a credit-risk evaluation. In addition to being Fixel, Inc.'s factor, R & R was the factor for C & L Textiles Corp. (C & L). Fixel, Inc. and C & L also did business together, with C & L providing textiles for Fixel, Inc.'s designs. In October of 1998, Fixel, Inc. entered into a written manufacturing agreement with C & L, pursuant to which C & L became responsible for Fixel, Inc.'s production and shipping, and C & L cancelled an outstanding debt owed to it by Fixel, Inc. In deciding to enter into this agreement, there was testimony that Fixel, Inc. relied upon representations of R & R as to C & L's solid financial condition, which Fixel, Inc. alleges were false. The parties operated under the agreement for a time, and then on March 4, 1999, C & L notified Fixel, Inc. of its intent to terminate the agreement. The parties terminated the agreement on July 1, 1999, and several months later Fixel, Inc. ceased operations.
Subsequently, Fixel, Inc. sued R & R, C & L, and two of C & L's principals. In its Third Amended Complaint, Fixel, Inc. alleged claims against R & R for fraud in the inducement, negligent misrepresentation, fraudulent misrepresentation, and breach of fiduciary duty. The trial court dismissed these claims with prejudice, and Fixel, Inc. appealed to this court. On appeal, this court reversed, finding that Fixel, Inc.'s complaint adequately set forth the claims alleged, and reversed the trial court's dismissal. Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204 (Fla. 3d DCA 2003). On remand, Fixel, Inc. voluntarily dismissed its claim for fraudulent misrepresentation, and after the case proceeded to discovery, R & R moved for summary judgment on the remaining claims against it. The trial court entered summary judgment on the fraudulent inducement claim, but denied the motion for summary judgment on the breach of fiduciary duty and negligent misrepresentation claims. The court also granted Fixel, Inc.'s motion for leave to amend its complaint to add a claim for punitive damages. Prior to trial, Fixel, Inc. voluntarily dismissed its claims against C & L and its two principals. It filed a motion in limine requesting that the court prohibit R & R from eliciting any testimony regarding such dismissal, and the trial court denied the motion.
At trial, the trial court did not permit James Reto, CPA, Fixel, Inc.'s damages expert, or Norman Fixel, one of the principals *46 of Fixel, Inc., to testify regarding the damages Fixel, Inc. allegedly suffered. After the plaintiff rested, R & R moved for a directed verdict. The trial court granted the directed verdict as to punitive damages, finding that R & R's conduct did not rise to the level of outrageous conduct. The court also granted a directed verdict as to breach of fiduciary duty and negligent misrepresentation, holding that the evidence offered did not establish a viable damage claim.
We first address Fixel, Inc.'s claim that the trial court abused its discretion in excluding the testimony of Mr. Reto, Fixel, Inc.'s expert witness on damages. The trial court disallowed the testimony based upon a finding that Mr. Reto relied upon speculative information in formulating his conclusions, and that he used an incorrect date in determining the market value of the business.
Mr. Reto based his damages calculation on future revenue and cash flow projections that had been prepared by Norman Fixel. Mr. Reto never verified these projections nor prepared his own projections. These projections could not be independently supported as they assumed that Fixel, Inc. would receive $3 million from investors, though no such funding was ever given; Fixel, Inc. was a start-up company that had never turned a profit and its costs only increased over time; and no comparable companies existed to assist in the valuation process. Thus we agree that Mr. Reto's damage calculations were too speculative, and conclude that the trial court did not abuse its discretion in excluding his testimony. See Montage Group, Ltd. v. Athle-Tech Computer Sys., Inc., 889 So.2d 180, 195 (Fla. 2d DCA 2004)(concluding that a plaintiff's proof of claimed business damages were inadequate to support the jury's business damage award because it was "far too speculative and uncertain"); North Dade Cmty. Dev. Corp. v. Dinner's Place, Inc., 827 So.2d 352, 353 (Fla. 3d DCA 2002)(reversing an award of future profits when the only evidence supporting the award was a page of projected earnings in a business prospectus that was "little more than an unsupported wish list of what the lessee hoped would occur in the coming years"); Forest's Mens Shop v. Schmidt, 536 So.2d 334, 336-37 (Fla. 4th DCA 1988)(reversing a damages award against a plaintiff who had not realized a profit during the two years that he had been the sole owner of his business and whose losses increased as his sales increased, when the testimony in support of the damages award ignored this lack of profitability in the past, explaining that the testimony was too speculative to allow an award of lost future profits).
Fixel, Inc. asserts that we should not rely on the above authorities, as they relate to lost profit damages while Fixel, Inc. is seeking damages based upon the market value of its business at the time of its destruction. We disagree. It is as inappropriate to use purely speculative forecasts of future revenue to determine the market value of a business as it is to use such speculative forecasts in determining lost future profits. See Montage Group, Ltd., 889 So.2d at 199 (recognizing that the value of a business reflects its future profits).
We also conclude that the trial court did not abuse its discretion in excluding Mr. Reto's testimony, based upon a finding that Mr. Reto had relied upon an incorrect date when determining the market value of the business. Fixel, Inc. sought damages for the destruction of its business. "If a business is completely destroyed, the proper total measure of damages is the market value of the business on the date of the loss." Montage Group, Ltd., 889 So.2d at 193 (emphasis added) *47 (citing Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983)). In the instant case, the trial court properly found that the date of Fixel, Inc.'s alleged loss was the date that it ceased operations, which was in late 1999, not on October 11, 1998, the date relied upon by Mr. Reto. As the expert's opinion valuing the company was based upon an incorrect date of loss, it was not relevant; it would not have assisted the jury when assessing any possible damages; and it would only have confused the jury in making that determination.
Fixel, Inc. however, asserts that despite the deficiencies in Mr. Reto's testimony, he should not have been precluded from testifying, as these deficiencies went to the weight, rather than the admissibility of the evidence. In support of its position, Fixel, Inc. cites to Weese v. Pinellas County, 668 So.2d 221 (Fla. 2d DCA 1996). In Weese, the trial court excluded an expert's testimony based upon a finding that he used an incorrect date in calculating business damages, and the Second District Court of Appeal reversed. However, the Second District did not reverse based upon a determination that the expert should have been allowed to present his evidence even if he used an incorrect date of valuation as Fixel, Inc. claims. Rather, it reversed because it found that the expert did, in fact, use the correct date of valuation in making his determination. Id. at 222-23.
Fixel, Inc. additionally relies on Rochelle v. State Road Department, 196 So.2d 477 (Fla. 2d DCA 1967). In Rochelle, the trial court struck the testimony of a property appraiser based upon the method of evaluation he used to appraise the property. The Second District reversed, finding that the method of evaluation used by the appraiser did not relate to the competency of his testimony because it was not so totally inadequate or improper that the adoption of the method would require departing from all common sense and reason or would require the adoption of an entirely new an unauthenticated formula. Id. at 479. Instead, the Second District found that the appraiser used a new but valid and reliable formula, and that his testimony should have been tested by the jury for its weight rather than being excluded by the trial court on the basis of competency. Id. The deficiencies in Mr. Reto's testimony, however, go beyond the use of a new method of evaluation. He relied upon speculative information and used a date of valuation completely unconnected to the date of loss. These deficiencies prevent his evaluation from being valid and reliable. As his opinions were based on a totally incorrect premise, the trial court properly excluded Mr. Reto's testimony. As Norman Fixel, one of the principals of Fixel, Inc., intended to testify using the same incorrect date of valuation and speculative information as Mr. Reto had relied on, the trial court properly excluded his testimony as well.
As a result of the trial court's rulings excluding the damages testimony, it granted a directed verdict as to Fixel, Inc.'s damages claim. Fixel, Inc. asserts this was error, as its failure to establish compensatory damages should not have precluded a claim for nominal damages. As our review of the record establishes that Fixel, Inc. did not raise this argument below, we conclude that the issue is not subject to appellate review. Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999).
Fixel, Inc. also argues that the trial court erred in striking its punitive damages claim. Again we disagree, as the trial court properly found that there was insufficient evidence to submit the issue to the jury. Punitive damages are limited to truly culpable behavior and should not be *48 awarded unless the defendant "acted with malice, gross negligence or oppression." See Capital Bank v. MVB, Inc., 644 So.2d 515, 521 (Fla. 3d DCA 1994). Fixel, Inc. failed to present evidence of gross or flagrant conduct, and in fact, Mrs. Fixel testified that R & R would never want to harm her company, and Mr. Fixel testified that he did not believe that R & R's representative intentionally lied. Moreover, Fixel, Inc. failed to bring forth evidence that R & R's representations were, in fact, false. In fact, there was evidence at trial that, at the time that R & R's representative allegedly made representations to Fixel, Inc. regarding C & L's solid financial condition, C & L, which was owned by the Greenbergs, who had been in the garment industry for years with a good reputation, was showing a profit and had the financial wherewithal to meet its obligations under the agreement. Punitive damages must be proportionate to the actual harm inflicted on the plaintiff, and since the actual harm was not ascertainable, the punitive damages claim must fail. See Liggett Group, Inc. v. Engle, 853 So.2d 434, 451 (Fla. 3d DCA 2003).
Another issue raised by Fixel, Inc. is the trial court's ruling over its objection allowing R & R to disclose the dismissal of the previous defendants and in allowing R & R to question one of Fixel, Inc.'s witnesses concerning his prior history of litigation. We agree that these decisions were error. Even if it is not precluded by statute, the fact that Fixel, Inc. dismissed other defendants is irrelevant. It is also clear that the litigiousness of a witness is inadmissible. Zabner v. Howard Johnson's Inc. of Fla., 227 So.2d 543 (Fla.1969). We conclude, however, that the introduction of the objected-to evidence was harmless beyond a reasonable doubt under the circumstances of this case. As this is not an appeal from a jury verdict, the evidence that Fixel, Inc. dismissed other defendants prior to trial or that one of its witnesses was litigious, did not unfairly prejudice Fixel, Inc. The trial court entered a directed verdict due to Fixel, Inc.'s failure to present evidence on damages, not based upon the credibility of the witnesses.
Finally, Fixel, Inc. argues that the trial court erred in granting R & R's motion for summary judgment relating to Fixel, Inc.'s fraud in the inducement claim. However, at the summary judgment hearing, the evidence was uncontroverted that Fixel, Inc. continued to accept performance from C & L even after it discovered that C & L supposedly did not have the financial wherewithal to fulfill its obligations under the manufacturing agreement. Therefore, since it chose to continue its agreement with C & L after discovering that R & R's alleged representations about C & L's solid financial conditions were untrue, R & R's misrepresentations were not the cause of any damages, and Fixel, Inc. waived its claim of fraud. Mazzoni Farms, Inc. v. E.I. Du-Pont De Nemours and Co., 761 So.2d 306, 313 (Fla.2000).
Accordingly, we affirm the directed verdict against the breach of fiduciary duty and negligent misrepresentation claims, and the summary judgment entered against the claim for fraud in the inducement.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920067/ | 610 A.2d 139 (1992)
STATE of Vermont
v.
David A. PLATT, Jr.
No. 91-357.
Supreme Court of Vermont.
May 8, 1992.
*141 Dan M. Davis, Windham County State's Atty., Karen R. Carroll, Deputy State's Atty., and Diane L. Shapiro, Legal Intern, Brattleboro, for plaintiff-appellee.
David G. Reid, Brattleboro, for defendant-appellant.
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
DOOLEY, Justice.
Defendant, who is HIV positive, pled no contest to a charge of accessory after the fact to a felony, and the district court sentenced him to a three-to-five-year prison term. He appeals the court's denial, after hearing, of his motion for sentence reconsideration. His principal argument is that promises of medical treatment which induced his plea have not been kept. He also argues that the court allowed evidence of and considered charges not brought against him in determining his sentence, that he was compelled to testify at the sentence reconsideration hearing in violation of his constitutional rights, and that he was improperly denied credit for time spent under conditions of release prior to his sentencing and incarceration. We affirm.
In December 1985, Christopher Fauber was murdered by a blow to the back of his head with a blunt instrument. His body was wrapped in plastic and taken to New Hampshire, where it was dumped over the bank of a highway rest area. Defendant was charged with the murder, and he pled not guilty. Later, in part because of weaknesses in its case against defendant, the State agreed to reduce the charge to accessory after the fact to the murder. In return, defendant agreed to plead no contest to that charge. The amended information read:
[defendant] was a person not standing in relation ... to an offender, to wit; Michael Guerrera, who, after the commission of a felony, to wit; murder, assisted such offender, to wit; helped in the transportation and concealment of the victim's body with intent that Guerrera avoid arrest or punishment therefore....
The maximum penalty for acting as an accessory after the fact to a felony is seven years in prison or a $1,000 fine, or both. 13 V.S.A. § 5.
On September 5, 1990, counsel for both parties appeared before the court and explained the terms of the plea agreement. Counsel for defendant expressed his client's concern about the medical treatment that defendant would receive while incarcerated if he was sentenced to prison. Defendant specifically sought the court's assurances with respect to the availability of certain medications and a special dietary program, and that he be provided with out-of-state transportation for respiratory therapy. The court agreed to inquire of the Department of Corrections (DOC) whether defendant's concerns could be met, and expressed its willingness to incorporate the substance of the needs expressed by defendant in an order to DOC. The court stated:
They [the DOC] are hard and fast in maintaining their prerogative as to services and programming of inmates that a judge can't tell them what to do, in very plain English. So I, one, can assure you that I would make every effort to make such a proper order and, two, would try to at least get a weather report from Corrections as to whether this would be in the realm of possibility. And I suspect that's the best I will be able to get from them.
After speaking with a DOC official, the court indicated that, in principle, DOC objected only to transporting defendant out of state for treatment. The court agreed to order the Department to do a medical staffing in consultation with defendant's doctors and to issue a case plan before sentencing. The court further promised defendant that it would not impose a sentence greater than the four-to-seven-year term recommended by the State. Defendant then pled no contest to the charge contained in the amended information. A *142 sentencing hearing was held November 15-16, 1990, and the court sentenced defendant to a term of three-to-five years in prison. He was incarcerated the following month. In February, 1991, defendant filed a motion for review of his sentence under 13 V.S.A. § 7042(a) and V.R.Cr.P. 35. After hearings in May 1991, the court denied the motion.
Before we address defendant's specific claims, we must emphasize that only certain issues may be raised in a sentence reconsideration proceeding. Sentence reconsideration can be used to correct an illegal sentence or one "imposed in an illegal manner." V.R.Cr.P. 35(a); see State v. Davis, 155 Vt. 417, 418, 584 A.2d 1146, 1147 (1990). More often it is used to modify a lawful sentence. V.R.Cr.P. 35(b), (c). We recently said:
"The purpose of sentence reconsideration is to allow a second look at the sentencing decision `absent the heat of trial pressures and in calm reflection to determine that it is correct, fair, and serves the ends of justice.' [13 V.S.A. § 7042(a) ] allows modification of a sentence `which, upon reflection and in the presence of unchanged circumstances, might be shown to be unwise or unjust.' In making these determinations, the trial court has wide discretion to consider such factors as it believes are relevant."
State v. Hance, 157 Vt. ___, ___, 596 A.2d 365, 367 (1991) (quoting State v. Dean, 148 Vt. 510, 513, 536 A.2d 909, 912 (1987)) (citations omitted). It is not the purpose of sentence reconsideration to review circumstances that come about following the imposition of the sentence; generally, the review is only of the "`circumstances and factors present at the time of the original sentencing.'" State v. Derouchie, ___, Vt. ___, ___, 600 A.2d 1323, 1325 (1991) (quoting State v. LaPine, 148 Vt. 14, 15, 527 A.2d 1150, 1150 (1987)).
Defendant's motion for sentence reconsideration did not attack the legality of the sentence or the sentencing procedure. Instead, he asked the court to reduce the sentence, pursuant to V.R.Cr.P. 35, to eliminate any requirement of incarceration because the court had sentenced him as if he were charged with murder. He also maintained that he was not receiving proper medical care within the corrections system, and that he was subject to harassment by inmates and guards.
With that background in mind, we first address defendant's claim that the court failed to adhere to promises with respect to medical treatment it made as part of the consideration for defendant's plea. We conclude that this claim is not supported by either the facts or the law.
A review of the record shows that prior to defendant's plea the trial judge indicated his willingness in principle to order that defendant receive the specific medical treatment he requested. As set forth above, he added that DOC would take the position that it was not bound by such an order and he contacted DOC to inquire as to how they would respond to such a directive. After he spoke with the Commissioner of Corrections, he proposed that he order DOC to do a staffing report. Defendant accepted this suggestion, and there was no further mention of a direction to DOC to provide defendant specific treatment. Defendant pled no contest based on the court's promise to request the staffing report. The report was produced at the sentencing hearing, and a DOC nurse testified at length about the care defendant could expect if he were imprisoned. Defendant did not object to the adequacy of the report, nor did he ask at sentencing that the court order specific medical care.
Defendant argues that the treatment plan contained in the DOC staffing report has not been implemented and that the court's failure to insure the provision of treatment violates the commitment it made to induce defendant to change his plea. After evidence was presented at the sentence review hearing, the court found that its promise to order the staffing had been fulfilled by the completion of the report and that, although the treatment expected by the court at the time of sentencing had not taken place, it was largely due to defendant's failure to accept the treatment offered by the DOC and refusal to cooperate *143 with the DOC's medical staff. The record supports the court's view of its obligation. It did not make itself a surety for the treatment defendant would receive in prison. If there is a claim of breach of commitment, it lies against DOC and not the court.
There are two alternative remedies for breach of plea agreement: specific enforcement of the agreement or allowance of a plea withdrawal. In re LaRose, 141 Vt. 1, 4, 442 A.2d 467, 469 (1982); see also Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971) (state court in better position to determine, after there has been a material breach of plea agreement, whether appropriate remedy is specific enforcement or allowance of plea withdrawal). Defendant has sought neither enforcement of the purported obligation to provide specific medical services nor withdrawal of his plea. In State v. Cyr, 141 Vt. 355, 357, 449 A.2d 926, 927 (1982), we held that relying on improper information in a presentence investigation report as grounds to strike a conviction and withdraw a plea "is completely inapposite." Reliance on breach of a plea agreement to obtain a reduction of sentence similarly fails. Even if defendant's claim were factually supported, he would not be entitled to the relief he seeks.
We next address defendant's claim that the court improperly considered charges not brought against him in fashioning its sentence. The court allowed the State at the sentencing hearing, over defendant's objection, to present evidence to show that defendant played a role not only in disposing of the victim's body, but also in the murder itself. Defendant argues that, because he pled no contest to the charge of accessory after the fact to the murder, any evidence tending to show his culpability for the murder itself should have been excluded as being irrelevant and prejudicial.
If this were a direct appeal of the sentence, we would consider the propriety of the procedure used by the court. See State v. Thompson, 150 Vt. 640, 641, 556 A.2d 95, 96 (1989) (appeal of sentence imposed is encompassed in 13 V.S.A. § 7401, providing appeal of right of "judgment of conviction"). Defendant failed to appeal, however, and raised this claim as grounds for modification of sentence under Rule 35(b). Thus, defendant sought the favorable exercise of the wide discretion of the trial court, see State v. Dean, 148 Vt. at 513, 536 A.2d at 912, essentially asking that the court look again at the sentence without considering the evidence of defendant's involvement in the murder.[1]
The court went through the reconsideration that defendant sought but came to a different conclusion. The court stated:
[T]he court was not indulging in any thought process whereby it was concluding that the defendant, in fact, committed the murder and, therefore, although charged with the different offense, should be sentenced as a murderer. I think the results of the sentencing in and of itself, speak for that conclusion. If the court had indulged in such a thorough process, certainly a three to five year sentence would not have been imposed in spite of the other mitigating factors. We did not do that, and we reject the notion that we were in any way influenced by it.
We have no grounds to fault the court's analysis or result. It engaged in the calm reflection the rule requires, and its conclusion was within its discretion. See State v. Derouchie, ___ Vt. at ___, 600 A.2d at 1326 (court may consider such factors as it deems relevant, and we have "relaxed the scrutiny ordinarily paid to the adequacy of findings").
Defendant's next contention is that he was compelled to testify at the *144 sentence reconsideration hearing in violation of his constitutional privilege against self-incrimination. This issue arises because the court allowed the State to examine defendant, over his objection, about his medical needs and care. Defendant argues that this testimony violates the Fifth Amendment to the United States Constitution because the reconsideration proceeding is part of the sentencing procedure and, therefore, he was "compelled in a criminal case to be a witness against himself." United States Constitution, Amendment V; see 13 V.S.A. § 6601; Estelle v. Smith, 451 U.S. 454, 462, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).
In State v. Dean, 148 Vt. at 514, 536 A.2d at 912, this Court held that although sentencing is part of the criminal "trial" for purposes of the speedy trial right, sentence reconsideration is not part of the trial. For similar reasons, we conclude that sentence reconsideration is not part of the basic criminal case for purposes of the Fifth Amendment guarantee. See also State v. Hance, 157 Vt. at ___, 596 A.2d at 368 (sentence reconsideration is highly discretionary remedy that does not occupy a central place in the administration of justice); Minnesota v. Murphy, 465 U.S. 420, 435-36 n. 7, 104 S.Ct. 1136, 1146-47 n. 7, 79 L.Ed.2d 409 (1984) (probation revocation is not criminal proceeding for purposes of self-incrimination right). The imposition of sentence extinguished the right of self-incrimination with respect to the crime for which defendant was convicted. State v. Gleason, 154 Vt. 205, 212, 576 A.2d 1246, 1250 (1990). The sole issue before the court was whether the sentence would be reduced.
Even if there was error in having defendant testify, it was harmless. The testimony related to defendant's medical needs and care and not to the underlying offense.[2] Much of the testimony, if not all, related to "defendant's conduct and behavior since sentencing" and was irrelevant in a sentence reconsideration proceeding. State v. LaPine, 148 Vt. at 15, 527 A.2d at 1150. Defendant suffered no prejudice from his testimony.
Defendant's final contention on appeal is that the trial court erred in not granting him credit for time spent under conditions of release prior to sentencing and incarceration. During approximately two and one-half years of the period between his arrest and sentencing and incarceration, defendant was required to remain in Windham County, where he lived, be at his residence from the hours of 11:00 p.m. to 6:00 a.m., and check in with probation officers three times a week. Defendant was permitted, on his occasional requests, to deviate from those requirements for certain medical needs and family events.
The courts are mandated to grant sentencing credit for any days "spent in custody in connection with the offense for which sentence was imposed." 13 V.S.A. § 7031(b). The trial court here determined that defendant's release on conditions did not amount to custody for the purpose of the statute because the conditions did not involve "a significant imposition on the defendant's freedom" and were not the "functional equivalent of incarceration."
We addressed a similar issue on different facts in In re McPhee, 141 Vt. 4, 442 A.2d 1285 (1982). In that case the trial court had granted credit for time spent at a residential alcohol treatment facility pursuant to the trial court's pretrial release order. We held that the statute called for a case-by-case factual determination. Id. at 9, 442 A.2d at 1287-88. In upholding the trial court, we noted that defendant could not live in a place of his choosing, was subject to constant supervision and direction by the staff of the treatment center and for much of the time could not leave *145 the place to which he was restricted at any time of day or night absent special dispensation and an escort from the institution. Id. at 6, 442 A.2d at 1286.
The relevant language of our sentence-credit statute is identical to that of the federal statute as it existed prior to November 1, 1986. See 18 U.S.C. § 3568, repealed by Pub.L. 98-473, § 212(a)(1). The federal courts have held that the federal statute requires imprisonment or some comparable institutional confinement for credit to be earned. See, e.g., United States v. Figueroa, 828 F.2d 70, 71 (1st Cir.1987).
This case is distinguishable from McPhee both in kind and in degree. The defendant in McPhee was in the custody of a treatment center and thus was institutionally confined. Defendant here was not in the custody of any other person and was not in an institutional setting. The restrictions placed on defendant here do not approach those in McPhee. Defendant was restricted to his home for seven hours each night but was permitted to choose his residence, and he was free to spend his days how and where he wished, within the confines of a county, so long as he did not violate the law. He was not "in custody" within the meaning of 13 V.S.A. § 7031(b).
Affirmed.
NOTES
[1] In his reply brief, defendant argues that we should review the sentence under Rule 35(a) as one "imposed in an illegal manner." We need not reach whether defendant has made out a claim of imposition in an illegal manner. He never made this argument in the trial court. He sought only sentence reduction. He never sought resentencing, which would have been the result of a determination that the sentence was imposed in an illegal manner. See 3 C. Wright, Federal Practice and Procedure § 585, at 398 (2d ed. 1982).
[2] Defendant's counsel made a motion in limine asking the court to prohibit the prosecutor from asking questions about the underlying offense. Before the court could rule, the prosecutor agreed he would ask no questions about the underlying offense. He did not ask any such questions. He did ask about defendant's drug usage and gave defendant use immunity in order to obtain an answer. There were some objections to questions on self-incrimination grounds, but the questions were withdrawn or rephrased to avoid the objection. There is no claim that any part of defendant's testimony incriminated him. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920068/ | 180 Mich. App. 575 (1989)
447 N.W.2d 822
JERNIGAN
v.
GENERAL MOTORS CORPORATION
Docket Nos. 105553, 106661.
Michigan Court of Appeals.
Decided October 16, 1989.
Davidson, Breen & Doud, P.C. (by Craig A. Zanot), for plaintiff.
*578 Clark, Hardy, Lewis, Pollard & Page, P.C. (by Thomas A. Cattel and Neil H. Goodman), for defendant.
Before: MICHAEL J. KELLY, P.J., and GRIBBS and V.L. WASHINGTON,[*] JJ.
MICHAEL J. KELLY, P.J.
Rosa Jernigan appeals from a jury verdict of no cause of action in this employment discrimination case. Plaintiff also appeals from the circuit court's denial of her motions for a new trial or judgment non obstante veredicto, and from the court's award of attorney fees to defendant under MCR 2.403. We affirm.
Plaintiff sued defendant, Central Foundry Division of General Motors Corporation, for employment discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Plaintiff, a black woman, was hired as a sixth level workers' compensation adjuster at defendant's Saginaw Malleable Iron Plant in October of 1977. Plaintiff's complaint alleged numerous incidents of disparate treatment by defendant due to her race and gender, mainly in the way that she was treated by her supervisors and in denying her requests for promotion or cross-training. Cross-training involved an exchange of jobs between employees to broaden their work experience. Defendant evaluated the performance of its salaried employees annually. Plaintiff's performance appraisals from 1979 to 1981 rated her work at the highest possible rating. Plaintiff resigned from her job in August of 1982, claiming that she had been constructively discharged.
Plaintiff's complaint alleged that five white men in the department where she worked had been cross-trained, transferred, or promoted. She alleged *579 that she had been discriminated against and that she was not considered for or was passed over for promotion or cross-training while other white or male employees were advanced, and that she was denied promotion due to her race and gender.
Defendant argued that plaintiff did not seek promotion or cross-training until October of 1979, when defendant reduced its salaried work force due to an economic downturn in the auto industry. Defendant maintained that none of the five white male employees mentioned by plaintiff were similarly situated with plaintiff because those employees were at least seventh level employees as of October, 1979, and had all been cross-trained, transferred, or promoted prior to defendant's reduction of its salaried work force.
After a four-day jury trial, the jury found in defendant's favor. The circuit court entered a judgment of no cause of action against plaintiff and denied plaintiff's motion for a new trial or judgment notwithstanding the verdict. Following the verdict in its favor, defendant moved for an award of costs and attorney fees pursuant to MCR 2.403. The circuit court awarded defendant costs of $155.55 and attorney fees of $25,110.
I
Plaintiff first argues that the circuit court committed error requiring reversal by using defendant's proposed jury instruction instead of SJI 105.04, which was requested by plaintiff. We disagree. MCR 2.516(D)(2) provides:
Pertinent portions of the Michigan Standard Jury Instructions (SJI) must be given in each action in which jury instructions are given if
(a) they are applicable,
*580 (b) they accurately state the applicable law, and
(c) they are requested by a party.
In Johnson v Corbet, 423 Mich 304, 325-327; 377 NW2d 713 (1985), our Supreme Court noted that the Standard Jury Instructions should be used when requested, as required by MCR 2.516(D)(2), but that a jury verdict should be vacated "only when the failure to comply with MCR 2.516 amounts to an `error or defect' in the trial so that failure to set aside the verdict would be inconsistent with substantial justice."
SJI 105.04, as applied to plaintiff's case, would read:
Plaintiff has the burden of proving that: (a) defendant failed to promote and/or failed to train the plaintiff and (b) race/color and/or sex was one of the motives or reasons which made a difference in determining to fail to promote and/or failing to train the plaintiff.
Your verdict will be for the plaintiff if you find that defendant failed to promote and/or failed to train the plaintiff and that race, color and/or sex was one of the motives or reasons which made a difference in determining to fail to promote and/or train the plaintiff.
Your verdict will be for the defendant if you find that defendant did not fail to promote and/or fail to train the plaintiff. Your verdict will also be for the defendant if you find that defendant did fail to promote and/or fail to train the plaintiff, but that race, color and/or sex was not one of the motives or reasons which made a difference in determining to fail to promote and/or fail to train the plaintiff.
Rather than read SJI 105.04 to the jury verbatim, the court gave the following instruction, which had been requested by defendant:
The plaintiff has the burden of proving that *581 similarly situated white or male employees were promoted or cross-trained or treated differently during the period plaintiff sought promotions and cross-training, and that plaintiff's race, color or sex was one of the motives or reasons which made a difference in determining not to promote or cross-train the plaintiff, or in her treatment by the defendant.
Your verdict will be for the plaintiff, Rosa Jernigan, if you find that similarly situated white or male employees were promoted or cross-trained or treated differently during the period plaintiff sought promotions and cross-training and that plaintiff's race, color or sex was one of the motives or reasons which made a difference in determining not to promote or cross-train her or in her treatment by the defendant.
Your verdict will be for the defendant if you find that similarly situated white or male employees were not promoted or cross-trained during the period plaintiff sought promotion and cross-training, or treated differently, or that plaintiff's race, color or her sex did not make a difference in determining whether or not to promote or cross-train the plaintiff or in her treatment by the defendant.
Plaintiff argues that the trial court's jury instruction placed an additional burden of proof on plaintiff and misstated the law, so the jury's verdict must be overturned. We agree that the instruction was erroneous, but disagree that reversal is required. At trial the parties agreed that SJI 105.04 was applicable. Since the instruction as drafted requires completion, each party proposed its version of a completed instruction based upon the nature of plaintiff's claim.
Plaintiff's complaint alleged that defendant discriminated against her on the basis of her race and gender by disparate treatment. To establish a prima facie case, plaintiff must show that she was *582 a member of a class entitled to protection under the civil rights statute, and that, for the same or similar conduct, she was treated differently due to her race or gender. Sisson v Bd of Regents of the University of Michigan, 174 Mich App 742, 746-747; 436 NW2d 747 (1989); Pomranky v Zack Co, 159 Mich App 338, 343; 405 NW2d 881 (1987). Thus, plaintiff had the burden of proving that defendant failed to promote or cross-train her and that her race and gender were among the reasons which made a difference in defendant's failure to promote or cross-train her. Under the instruction given, the jury was correctly told that plaintiff had the burden of showing that defendant treated her differently than other similarly situated employees but the jury was erroneously told that plaintiff alternatively had the burden of proving that white or male employees were promoted or cross-trained during the same period plaintiff sought promotion or cross-training. Since from our review of the record there was no evidence of disparate treatment and plaintiff's proofs focused on seventh level employees, not her own sixth level, we find any error harmless beyond a reasonable doubt. Johnson v Corbet, supra.
We conclude that this misstatement does not require reversal. Jury instructions must be read as a whole; reversal is not required if the parties' theories and applicable law were fairly presented to the jury. Solomon v Shuell, 166 Mich App 19, 27; 420 NW2d 160 (1988). A reading of the jury instructions in their entirety, in the context of the facts of plaintiff's case and plaintiff's theories, convinces us that any error was harmless. It appears that the trial court did fairly present the parties' theories and applicable law to the jury. We do not believe that the jury was unduly confused by this instruction or would have reached a *583 different result had the court merely read SJI 105.04 straight from the book. Failure to set aside the jury's no cause verdict would not be inconsistent with substantial justice.
II
Plaintiff claims that the trial court committed error requiring reversal by excluding from evidence a letter sent to plaintiff after plaintiff's resignation by Richard O'Brien, General Motors' Director of Worldwide Personnel Administration. The court excluded this letter under MRE 407 because it contained references to subsequent remedial measures which plaintiff proposed to use to prove defendant's culpable conduct. Plaintiff argues that the court erred by excluding the letter because it was admissible as a party admission under MRE 801(d)(2). We find no error.
MRE 801(d)(2) provides that a statement is not hearsay if:
The statement is offered against a party and is . .. (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship....
However, the court did not rule that the letter was inadmissible hearsay. Instead, the court ruled that the letter was inadmissible under MRE 407 because it referred to subsequent remedial measures which, had they been taken, might have enhanced plaintiff's chances for promotion or cross-training. MRE 407 provides:
When, after an event, measures are taken *584 which, if taken previously would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. [Emphasis added.]
Review of the letter in question does indicate that it contains references to subsequent remedial measures taken to lessen discrimination in training and promotion. The circuit court properly excluded this evidence under MRE 407.
III
Plaintiff argues that the circuit court committed error requiring reversal by granting defendant's pretrial motion to preclude six of plaintiff's witnesses from testifying at trial. We disagree.
Whether to permit an undisclosed witness to testify is within the trial court's discretion. Elmore v Ellis, 115 Mich App 609, 613; 321 NW2d 744 (1982); Dehring v Northern Michigan Exploration Co, Inc, 104 Mich App 300, 321; 304 NW2d 560 (1981). Such a decision should not be reversed absent an abuse of discretion. Id.
Plaintiff filed her initial witness list in September of 1984, and supplemented it in May of 1985. The six witnesses in question were not included on either witness list. One month before trial, plaintiff filed a trial brief listing the six witnesses. Defendant moved to preclude these additional witnesses from testifying on the basis that plaintiff failed to comply with a pretrial order. The circuit court granted defendant's motion, and ordered the witnesses excluded. The court indicated that it *585 would allow plaintiff to make a separate record as to what those witnesses would testify, but plaintiff declined to do so.
We find no abuse of discretion in the court's actions. Plaintiff did not state good cause for her failure to list such a large number of witnesses until very close to the trial date, nor did plaintiff bother to make a separate record to demonstrate the importance of their testimony. Under these circumstances, the court did not err by excluding these witnesses from testifying.
IV
Plaintiff argues that the trial court erred by denying her motion for a new trial or judgment notwithstanding the verdict because the jury's verdict was against the great weight of the evidence. Plaintiff claims that defendant failed to present evidence of nondiscriminatory intent to rebut plaintiff's prima facie case. We disagree.
Whether to grant a new trial on the basis that the verdict is against the great weight of the evidence is within the sound discretion of the trial judge, and the judge's decision will not be reversed absent a clear abuse of that discretion. Bosak v Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985), reh den 424 Mich 1201 (1985). Judgment non obstante veredicto is appropriate only when the evidence and inferences to be drawn from it, viewed in the light most favorable to the opposing party, entitle the moving party to judgment as a matter of law. The Yoder Co v Liberty Mutual Ins Co, 92 Mich App 386, 391; 284 NW2d 810 (1979). Only when reasonable minds could not differ in the conclusion advocated by the movant may the jury's verdict be ignored. Yoder Co, p 391.
We find no error in the court's denial of plaintiff's *586 motions for a new trial or judgment notwithstanding the verdict. Plaintiff did present a prima facie case of race or gender discrimination. However, defendant effectively rebutted plaintiff's prima facie case with extensive evidence of a nondiscriminatory reason denying this request for a promotion or cross-training, namely, its large reductions in salaried work force which began in August of 1979. Plaintiff did not present any evidence to show that the nondiscriminatory motives asserted by defendant were merely a pretext for discrimination. The jury's verdict was not against the great weight of the evidence. The trial court properly denied plaintiff a new trial or judgment notwithstanding the verdict.
V
Plaintiff argues that the trial court erred in awarding defendant attorney fees of $25,110. Plaintiff argues that these fees were unreasonable, and must be reversed. We disagree. MCR 2.403(0)(1) and (6) provide:
If a party has rejected [a mediation] evaluation and the action proceeds to trial, that party must pay the opposing party's actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation.
* * *
For the purpose of this rule, actual costs include those costs taxable in any civil action and a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the mediation evaluation.
*587 An award of attorney fees will be upheld by this Court absent an abuse of discretion. Petterman v Haverhill Farms, Inc, 125 Mich App 30, 32; 335 NW2d 710 (1983). The factors to be considered in determining the reasonableness of attorney fees are
(1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client. [Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982), quoting Crawley v Schick, 48 Mich App 728, 737; 211 NW2d 217 (1973).]
The Court went on to state:
While a trial court should consider the guidelines of Crawley, it is not limited to those factors in making its determination. Further, the trial court need not detail its findings as to each specific factor considered. The award will be upheld unless it appears upon appellate review that the trial court's finding on the "reasonableness" issue was an abuse of discretion. [Id.]
On appeal, plaintiff claims that defense counsel's hourly billing rates were unreasonable for the locale of the suit, and that defense counsel's services were often duplicated and repeated. We note that plaintiff did not present any evidence regarding attorney fees typical of the locale or why defense counsel's fees were unreasonable. Nor did plaintiff present any evidence to the trial court establishing which of defense counsel's particular services were duplicative or repetitive. Plaintiff's assertion that the assessed fees were unreasonable is simply not supported by evidence on the record. *588 The trial court did not abuse its discretion in awarding defendant these fees.
Affirmed.
GRIBBS, J., concurred.
V.L. WASHINGTON, J. (dissenting).
I dissent.
Because of an instructional error, and because rulings on the exclusion of evidence and the exclusion of witnesses erroneously deprived plaintiff of a full opportunity to persuade the jury, I would reverse.
I agree with plaintiff that prejudicial error requiring reversal occurred because the trial court refused to give an applicable, requested Standard Jury Instruction on plaintiff's burden of proof, and used instead defendant's proposed instruction which deviated from the SJI and misstated the law.
Prior to the jury's instruction, plaintiff's counsel requested the trial court to use SJI 105.04 in instructing the jury regarding plaintiff's burden of proof. When the trial court stated it would not give the applicable SJI and, instead, would give the instruction defendant proposed, plaintiff objected. Plaintiff's counsel argued that the instruction as proposed by defendant would unduly confuse the jury as to the issues.
SJI 105.04 provides:
Plaintiff has the burden of proving that:
a. defendant [discharged/failed to hire/failed to promote/failed to train/harassed/ _______________________] the plaintiff, and other
b. [religion/race/color/national origin/age/sex/height/weight/marital status] was one of the motives or reasons which made a difference in determining to [discharge/fail to hire/fail to promote/fail to train/harass _______________________] the other plaintiff.
*589 Your verdict will be for the plaintiff if you find that defendant [discharged/failed to hire/failed to promote/failed to train/harassed/ ____________________] the plaintiff, and that other [religion/race/color/national origin/age/sex/height/weight/marital status] was one of the motives or reasons which made a difference in determining to [discharge/fail to hire/fail to promote/fail to train/harass/ ____________________] the plaintiff. other
Your verdict will be for the defendant if you find that the defendant did not [discharge/fail to hire/fail to promote/fail to train/harass/ ___________________] the plaintiff. other Your verdict will also be for the defendant if you find that defendant did [discharge/fail to hire/fail to promote/fail to train/harass/ ___________________] other the plaintiff, but that [religion/race/color/national origin/age/sex/height/weight/marital status] was not one of the motives or reasons which made a difference in determining to [discharge/fail to hire/fail to promote/fail to train/harass/ _________________] other the plaintiff.
In reviewing SJI 105.04, the trial court stated that the only word that was standard was "defendant." The rest was to be filled in by the parties according to the parties' claims, the trial court stated, adding that the instruction defendant proposed more fairly stated plaintiff's claims.
The requested instruction which the trial court failed to give provided:
Plaintiff has the burden of proving that: (a) defendant failed to promote and/or failed to train the plaintiff and
*590 (b) race/color and/or sex was one of the motives or reasons which made a difference in determining to fail to promote and/or failing to train.
Your verdict will be for the plaintiff if you find that defendant failed to promote and/or failed to train the plaintiff and that race, color and/or sex was one of the motives or reasons which made a difference in determining to fail to promote and/or train the plaintiff.
Your verdict will be for the defendant if you find that defendant did not fail to promote and/or fail to train the plaintiff. Your verdict will also be for the defendant if you find that defendant did fail to promote and/or fail to train the plaintiff, but that race, color and/or sex was not one of the motives or reasons which made a difference in determining to fail to promote and/or fail to train the plaintiff.
The court's charge to the jury on plaintiff's burden of proof was:
The plaintiff has the burden of proving that similarly situated white or male employees were promoted or cross-trained or treated differently during the period plaintiff sought promotions and cross-training, and that plaintiff's race, color or sex was one of the motives or reasons which made a difference in determining not to promote or cross-train the plaintiff, or in her treatment by the defendant.
Your verdict will be for the plaintiff, Rosa Jernigan, if you find that similarly situated white or male employees were promoted or cross-trained or treated differently during the period plaintiff sought promotions and cross-training and that plaintiff's race, color or sex was one of the motives or reasons which made a difference in determining not to promote or cross-train her or in her treatment by the defendant.
Your verdict will be for the defendant if you find that similarly situated white or male employees were not promoted or cross-trained during the *591 period plaintiff sought promotions and cross-training, or treated differently, or that plaintiff's race, color or her sex did not make a difference in determining whether or not to promote or cross-train the plaintiff or in her treatment by the defendant.
The burden of proof in employment discrimination cases brought under the Civil Rights Act is the same as for cases brought under Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. In Texas Dep't of Community Affairs v Burdine, 450 US 248, 252-253; 101 S Ct 1089; 67 L Ed 2d 207 (1981), the United States Supreme Court stated plaintiff's burden of proof thusly:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." ... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
In a race discrimination case, plaintiff establishes a prima facie case of discrimination by showing (1) that plaintiff was a member of the class entitled to protection under the act, and (2) that, for the same or similar conduct, plaintiff was treated differently than one who was a member of a different race. Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785; 369 NW2d 223 (1985); Sisson v Bd of Regents of the University of Michigan, 174 Mich App 742; 436 NW2d 747 (1989).
*592 Similarly, plaintiff establishes a prima facie case of sex discrimination by showing (1) that plaintiff was a member of a class entitled to protection under the act, and (2) that, for the same or similar conduct, plaintiff was treated differently than a man. Pomranky v Zack Co, 159 Mich App 338, 343; 405 NW2d 881 (1987). Whether an employee is similarly situated is a question of fact for the jury.
I find that the trial court erred in failing to give SJI 105.04. Although the standard jury instruction did require the trial court to tailor it to the specific facts of this case, MCR 2.516 required the trial court to follow the format of the standard jury instruction. Instead, the trial court gave an instruction which defendant proposed, which did not follow the format of the standard jury instruction. In addition, the jury may have been confused by the instruction. The instruction suggested that, if defendant had a legitimate, nondiscriminatory reason for failing to promote or to cross-train whites or males due to economic reasons, then defendant's decision regarding plaintiff's nonpromotion was made for the identical reason. In addition, the time frame stated in the instruction, limiting the jury's consideration of evidence of discrimination to the period plaintiff sought promotion or cross-training, was erroneous. No such time frame is provided in SJI 105.04. In employment discrimination cases, evidence of discrimination is rarely direct, and plaintiffs often rely on circumstantial evidence to prove their claims. In Riordan v Kempiners, 831 F2d 690, 698-699 (CA 7, 1987), the court noted that, given the importance of circumstantial evidence in proving (and, equally, disproving) employment discrimination, a blanket exclusion of evidence of events that occurred before or after the alleged discrimination is *593 arbitrary. Similarly, limiting the jury's review of that evidence would be arbitrary. Therefore, I would find that plaintiff has demonstrated that affirmance of the jury's verdict would be "inconsistent with substantial justice," and plaintiff should be granted a new trial.
As to the issue regarding the circuit court's grant of defendant's pretrial motion to preclude six of plaintiff's witnesses from testifying at trial, it should be noted that the pretrial order which defendant claims plaintiff violated required the parties to amend their witness lists after discovery was completed and provided that failure to do so "may result in that witness not being allowed not to testify." Five of plaintiff's additional witnesses were employees of defendant and plaintiff withdrew the name of another nonemployee witness. Since several of the proposed witnesses were employees of defendant, it was not shown how defendant would be prejudiced if the witness list was amended. Since no separate record was made, I am unable to determine whether the trial court properly exercised its discretion in precluding these witnesses from testifying. Since I would reverse in this case, I would order that, on remand, the trial court reconsider the blanket preclusion of plaintiff's witnesses and determine which of the five witnesses, if any, should testify upon retrial.
Additionally, the trial court excluded from evidence a letter sent to plaintiff from Richard O'Brien, General Motors' Director of Worldwide Personnel Administration, in November, 1982, about three months after plaintiff's resignation.
Plaintiff argues that the letter was a party admission under MRE 801(d)(2)(D). Defendant counters that the letter was properly excluded under MRE 407 as a subsequent remedial measure. I agree with plaintiff. MRE 801(d)(2)(D) provides *594 that a statement is not hearsay if it is offered against a party and is "a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship." The statements contained in O'Brien's letter were made by O'Brien as an employee of defendant, they concerned a matter within the scope of his agency or employment and the statements were made during the existence of that relationship. Moody v Pulte Homes, Inc, 423 Mich 150, 173-175; 378 NW2d 319 (1985); Kaiser Aluminum & Chemical Corp v Illinois C G R Co, 615 F2d 470, 476 (CA 8, 1980), cert den 449 US 890; 101 S Ct 249; 66 L Ed 2d 116 (1980); 4 Weinstein, Evidence, ¶ 801(d)(2)(D)[01], pp 801-221 to 801-224. I conclude that the trial court erred in excluding the letter from evidence.
Finally, I would find that the attorney fees were inappropriate as assessed. "In making a final award of attorney fees, the trial court should determine a reasonable fee based on the particular facts of the case and community legal practice." Petterman v Haverhill Farms, Inc, 125 Mich App 30, 33; 335 NW2d 710 (1983). In Johnston v Detroit Hoist & Crane Co, 142 Mich App 597, 601; 370. NW2d 1 (1985), this Court approved the trial court's approach which consisted of assessing a reasonable attorney fee for that locale under the circumstances. The trial court in the instant case should have considered these factors in making its determination.
I would reverse.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588062/ | 205 P.3d 888 (2009)
346 Or. 116
STATE
v.
QUINTANA.
No. (S056865).
Supreme Court of Oregon.
March 26, 2009.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617274/ | 623 So. 2d 1182 (1993)
Marie G. FABRE, et vir, Petitioners,
v.
Ann MARIN, Respondent.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner,
v.
Ann MARIN, Respondent.
Nos. 79869, 79870.
Supreme Court of Florida.
August 26, 1993.
*1183 Mare R. Ginsberg of Mandina & Ginsberg, and James K. Clark of Barnett, Clark and Barnard, Miami, for petitioners.
Neal A. Roth of Grossman & Roth, and Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for respondent.
Marguerite H. Davis of Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge, P.A., Tallahassee, amicus curiae for American Ins. Ass'n.
Robert A. Butterworth, Atty. Gen. and Cecilia Bradley, Asst. Atty. Gen., Tallahassee, amicus curiae for the State of Florida, Dept. of Ins., Div. of Risk Management.
Bonita L. Kneeland of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, amicus curiae for the Florida Ass'n for Ins. Review.
Roy D. Wasson, Miami, amicus curiae for Dade County Trial Lawyers Ass'n.
Barbara W. Green, Coconut Grove, and Karen J. Haas, Miami, amicus curiae for Academy of Florida Trial Lawyers.
GRIMES, Justice.
We review Fabre v. Marin, 597 So. 2d 883 (Fla. 3d DCA 1992), based upon its certified conflict with Messmer v. Teacher's Insurance Co., 588 So. 2d 610 (Fla. 5th DCA 1991), review denied, 598 So. 2d 77 (Fla. 1992). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution.
Ann Marin was injured in an accident while riding as a passenger in an automobile driven by her husband, Ramon Marin. Mrs. Marin sued Marie and Eddie Fabre, claiming that while driving her husband's automobile Mrs. Fabre had negligently changed lanes in front of the Marin vehicle, causing it to swerve into a guardrail. The Fabres denied responsibility and asserted that Mrs. Fabre had been parked on the expressway shoulder four to five minutes prior to the collision to change a flat tire. They contended that it was another automobile which had cut off the Marin vehicle. During discovery, Mrs. Marin learned that the Fabres' liability insurance for injuries to one person was limited to $10,000. Therefore, she amended her complaint to add her uninsured motorist carrier, State Farm, as an additional defendant.
At the jury charge conference, the trial judge denied the defendants' request that the verdict form be drafted so as to allow the jury to apportion blame for the accident between Mr. Marin and Mrs. Fabre. However, to obviate the necessity of a retrial if this ruling later proved to be erroneous, Mrs. Marin agreed to have the issue of Mr. Marin's negligence submitted to the jury subject to a posttrial determination of whether any affirmative finding on that issue would result in a reduction of Mrs. Marin's recovery. The jury returned a verdict finding both Mrs. Fabre and Mr. Marin 50% at fault. The jury awarded Mrs. Marin $12,750 in economic damages and $350,000 in noneconomic damages. The trial judge granted a $5,000 remittitur on Mrs. Marin's economic damages but refused to reduce her noneconomic damages. An amended judgment for Mrs. Marin was entered in the amount of $357,750.
On appeal, the issue was whether the liability for noneconomic damages should be apportioned to the Fabres on the basis of the percentage of fault attributed to them. Hence, the district court of appeal was called upon to interpret section 768.81(3), Florida Statutes (Supp. 1988), which states:
(3) APPORTIONMENT OF DAMAGES. In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that *1184 party on the basis of the doctrine of joint and several liability.
The court employed the following reasoning to conclude that the statute was ambiguous:
The statute does not define the term "party." As used in subsection three, "party" may be interpreted as referring to: 1) persons involved in an accident; 2) defendants in a lawsuit; or 3) all litigants in the lawsuit. Despite appellants' urging to the contrary, we decline to apply the first interpretation: subsection three requires a court to enter judgment against liable parties; the court lacks jurisdiction to enter a judgment against nonparties, such as Ramon. The statute does not indicate what quantity or total the court should utilize to factor the "percentage of fault" for which judgment shall be entered, that is, whether to consider the fault attributable to all defendants, or to all participants in the accident. The resolution again depends on the definition assigned to the term "party."
Fabre v. Marin, 597 So.2d at 885. After pointing out that Mrs. Marin could not recover damages from her husband because of the doctrine of interspousal tort immunity, the court concluded that in discarding joint and several liability, the legislature did not intend to curtail a fault-free plaintiff's ability to recover the total of her damages. Rather, the legislature intended only to apportion liability among those tortfeasors who were defendants in the lawsuit. Hence, the court affirmed the full amount of the judgment.
In Messmer, the Fifth District Court of Appeal reached the opposite conclusion in applying section 768.81(3) to facts which for purposes of this appeal were the same as those in the instant case. The Messmer court adopted the rationale of the trial court's order, which read in pertinent part:
"Section 768.81(3) provides that the court shall enter judgment against `each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.' The court is of the opinion that the language of the statute supports defendant's contention that a party's percentage of the total fault of all participants in the accident is the operative percentage to be considered. The use of the word `party' simply describes an entity against whom judgment is to be entered and is not intended as a word of limitation. Had the legislature intended the apportionment computation to be limited to the combined negligence of those who happened to be parties to the proceeding, it would have so stated. The plain meaning of the word percentage is a proportionate share of the whole, and this meaning should apply in the absence of any language altering or limiting the plain meaning. See Holly v. Auld, 450 So. 2d 217 (Fla. 1984).
Even if the language of the statute were deemed to be ambiguous, this court would look to the legislative intent and purpose of the statute... . The obvious purpose of the statute was to partially abrogate the doctrine of joint and several liability by barring its application to non-economic damage. To exclude from the computation the fault of an entity that happens not to be a party to the particular proceeding would thwart this intent."
Messmer, 588 So.2d at 611-12. Thus, the court held that the defendant was responsible only for that portion of the noneconomic damages equivalent to the percentage of fault attributable to that defendant. In Dosdourian v. Carsten, 580 So. 2d 869 (Fla. 4th DCA 1991), quashed on other grounds, 624 So. 2d 241 (Fla. 1993), the Fourth District Court of Appeal adopted the Messmer interpretation of the statute.
The doctrines of contributory negligence and joint and several liability have been part of our common law for many years. See Smith v. Department of Ins., 507 So. 2d 1080 (Fla. 1987). In the case of the former, even if the plaintiff's negligence was only partially responsible for the accident, there could be no recovery from defendants who may have been guilty of even greater negligence. Louisville & N.R.R. v. Yniestra, 21 Fla. 700 (1886). In the case of the latter, all negligent defendants were held responsible for the total of the plaintiff's damages regardless of the extent of each defendant's fault in causing the accident. Louisville & N.R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914).
*1185 In Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973), this Court took the first step toward equating liability with fault. In receding from the doctrine of contributory negligence, this Court said:
If fault is to remain the test of liability, then the doctrine of comparative negligence which involves apportionment of the loss among those whose fault contributed to the occurrence is more consistent with liability based on a fault premise.
Id. at 436. Thereafter, in Lincenberg v. Issen, 318 So. 2d 386, 391 (Fla. 1975), we abolished the rule against contribution among joint tortfeasors, stating that "it would be undesirable for this Court to retain a rule that under a system based on fault, casts the entire burden of a loss for which several may be responsible upon only one of those at fault... ." Subsequently, the doctrine of joint and several liability was severely tested in Walt Disney World Co. v. Wood, 515 So. 2d 198 (Fla. 1987), a case in which the jury had returned a verdict finding the plaintiff 14% at fault, Walt Disney World 1% at fault, and the plaintiff's fiance who was not joined as a defendant 85% at fault. While recognizing the logic in Disney's position that it should not be responsible for 86% of the damages, we declined to judicially eliminate joint and several liability on the premise that this was a public policy matter which would be best decided by the legislature. The legislature acted upon the subject by enacting section 768.81(3).
We conclude that the statute is unambiguous. By its clear terms, judgment should be entered against each party liable on the basis of that party's percentage of fault. The Fabres' percentage of fault was 50%. To accept Mrs. Marin's position would require the entry of a judgment against the Fabres in excess of their percentage of fault and directly contrary to the wording of the statute. We reject the suggestion that the statute is ambiguous because it fails to define the "whole" by which a party's percentage of fault is to be determined. The "fault" which gives rise to the accident is the "whole" from which the fact-finder determines the party-defendant's percentage of liability. Clearly, the only means of determining a party's percentage of fault is to compare that party's percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.
Even if it could be said that the statute is ambiguous, we believe that the legislature intended that damages be apportioned among all participants to the accident. The abolition of joint and several liability has been advocated for many years because the doctrine has been perceived as unfairly requiring a defendant to pay more than his or her percentage of fault. Section 768.81 was enacted as part of the Tort Reform and Insurance Act of 1986, chapter 86-160, Laws of Florida, in which the legislature found "that there is in Florida a financial crisis in the liability insurance industry" and "that the current tort system has significantly contributed to the insurance availability and affordability crisis." Section 2 of the act provided in pertinent part:
The Legislature finds and declares that a solution to the current crisis in liability insurance has created an overpowering public necessity for a comprehensive combination of reforms to both the tort system and the insurance regulatory system. This act is a remedial measure and is intended to cure the current crisis and to prevent the recurrence of such a crisis.
This Court has already noted that the act disfavors joint and several liability to such a degree that it survives only in those limited situations where it is expressly retained. Conley v. Boyle Drug Co., 570 So. 2d 275 (Fla. 1990). In passing on the constitutionality of the act, we observed that the right of access to courts "does not include the right to recover for injuries beyond those caused by the particular defendant." Smith, 507 So.2d at 1091. We are convinced that section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident.
Accepting Mrs. Marin's position would mean that, depending on who was sued, a defendant could be required to pay a greater *1186 proportion of the damages than his or her proportion of fault in causing the accident. In essence, she contends that her husband's degree of negligence in the occurrence of the accident is irrelevant because he was not a defendant and that judgment should be entered against the Fabres for 100% of her damages. Not only does this result contradict the specific statutory language that "the court shall enter judgment against each party liable on the basis of such party's percentage of fault," but also it defies common sense. It would be incongruous that the legislature would have intended that the Fabres' responsibility be 100% in situations where Mrs. Marin's vehicle was operated by her husband and only 50% in situations where by chance she was a passenger in a vehicle operated by a friend.
The court below erroneously interpreted section 768.81 by concluding that the legislature would not have intended to preclude a fault-free plaintiff from recovering the total of her damages. Ever since this Court permitted contribution among joint tortfeasors, the main argument for retaining joint and several liability was that in the event one of the defendants is insolvent the plaintiff should be able to collect the entire amount of damages from a solvent defendant. By eliminating joint and several liability through the enactment of section 768.81(3), the legislature decided that for purposes of noneconomic damages a plaintiff should take each defendant as he or she finds them.[1] If a defendant is insolvent, the judgment of liability of another defendant is not increased. The statute requires the same result where a potential defendant is not or cannot be joined as a party to the lawsuit. Liability is to be determined on the basis of the percentage of fault of each participant to the accident and not on the basis of solvency or amenability to suit of other potential defendants. The fact that Mrs. Marin could not sue her husband[2] does not mean that he was not partially at fault in causing the accident.
We cannot accept Mrs. Marin's argument that our interpretation of the statute is illogical because it will result in conflicts with other statutes. We believe that any inconsistencies which may occur in given factual scenarios can be harmonized.[3] However, in the event they cannot, the legislature has already resolved the issue. Section 768.71(3), Florida Statutes (Supp. 1988) provides that if the provisions of sections 768.71-768.81 conflict with any other provisions of the Florida Statutes, such other provisions shall prevail.
Other states have interpreted similar statutes as we do. In DaFonte v. Up-Right, Inc., 2 Cal. 4th 593, 7 Cal. Rptr. 2d 238, 828 P.2d 140 (1992), the California Supreme Court reviewed a statute which provided that each defendant shall be liable only for the percentage of noneconomic damages which corresponded to that defendant's proportionate share of fault. The court unanimously concluded that the statute unambiguously required a determination of the percentage of fault of all entities who contributed to the *1187 accident rather than only those who had been joined as defendants. The court stated:
As noted, section 1431.2 itself contains no ambiguity which would permit resort to these extrinsic constructional aids. The statute plainly attacks the issue of joint liability for noneconomic tort damages root and branch. In every case, it limits the joint liability of every "defendant" to economic damages, and it shields every "defendant" from any share of noneconomic damages beyond that attributable to his or her own comparative fault. The statute contains no hint that a "defendant" escapes joint liability only for noneconomic damages attributable to fellow "defendants" while remaining jointly liable for noneconomic damage caused by others.
Id. 7 Cal. Rptr.2d at 243, 828 P.2d at 145.
In Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), the court interpreted its statute in a similar manner. The court noted:
There is nothing inherently fair about a defendant who is 10% at fault paying 100% of the loss, and there is no social policy that should compel defendants to pay more than their fair share of the loss. Plaintiffs now take the parties as they find them. If one of the parties at fault happens to be a spouse or a governmental agency and if by reason of some competing social policy the plaintiff cannot receive payment for his injuries from the spouse or agency, there is no compelling social policy which requires the codefendant to pay more than his fair share of the loss.
Id. 580 P.2d at 874.
Even without the benefit of a statute limiting joint and several liability, the court in Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (N.M.Ct. App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982), ruled that because New Mexico was a pure comparative negligence state, a defendant should not be held liable for the negligence of an unknown driver who contributed to an accident. The court stated:
We hold that defendant is not liable for the entire damage caused by defendant and the unknown driver. Defendant, as a concurrent tortfeasor, is not liable on a theory of joint and several liability.
Non-Party Concurrent Tortfeasor
Heft and Heft, Comparative Negligence Manual (1978), § 8.131, states:
It is accepted practice to include all tortfeasors in the apportionment question. This includes nonparties who may be unknown tortfeasors, phantom drivers, and persons alleged to be negligent but not liable in damages to the injured party such as in the third party cases arising in the workmen's compensation area.
Id. 646 P.2d at 586.
Other courts reaching similar conclusions include Nance v. Gulf Oil Corp., 817 F.2d 1176 (5th Cir.1987) (under Louisiana law, finder of fact must consider negligence of all persons involved in an incident even immune nonparties to the suit because an immune nonparty's negligence reduces a defendant's ultimate liability to the plaintiff); Johnson v. Niagara Mach. & Tool Works, 666 F.2d 1223 (8th Cir.1981) (under Minnesota law, a jury must consider an immune party's negligence even if that party is not a party to the suit); Connar v. West Shore Equip., 68 Wis. 2d 42, 227 N.W.2d 660 (1975) (in apportioning negligence, the negligence of all parties must be considered whether or not they are parties to the lawsuit and whether or not they can be liable); and Paul v. N.L. Indus., Inc., 624 P.2d 68, 70 (Okla. 1980) ("To limit the jury to viewing the negligence of only one tortfeasor and then ask it to apportion that negligence to the overall wrong is to ask it to judge a forest by observing just one tree. It cannot, and more important should not, be done.").
Accordingly, Mrs. Marin's judgment should be reduced by 50% of her noneconomic damages. There should be no reduction in economic damages because under section 768.81(3), joint and several liability continues to apply when a defendant's negligence equals or exceeds that of the plaintiff. We approve the opinion in Messmer. We quash the decision below and remand for proceedings consistent with this opinion.
It is so ordered.
*1188 OVERTON, McDONALD, SHAW and HARDING, JJ., concur.
BARKETT, C.J., dissents with an opinion, in which KOGAN, J., concurs.
BARKETT, Chief Justice, dissenting.
The majority's conclusion is at odds with the very essence of tort law, which provides that in a suit between an innocent victim and a negligent party, the innocent victim should be made whole by receiving damages from a negligent party. Because the language of the statute does not compel the majority's conclusion in this case, I dissent.
The Legislature undeniably intended section 768.81(3), Florida Statutes (Supp. 1988), to apply to the typical situation where each potentially at-fault person or entity is joined as a party in an action, allowing the apportionment of damages among the at-fault parties in the suit. However, nowhere in the statutory language or in legislative history has the Legislature made clear its intent to apply the statute to nonparties in the unusual situation presented by these facts. To the contrary, the language in section 768.81(3) is susceptible of at least two equally plausible interpretations of legislative intent. Compare Fabre v. Marin, 597 So. 2d 883 (Fla. 3d DCA 1992), with Messmer v. Teacher's Ins. Co., 588 So. 2d 610 (Fla. 5th DCA 1991), review denied, 598 So. 2d 77 (Fla. 1992).
The better interpretation is the one that most closely adheres to the goals of tort law and remains consistent with the other policies implemented by the Florida Legislature. The district court's interpretation in Fabre accomplishes this goal. Therefore, I would approve Fabre and disapprove Messmer.
KOGAN, J., concurs.
NOTES
[1] By retaining joint and several liability for cases in which the damages do not exceed $25,000 and for economic damages in which a defendant's percentage of fault exceeds that of the plaintiff, the legislature continued to recognize the justification for joint and several liability under some circumstances.
[2] If the accident had happened today, Mrs. Marin could sue her husband because the doctrine of interspousal immunity has now been abrogated. Waite v. Waite, 618 So. 2d 1360 (Fla. 1993).
[3] Thus, we reject the argument that our interpretation of section 768.81(3) when coupled with the right to setoff under section 768.31(5) will lead to a double reduction in the amount of damages. This possibility may be avoided by applying the setoff contemplated by section 768.31(5) against the total damages (reduced by any comparative negligence of the plaintiff) rather than against the apportioned damages caused by a particular defendant. For example, suppose defendant A is released from the suit for a settlement of $60,000 and the case goes to trial against defendant B. The jury returns a verdict finding the plaintiff's comparative negligence to be 40%, the negligence of A and B to be 30% each, and the damages to be $300,000. Because the $60,000 setoff would not reduce the plaintiff's $180,000 to below $90,000, B would still have to pay the full $90,000 for his share of the liability. Of course, if the damages were found to be $150,000, the $60,000 from the settlement with A would be set off against the plaintiff's $90,000 recovery which would mean that B's obligation would be reduced from $45,000 to $30,000. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617280/ | 623 So. 2d 1050 (1993)
Wallace Wayne HICKS and Cathy H. Hicks
v.
ALABAMA POWER COMPANY, et al.
1911903.
Supreme Court of Alabama.
May 28, 1993.
As Modified on Denial of Rehearing September 10, 1993.
*1051 Joe L. Tucker, Jr. and James V. Green, Jr. of Hardin & Tucker, Birmingham, for appellants.
S. Allen Baker, Jr. and James A. Bradford of Balch & Bingham, Birmingham, for appellees.
HORNSBY, Chief Justice.
Wallace Wayne Hicks sued Alabama Power Company ("APCo"), alleging that APCo negligently maintained the premises where Hicks was working and that its negligence caused him to be injured. His wife, Cathy H. Hicks, joined his complaint, claiming damages for loss of consortium. APCo asserted that it was Hicks's "special employer" under Ala.Code 1975, § 25-5-53 (the exclusivity provision of Alabama's Workers' Compensation Act). The trial court entered a summary judgment for APCo on that basis; the plaintiffs appeal.
The evidence is undisputed that in 1974 Hicks was a member of Structural Iron Workers Local Union No. 92, which assigned him to work at Sullivan, Long & Haggerty ("SLH"), a construction company. SLH and APCo had entered into a contract (the "SLH contract"), wherein SLH agreed to provide APCo with generation plant construction work, including craft labor and supervision, for its Miller Steam Plant project in Jefferson County, Alabama. The plaintiff worked at Miller Steam Plant pursuant to this contract. With the exception of certain occasions when his employment with SLH was terminated and he did work for other employers arranged by his local union, Hicks worked continuously at Miller Steam Plant between 1974 and March 1988, the date of the accident. At all times while working at Miller Steam Plant, Hicks worked as an ironworker.
In March 1988, Hicks was injured at Miller Steam Plant while climbing upon a continuously moving elevator-type device known as a "man-lift" that allowed workers to move between different floors of a building under construction. He received worker's compensation *1052 benefits from SLH for this injury.[1] After settling his workers' compensation claim, Hicks sued APCo. On appeal, Hicks and his wife argue that he presented substantial evidence that APCo was not his special employer.
"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So. 2d 872 (Ala.1979)); Rule 56(c), A.R.Civ.P. The movant has the burden of "showing material facts, which, if uncontested, entitle the movant to judgment as a matter of law." Berner v. Caldwell, 543 So. 2d 686, 688 (Ala.1989); Woodham v. Nationwide Life Ins. Co., 349 So. 2d 1110, 1111 (Ala.1977). Once the movant has made this showing, the opposing party then has the burden of presenting evidence creating a genuine issue of material fact. Danford v. Arnold, 582 So. 2d 545, 546 (Ala.1991); Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989).
This action was filed after June 11, 1987; therefore, the nonmovant must meet the burden of establishing the existence of a genuine issue of material fact by substantial evidence. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, supra. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990); Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1383 (Ala.1986); Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986).
When a defendant in a common law action for damages asserts that the action will not lie because the injured person or decedent was a "special employee" of the defendant, the defense is an affirmative one, and the burden rests on the defendant to plead and prove it. Bechtel v. Crown Central Petroleum Corp., 451 So. 2d 793, 795 (Ala. 1984); Rule 56(c), A.R.Civ.P. If APCo was a "special employer" of Hicks, as it argues, the exclusive remedy for Hicks's injury would be under the Workers' Compensation Act.
In Terry v. Read Steel Products, 430 So. 2d 862, 865 (Ala.1983), this Court first held that a defendant could be a "special employer" under Alabama's Workers' Compensation Act, and be held responsible for worker's compensation but immune from tort liability for injuries sustained by an employee. We adopted the following three-pronged test to determine who is a "special employer":
"When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if
"(a) the employee has made a contract of hire, express or implied, with the special employer;
"(b) the work being done is essentially that of the special employer; and
"(c) the special employer has the right to control the details of the work.
"When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen's compensation...."
Terry, 430 So.2d at 865, quoting 1C A. Larson, The Law of Workmen's Compensation, § 48 (1980).
Hicks argues that he presented evidence creating a genuine issue of material fact regarding each of the three prongs of the *1053 "special employer" doctrine. He argues that under the facts of this case one could find that he was employed solely by SLH and not by APCo.
APCo, however, argues that the underlying facts of this case are identical to those presented in Rhodes v. Alabama Power Co., 599 So. 2d 27 (Ala.1992), wherein we affirmed a summary judgment in favor of APCo based on the "special employer" defense asserted by APCo for an accident that occurred at APCo's Miller Steam Plant and injured an employee of SLH, which had a contract with APCo that, it argues, is substantially similar to the one involved in this case.
In Rhodes, this Court addressed only the issue of "control." The plaintiffs in Rhodes did not raise the additional issues of "contract of hire" and "work of the special employer." 599 So.2d at 29. Because Hicks has raised these issues, the result in this case, as to those issues, is not controlled by the holding in Rhodes.
This Court has held that in determining whether a special employment relationship exists "the most important criterion to be scrutinized is the requirement of a contract of hire, express or implied." Terry v. Read Steel Products, 430 So.2d at 866. Indeed, "the courts have usually been vigilant in insisting upon a showing of deliberate and informed consent by the employee before employment relation will be held a bar to common-law suit." 1C, A. Larson, Workmen's Compensation Law, § 48.12, p. X-XXX-X-XXX. A mutual agreement between the employee and the person alleged or claiming to be the special employer, i.e., a contract of hire, express or implied, is essential because an employee loses the right to sue the special employer at common law, while gaining other rights, when he or she enters into the special employment relationship. Id.
APCo admits that it had entered into no express contract with Hicks, but it argues that an implied contract existed by virtue of Hicks's understanding of, and his submission and consent to, APCo's exercise of control over his work. APCo argues that Hicks's consent may be inferred under the circumstances because he was hired pursuant to a labor broker contract. APCo argues that in labor broker contracts the general employer exists merely to place the employee with a special employer; it contends that the employee's consent and submission to the control of the special employer permits an implication of the employee's consent to that relationship. APCo argues that Hicks's acknowledgment that SLH was a "manpower supplier" indicates Hicks's awareness and understanding of the true working relationship between APCo and SLH and indicates his submission and acquiescence to APCo's supervisory role. APCo argues that this evidence, combined with evidence that APCo controlled the details of Hicks's work, conclusively establishes that an implied contract of hire existed between Hicks and APCo.
In contrast, Hicks argues that no implied contract between him and APCo existed. He argues that an employment relationship cannot be thrust upon him without his knowledge or consent and that he must understand that he is submitting himself to the control of a new master. Hicks argues that he did not understand this and that the SLH contract expressly contradicts APCo's contentions that he was an employee of APCo. He argues that the SLH contract does not permit an inference of consent. The contract itself, he argues, unequivocally expresses APCo's intent to consider SLH and its employees as independent contractors rather than as employees of APCo.
Hicks presented article 12 of the SLH contract as evidence that APCo did not intend to treat SLH and its employees as employees of APCo. That article provides as follows:
"[SLH], in accordance with its status as an independent contractor shall not act as an agent or employee of [APCo], but shall be and act as an independent contractor, and hereby covenants and agrees that it will neither hold itself out as nor claim to be an officer or employee of [APCo] ... and that it will not ... make any claim, demand, or application to or for any right or privilege applicable to an officer or employee of [APCo], including but not *1054 limited to, workmen's compensation coverage...."
(Emphasis supplied.) Hicks argues that the unequivocal language of the SLH contract prohibits SLH and its employees from claiming to be employees of APCo. This provision, Hicks argues, undermines APCo's argument that Hicks is a special employee of APCo.
Hicks also argues that other provisions of the labor agreement indicate that APCo had no intention to employ Hicks:
"Wages. The wages to be paid and the fringe benefits to be provided by the contractor [SLH] shall be those provided in the current local labor agreement between the Union and the currently recognized bargaining representative.
"Hiring Procedures. The contractor will utilize the job referral facilities of the Union.... [The] contractor has the right to reject any job applicant referred by the Union. In the event these referral facilities maintained by the Union are unable to fill [the] requisitions of the contractor ... the contractor may staff the job in any manner it sees fit and the employees hired in this manner may be used so long as the need for their services exists.
"Management Rights. The contractor retains full and exclusive authority for the management of its operations and the directions of its work force.... [S]uch management rights shall include, but not be limited to ... the right to hire, fire, transfer, relieve, promote or demote employees; to determine the number of hours per day or per week during which its operation shall be carried on; to assign, accomplish, schedule, reschedule, and withdraw work as required; and all other rights for the full and complete prosecution of the work."
(Emphasis supplied.) Hicks argues that these provisions, and others, demonstrate that APCo had no intention to employ Hicks. Hicks argues that this evidence creates a genuine issue of material fact as to whether an implied contract between Hicks and APCo existed.
This Court has reviewed several cases addressing the issue of whether an implied contract of hire exists to support a finding of special employment. See, e.g., Pinson v. Alabama Power Co., 557 So. 2d 1236 (Ala. 1990) (concluding that an implied contract of hire existed); Marlow v. Mid-South Tool Co., 535 So. 2d 120 (Ala.1988) (holding that Mid-South was a special employer without expressly considering the issue of an implied contract of hire); Bechtel v. Crown Central Petroleum Corp., 495 So. 2d 1052 (Ala.1986) (concluding that an implied contract of hire existed and created a special employment relationship); Pettaway v. Mobile Point Mfg. Co., 467 So. 2d 228 (Ala.1985) (not expressly considering the issue of an implied contract of hire but holding that a special employment relationship existed); and Terry v. Read Steel Products, supra (holding that an implied contract of hire existed).
The facts in this case are distinguishable from those presented in Pinson, 557 So. 2d 1236 (Ala.1990), where we held that an implied contract of hire existed between Pinson and Alabama Power Company. In Pinson, there was no evidence that the contract between Ellard and Alabama Power forbade Ellard and its employees from claiming to be an employee or employees of Alabama Power.
This case is also distinguishable from the other cases addressing this issue. In Terry, Pettaway, and Marlow, the plaintiff's general employer was an employment agency or employment service such as Kelly Services, Inc., or Manpower, Inc. In Bechtel, the plaintiff's general employer, Pep Services, Inc., also acted as the bargaining agent for the plaintiff employee, placing her with Crown Central Petroleum Corporation, pursuant to a supply contract. In these cases, the general employer was nothing more than the bargaining agent or employment agent for the plaintiffs. When those plaintiffs contacted Kelly Services, Manpower, or Pep Services, it was not for the purpose of entering into employment with those companies to do the work of those companies; rather, the plaintiffs intended for the general employers to "market" them to secure employment with another, special employer. Once those plaintiffs were presented by the employment services to the special employers, those plaintiffs then entered into *1055 a contract of hire with those special employers.
This case is distinguishable in that Hicks presented substantial evidence creating a genuine issue of material fact as to whether SLH acted as Hicks's employment agent or broker; Hicks presented evidence that his bargaining agent was his local union. He presented evidence that the union placed him for employment with SLH, where he entered into an employment relationship to perform the work of SLH, which included construction services for APCo. Hicks argues that it was not necessary for SLH to "lend" or "broker" Hicks to APCo; Hicks says he was part of SLH's work force that SLH utilized at the Miller Steam Plant job site. Hicks argues that once he secured employment with SLH, he did not expect or intend SLH to then transfer him to APCo's employ.
Hicks presented evidence to support these arguments. Hicks testified that he was never sent by his union to APCo for employment at the Miller Steam Plant. He stated that he "did not work at the Miller Steam Plant pursuant to any agreement between my union and [APCo] and, to my knowledge, there was no such agreement." Hicks presented evidence that his union assigned him to work with SLH. He was designated solely as an SLH employee on his "Employee's Withholding Exemption Certificates."
Hicks also presented evidence that the insurance carrier for SLH paid his workers' compensation benefits and provided medical benefits as a result of the injury. Hicks testified that his paychecks were from SLH and that he filed his workers' compensation claim through SLH. Hicks further testified:
"[APCo] did not offer me any benefit or compensation or reward in exchange for doing work for them. The only benefit or compensation that I received for doing work at the Miller Steam Plant [came] from [SLH] pursuant to the agreement that [SLH] had entered into with my [local] union."
The distinction between the type of primary employer in this case and that in the typical labor broker cases requires APCo to produce evidence that Hicks consented to a new employment relationship. Hicks presented substantial evidence creating a genuine issue of material fact as to whether SLH acted as his labor broker; therefore, as a matter of law, Hicks's consent may not be implied under the facts presented in this case.
Our review of cases from other jurisdictions confirms our analysis in this case. See Crawford v. Florida Steel Corp., 478 So. 2d 855, 859-60 (Fla.Dist.Ct.App.1985) (distinguishing between the proof required to show special employment where the general employer is a temporary labor broker agency and the proof required where it is an independent contractor who performs services; where the plaintiff is employed by the latter, consent must be demonstrated and not implied); Bourette v. Dresser Industries, Inc., 481 A.2d 170, 172-73 (Me.1984) (rejecting a control test for determining special employment and holding that, where the general employer is an independent contractor who performs services for the purported special employer, proof of the employee's consent to the new employment relationship is required even where the purported special employer controls the work of the plaintiff); Crain v. Webster Electric Cooperative, 568 S.W.2d 781, 791 (Mo.App.1978) (holding that consent to a special employment relationship "cannot be inferred merely from the fact that the employee obeyed the commands of his master in entering the services of another"; the employee's consent must be express, "informed and deliberate," to create an implied contract of hire with the alleged special employer); Rademaker v. Archer Daniels Midland Co., 310 Minn. 240, 247 N.W.2d 28, 32 (1976) (distinguishing between labor broker cases where the employee's consent to the special employment may be inferred and cases in which the primary employer is a contractor offering a service, where "there must be actual indicia of consent" to the new relationship rather than continued obedience to the primary employer); Loden v. Getty Oil Co., 316 A.2d 214, 218 (Del.Super.), aff'd, 326 A.2d 868 (Del.1974) (holding that, where the plaintiff was employed by an independent contractor who performed services for Getty, no implied contract of hire existed between the plaintiff and Getty, even though Getty *1056 presented evidence that it controlled numerous aspects of the plaintiff's work); Latham v. Technar, Inc., 390 F. Supp. 1031, 1039 (E.D.Tenn.1974) (holding that the plaintiff must have knowledge of, and must consent to, a special employment relationship; the mere fact that her activities may have been controlled by the new master is not sufficient to create a new relationship in the absence of an express or implied contract); Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So. 2d 858, 862 (1961) (holding that the employee must consent to become the employee of the purported special employer before a contract of hire may be implied); Selid Construction Co. v. Guarantee Ins. Co., 355 P.2d 389, 393 (Alaska 1960) (holding that consent of an employee to a change in employers cannot be implied merely from his obedience to the orders of his master to serve another).
Reviewing the evidence in a light most favorable to Hicks, the nonmovant, we conclude that there is a genuine issue of material fact, which must be resolved by the trier of fact, as to whether there was an implied contract of hire between APCo and Hicks and thus as to whether APCo is a special employer of Hicks. The summary judgment is therefore due to be reversed and the case remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur.
NOTES
[1] Hicks presented evidence that he filed his claim for worker's compensation benefits with SLH. He testified that he contacted SLH when he needed additional care and that SLH then told him which doctor to see. Although APCo presented evidence that it procured and paid for the workers' compensation insurance policy pursuant to which Hicks's benefits were paid, the policy was issued in the name of SLH, not APCo. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617295/ | 623 So. 2d 815 (1993)
TREND SOUTH, INC., a Florida corporation, d/b/a Sugar's, and Richard Glatzer, M.D., Petitioners,
v.
Niurys ANTOMARCHY, Respondent.
No. 93-944.
District Court of Appeal of Florida, Third District.
August 31, 1993.
Parenti, Falk, Waas & Frazier and Gail Leverett, Miami, for petitioners.
Brumer, Cohen, Logan, Kandell & Kaufman and Cynthia Barnett Hibnick, Miami, for respondent.
Before FERGUSON, JORGENSON and GODERICH, JJ.
*816 PER CURIAM.
The petitioners, Trend South, Inc., d/b/a Sugar's [Trend South] and Richard Glatzer, M.D., seek review by petition for writ of common law certiorari of the trial court's order requiring Dr. Glatzer, a nonparty, to provide respondent's counsel with authorizations to obtain 1099 forms for the past three years directly from the Internal Revenue Service.
The respondent, Niurys Antomarchy, issued a subpoena duces tecum for deposition directing Dr. Glatzer to produce, in part, information regarding independent medical examinations which Dr. Glatzer had performed and "all federal income tax forms 1099 provided to Richard Glatzer, M.D. from any and all law firms or insurance companies from January 1, 1991 to the present date." In response to the subpoena, Trend South filed a motion for protective order alleging that the production of the information would be burdensome and costly. Attached to the motion was Dr. Glatzer's affidavit stating that as a result of how records were kept in his office, he could only obtain such information by looking through each and every patient file in his office. Additionally, Dr. Glatzer outlined the "exorbitant" costs involved in producing this information. Dr. Glatzer stated that he "would be unwilling to spend the many months needed working on this at nights or on weekends." Dr. Glatzer further asserted that the 1099 forms were destroyed by Hurricane Andrew. Moreover, during oral argument it was asserted that in order to obtain the information requested in the subpoena, Dr. Glatzer would have to close his office for several months and that production of the information would cost approximately $100,000.00.
The trial court ordered Dr. Glatzer to provide the respondent's attorney with an authorization allowing him to obtain three years of Dr. Glatzer's 1099 forms directly from the Internal Revenue Service. This petition for writ of certiorari follows.
The parties are in agreement that information regarding income generated by a physician's performance of independent medical examinations for insurance companies and law firms is relevant and discoverable to prove potential bias. McAdoo v. Ogden, 573 So. 2d 1084 (Fla. 4th DCA 1991); Dollar General, Inc. v. Deangelis, 590 So. 2d 555 (Fla. 3d DCA 1991). Under the facts of this case, we find that the trial court did not depart from the essential requirements of law. The affidavit which Dr. Glatzer filed in support of Trend South's motion for protective order had the effect of admitting that the information which the respondent sought could not be obtained from discovery procedures provided for by the Florida Rules of Civil Procedure. Moreover, Dr. Glatzer's affidavit established that there is no less burdensome method for obtaining the relevant information since the 1099 forms were destroyed by Hurricane Andrew.
Accordingly, we deny the petition. However, we order that the 1099 forms be sent directly to the trial court for an in camera inspection since the parties have acknowledged that the 1099 forms may contain information which may not be relevant to the issue of how much Dr. Glatzer has been paid by insurance companies and law firms for independent medical examinations.
FERGUSON and GODERICH, JJ., concur.
JORGENSON, Judge, dissenting.
I respectfully dissent.
By this petition for certiorari, we confront today the extent to which an independent medical expert must reveal personal data regarding the character of his medical practice and personal financial details which implicate privacy interests, as well as the outer bounds of good taste.
Of late, the Florida appellate courts have confronted this issue by holding that such materials are relevant to the issue of bias and, if not unduly burdensome, are discoverable. See e.g., Abdel-Fattah v. Taub, 617 So. 2d 429 (Fla. 4th DCA 1993) (trial court ordered to determine reasonable cost for nonparty medical expert to compile information regarding defense-requested examinations done by him during past year); Bissell Bros., Inc. v. Fares, 611 So. 2d 620 (Fla. 2d DCA 1993) (Internal Revenue Service 1099 *817 forms of independent medical examiners subject to discovery as reasonably calculated to lead to relevant evidence concerning bias); Young v. Santos, 611 So. 2d 586 (Fla. 4th DCA 1993) (doctor ordered by trial court to produce copies of bills, checks, and payment records regarding medical exams done at request of insurance companies and law firms, as well as tax returns, for three-year period; doctor's overall income not discoverable and that other less intrusive means of discovering information should be explored first); Crandall v. Michaud, 603 So. 2d 637 (Fla. 4th DCA 1992) (independent medical examiner not required to provide patient reports prepared for defense law firms or insurance agencies over past two years; 1099 tax forms or records of payments from insurers or defense law firms would be easier to locate and more relevant to issue of bias); Wood v. Tallahassee Memorial Regional Medical Ctr., Inc., 593 So. 2d 1140 (Fla. 1st DCA) (trial court properly ordered independent medical examiners to produce for in camera inspection tax returns for previous five years to extent they reflected income from involvement in medical malpractice cases), rev. denied, 599 So. 2d 1281 (Fla. 1992); Dollar General, Inc. v. Deangelis, 590 So. 2d 555 (Fla. 3d DCA 1991) (1099 tax forms of defense medical expert discoverable if not unduly burdensome); McAdoo v. Ogden, 573 So. 2d 1084 (Fla. 4th DCA 1991) (same); State Farm Mutual Auto. Ins. Co. v. Gray, 546 So. 2d 36 (Fla. 3d DCA 1989) (same). Cf. Winn-Dixie Stores, Inc. v. Miles, 616 So. 2d 1108 (Fla. 5th DCA 1993) (party's treating physician who was not expert witness not required to reveal whether significant portion of his income was derived from plaintiff's attorneys absent threshold showing of bias).
Because there is no showing upon this record that the expert in question is venal as that term is defined in State ex rel. Lichtor v. Clark, 845 S.W.2d 55 (Mo. App.W.D. 1992), I would grant certiorari and remand for further development of the witness's alleged bias before requiring the production of personal financial information.
In my view, this can only be accomplished by deposing the medical expert as suggested by Judge Warner in her special concurrence in Young v. Santos, 611 So.2d at 587-588, and not by the technique employed in this case, which was to issue a subpoena duces tecum together with a notice of deposition which required, among other things, to furnish
(1) any and all reports made for any insurance company or any defense law firm as a result of any medical examination of any plaintiff in Dade County, Florida, from January 1, 1991, to the present date;
(2) any and all copies of bills to the individual, law firm, or insurance company paying for the examinations and reports from January 1, 1991, to the present date;
(3) any and all Federal income tax forms 1099 from any and all law firms or insurance companies from January 1, 1991, to the present date.
The import of the trial court's order requires Dr. Glatzer to sign a release authorizing the Internal Revenue Service to release his Federal 1099 forms and send them directly to the trial court for an in camera review. Although such a procedure will, to some extent, protect the doctor's privacy interests, it is certainly extraordinary and does not conform to the Florida Rules of Discovery as I understand them. In sum, I would not permit detailed discovery of personal financial data of a non-party witness unless and until that witness has been deposed and appears to be less than forthcoming with respect to the character of his practice and the approximate amount of money he derives from rendering expert opinions in cases of this nature. Indeed, the Florida Supreme Court has indirectly approved of such a procedure in Henry v. State, 574 So. 2d 66, 71 (Fla. 1991) (approving cross-examination of defense expert regarding character of his practice and percentage of cases where hired by public defender's office).
I would grant the petition for certiorari and deny discovery of personal financial details of a nonparty expert witness until after a proper deposition has been conducted and the witness has proved to be less than forthcoming. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617293/ | 190 S.W.3d 154 (2005)
Jared Lloyd SHANKLIN, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-03-00998-CR.
Court of Appeals of Texas, Houston (1st Dist.).
December 29, 2005.
*157 Brian W. Wice, Houston, for Appellant.
Charles A. Rosenthal, Jr., Dist. Atty. Harris County, and Donald W. Rogers, Jr., Asst. Dist. Atty., Houston, for Appellee.
Panel consists of Justices TAFT, KEYES, and HANKS.
OPINION
TIM TAFT, Justice.
A jury convicted appellant, Jared Lloyd Shanklin, of murder and assessed his punishment at 60 years in prison. We determine (1) whether appellant's defense counsel rendered ineffective assistance of counsel during the guilt-innocence and punishment stages of trial and (2) whether the trial court improperly admitted the trial prosecutor's affidavit at the hearing *158 on appellant's motion for new trial. We affirm the conviction, but reverse and remand the cause for a new punishment hearing.
Background
On November 18, 2002, appellant and his friends, John Shanklin and Darrell Willis, went to a night club. While in the nightclub, appellant and the complainant got into an altercation. When the night club closed, appellant and the complainant met outside and continued their argument. The altercation ended when appellant shot the complainant two times at close range, killing him. Shortly thereafter, police on the scene arrested appellant.
At trial, appellant raised the defenses of self-defense and defense of a third person. After the jury convicted him of murder, appellant filed a motion for new trial alleging ineffective assistance of counsel. The trial court conducted the motion for new trial hearing by affidavits. Appellant's defense counsel filed an affidavit stating that a number of his decisions provided ineffective assistance of counsel and were not the result of any reasoned trial strategy. The State filed a controverting affidavit executed by the trial prosecutor. At the end of the hearing, the trial court overruled appellant's motion for new trial.
Ineffective Assistance of Counsel at Trial
In his first point of error, appellant argues that his defense counsel rendered ineffective assistance of counsel during the guilt-innocence stage of trial. Specifically, appellant argues that the following actions demonstrate ineffective assistance: (1) defense counsel failed to request the lesser included offenses of manslaughter and aggravated assault; (2) defense counsel did not elicit testimony from appellant that appellant was not trying to kill anyone; and (3) defense counsel failed to properly object to the State's closing argument.
A. Standard of Review
Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05 (Vernon 1977). This right includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App.1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92, 104 S.Ct. at 2064-67; see also Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). Appellant has the burden of proving his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim.App.1998). We apply a strong presumption that trial counsel was competent. Thompson, 9 S.W.3d at 813. We presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). We analyze appellant's ineffective assistance of counsel issue as a challenge to the denial of his motion for new trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004) (holding appropriate standard of review for ineffective assistance claim based upon affidavits brought forth in motion for new trial is abuse of discretion). In such circumstances, we review the Strickland test through an abuse of discretion standard. Id. at 208. Thus, we reverse only if *159 the trial court's decision is arbitrary or unreasonable, viewing the evidence in the light most favorable to the ruling.
B. Lesser Included Offenses
1. Manslaughter
In his first sub-point of his first point of error, appellant argues that his defense counsel should have requested an instruction on the lesser included offense of manslaughter and that his failure to do so was ineffective assistance of counsel. He contends that defense counsel's affidavit demonstrates that his decision not to request the lesser offense was not the result of trial strategy.
To establish his claim that defense counsel's performance was deficient for failing to request an instruction on the lesser included offense of manslaughter, appellant must show that he was entitled to the instruction. Fuentes v. State, 991 S.W.2d 267, 272 (Tex.Crim.App.1999). A defendant is entitled to an instruction on a lesser included offense when the proof for the offense charged includes the proof necessary to establish the lesser included offense, and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim.App.1994) (citing Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993)). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall, 887 S.W.2d at 23.
A conviction for manslaughter requires a finding that the defendant recklessly caused the decedent's death. TEX. PEN.CODE ANN. § 19.04 (Vernon 2003). "A person acts recklessly, or is reckless, with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur." TEX. PEN. CODE ANN. § 6.03(c) (Vernon 2003). A manslaughter charge is required if there is any evidence from which a jury could conclude the defendant did not intentionally or knowingly kill an individual, but consciously disregarded a substantial and unjustifiable risk that the result would occur. Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim.App.1984). "[A] defendant may be shown to be guilty only of the lesser offense if the evidence presented is subject to different interpretations." Saunders v. State, 840 S.W.2d 390, 392 (Tex.Crim.App. 1992). Moreover, it is immaterial whether the evidence fits within the larger theme of the defendant's testimony, whether it was admitted by the State or the defense, and whether it is "strong or weak, unimpeached or contradicted." Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App.1998).
Neither of the parties disputes that manslaughter is a lesser included offense of murder. See Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App.2003). We thus determine if there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense of manslaughter. See Bignall, 887 S.W.2d at 23.
In Hernandez v. State, appellant testified that although he shot and killed the deceased, he did not intend to hit the deceased, but rather tried to scare him away. 742 S.W.2d 841, 842-43 (Tex.App.-Corpus Christi 1987, no pet.). The court of appeals held that this evidence was sufficient to warrant an instruction on manslaughter. Id. at 843.
The facts here are similar to those in Hernandez. Appellant testified that while a group of men were hitting his friend, he shot in the group's direction. He also stated, "I knew that I couldn't go over *160 there and physically fight with him. So I felt like that was the only thing I could do is shoot in that direction and scatter everything and just calm it down so I could give him the chance to get away from all of that." Appellant further stated that he shot while he was getting up from the ground and that he was not sure whether he shot high or low. He also admitted that he could have shot his friend because he was not sure of where he was aiming. Appellant was asked, "you weren't shooting at anybody, were you?" To which appellant responded, "No." He agreed that he was just shooting into the crowd blindly. After he shot, appellant did not realize that he had shot anyone.
In light of the testimony presented, we hold that there is some evidence that appellant acted recklessly and that the jury could have rationally found that appellant, if guilty, was guilty only of manslaughter. See Hernandez, 742 S.W.2d at 843. Construed in the light most favorable to appellant, the evidence presented shows that appellant did not intend to kill the complainant, but rather to scatter the group of men who were hitting his friend. Accordingly, we conclude that appellant was entitled to an instruction on the lesser included offense of manslaughter.
In addition to showing that he was entitled to the lesser included offense, however, appellant must show that his defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688-92, 104 S.Ct. at 2064-67. We presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson, 877 S.W.2d at 771.
At the motion for new trial hearing, appellant's defense counsel submitted an affidavit that stated that his failure to request the lesser included offense of manslaughter was not the result of any reasoned trial strategy. We have recently held that such an affidavit from defense counsel defeats the presumption that defense counsel was employing a reasonable trial strategy. See Biagas v. State, 177 S.W.3d 161, 170-71 (Tex.App.-Houston [1st Dist.]2005, pet. ref'd). Although defense counsel's affidavit rebuts the presumption that defense counsel had a reasonable strategy in choosing his course of action, appellant must still show that his defense counsel rendered a deficient performance. See Strickland, 466 U.S. at 688-92, 104 S.Ct. at 2064-67.
We cannot conclude that defense counsel acted deficiently in failing to request the lesser included offense of manslaughter. Although defense counsel stated that his failure to request this lesser included offense was not the result of trial strategy, his affidavit provides no explanation regarding why he chose not to ask for the lesser offense and no live testimony was presented on this issue. We assume a strategic motive if any can be imagined; and we find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. See Bone v. State, 77 S.W.3d 828, 833-34 n. 13 (Tex.Crim.App. 2002).
As the State points out, appellant's defense counsel may have decided not to ask for the lesser included offense because he did not want the jury to consider inconsistent defenses[1] defense of a third person *161 and manslaughter each of which requires a different mens rea. Self-defense and defense of a third person require an intentional or knowing intent; manslaughter requires reckless intent. See TEX. PEN. CODE ANN. §§ 9.31, 9.33, 19.04 (Vernon 2003). Here, the evidence raised the issues of self-defense and defense of a third person, and the jury received instructions on these defenses. By not asking for an instruction on the lesser included offense of manslaughter, the jury could convict appellant of murder, find that he acted in self-defense of himself or of a third party and acquit, or find him not guilty and acquit. This strategy is known as pursuing an all-or-nothing strategy. See Lynn v. State, 860 S.W.2d 599, 603 (Tex.App.-Corpus Christi 1993, pet. ref'd). Defense counsel does not act deficiently in failing to request a lesser included offense if he was pursuing an all-or-nothing trial strategy. See Ex Parte White, 160 S.W.3d 46, 55 (Tex.Crim.App.2004); Lynn, 860 S.W.2d at 603 (requiring a jury to opt between murder and acquittal, although risky, is sometimes successful). We therefore conclude that defense counsel's decision not to request the lesser included offense of manslaughter was not so outrageous that no competent attorney would have engaged in it. See Bone, 77 S.W.3d at 833-34 n. 13.
We also observe that there were good reasons for defense counsel to pursue an all-or-nothing strategy in this case, the most important of these is that the facts were more consistent with an intentional killing in defense of self and others. The record shows that the complainant was shot twice at close range; one bullet entered his head traveling slightly upward, and one bullet entered his abdomen traveling slightly downward. Thus, the shooting itself was more consistent with appellant intentionally shooting the complainant, rather than shooting blindly toward a crowd. Appellant told his brother, John, at the station shortly after the offense that he had shot the complainant in self-defense. Appellant told Officer Moreno that he felt he was defending Darrell Willis, a very sympathetic victim because of his disability. Thus, the record supports defense counsel's not having requested a lesser instruction for manslaughter.
Moreover, the trial court has "discretion to discount factual assertions in an affidavit by an interested party." Charles, 146 S.W.3d at 210. The trial judge may view defense counsel's affidavit with skepticism because it was not supported by any offer of live testimony, subject to cross-examination. See id. at 213. As an appellate court, we must defer to the trial court's ruling to the extent that any reasonable view of the record evidence supports the ruling. Id. at 212. Here, because the trial court could disbelieve defense counsel's affidavit, by finding that defense counsel was employing a reasoned trial strategy, we conclude that the trial court did not abuse its discretion in denying appellant's motion for new trial.
We overrule appellant's first sub-point of his first point of error.
2. Aggravated Assault
In his second sub-point of his first point of error, appellant argues that his defense counsel should have requested the lesser included offense of aggravated assault. At trial, there was no dispute that appellant caused the death of the complainant. A murder defendant is not entitled to an instruction on the lesser included offense of aggravated assault when the evidence showed him to be guilty of a murder. Forest v. State, 989 S.W.2d 365, 368 (Tex.Crim.App.1999). Because there *162 was no evidence from which a rational jury could conclude that appellant did other than cause the death of the complainant, appellant cannot satisfy the second, "guilty only," prong of the Royster test. See Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim.App.1981). Thus, appellant's defense counsel did not act deficiently in failing to request the lesser included offense of aggravated assault. See Jackson v. State, 992 S.W.2d 469, 474-75 (Tex.Crim.App. 1999). The trial court did not abuse its discretion in denying appellant's motion for new trial on this basis.
We overrule appellant's second sub-point of his first point of error.
C. Failure to Elicit Testimony
In his third sub-point of his first point of error, appellant argues that his defense counsel provided ineffective assistance by not eliciting testimony regarding appellant's lack of intent to kill. Appellant asserts that his defense counsel knew before trial that appellant did not intend to kill anyone when he fired his gun. Appellant maintains that if this key piece of evidence had been elicited, the testimony would have raised the lesser included offenses of manslaughter and aggravated assault. Appellant specifically contends that:
In the event this Court finds that Appellant's testimony did not raise the lesser offenses of manslaughter and/or murder [sic], [we] must find that defense counsel's failure to elicit from Appellant that he did not intend to kill anyone when he fired, having been put on notice of this fact in advance of trial, was objectively deficient conduct that was not, by his own admission, the result of any reasoned trial strategy.
Having concluded that appellant was not entitled to an instruction on aggravated assault and that defense counsel had a sound strategy for not requesting an instruction on manslaughter, it would have been inconsistent with appellant's defenses of self-defense and defense of a third party to present evidence that appellant did not intend to shoot the complainant. Therefore, defense counsel was not deficient for not eliciting such evidence.
We overrule appellant's third sub-point of his first point of error.
D. Improper Closing Argument
In his fourth sub-point of his first point of error, appellant argues that his defense counsel rendered ineffective assistance of counsel by failing to specifically object to the State's closing argument. Appellant asserts that the following closing argument by the State was improper:
State: Now, if you believe that he's getting beat up and his friends are getting beat up by all those people, you've got to figure out, could he retreat and was deadly force being used against him?
Still the answer is, no, there was no deadly force being used against him or Darrell.
Defense counsel: Judge, I would have to object again.
Court: Counsel, this is closing arguments. You're overruled.
Defense counsel: May I state my objection?
Court: Counsel, privately you can; but you're just making arguments before the jury and you've made your argument.
After the jury went to deliberate, appellant's defense counsel stated:
Defense Counsel: The objection was just that it was a misstatement of the law in that in protecting a third party, the defendant has no duty to retreat. And she said that he does. In protecting *163 a third party, the defendant does not have a duty to retreat. In fact, it's reversible error to even put it in the charge.
Court: So what are you asking me to do?
Defense Counsel: Well, I wanted to make the objection, then. I don't know what we can do now.
Court: Well, I mean, I don't know. I've heard your objection. What do you want me to do?
Defense Counsel: Well, it's in the record. That's all I can do.
Court: Okay. It's in the record.
Appellant asserts that the State's closing argument incorrectly stated the law of defense of a third person. See TEX. PEN.CODE ANN. § 9.33 (Vernon 2003). Appellant argues that he was prejudiced because defense counsel allowed the "prosecutor to denigrate the defensive theory that he did raise defense of a third person by failing to take prompt corrective action when she misstated the law impacting it."
Proper jury argument generally falls into one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) responsive arguments; and (4) pleas for law enforcement. See Coble v. State, 871 S.W.2d 192, 204 (Tex.Crim.App.1993). Jury argument exceeding these bounds constitutes error. Id.
The State does not contest that the prosecutor misstated the law as it relates to defense of a third person, but argues that any error was caused by the trial court and not by appellant's defense counsel. Nevertheless, we cannot conclude that the State misstated the law during closing argument. The statement made by the State listed one of the elements of self-defense. See TEX. PEN.CODE ANN. § 9.32 (Vernon 2003). The evidence raised the issue of self-defense, and the jury charge included an instruction on self-defense. The State was entitled to argue that appellant did not retreat in regard to self-defense. Although the prosecutor's argument combined self-defense and defense of a third party, the retreat portion was used only in application of the self-defense theory, "you've got to figure out, could he retreat and was deadly force being used against him." Accordingly, appellant has not shown that defense counsel acted deficiently.
We overrule appellant's fourth sub-point of his first point of error.
Ineffective Assistance At Punishment Stage
In his second point of error, appellant argues that his defense counsel provided ineffective assistance of counsel during the punishment stage of trial. Specifically, appellant argues that defense counsel failed to investigate 20 potential witnesses or to call them to testify during the punishment stage of trial.
At the motion for new trial hearing, appellant proffered 20 affidavits from witnesses who were willing to testify on his behalf. The affidavits were by appellant's mother, father, sister, brother, fiancee, counselor, aunt, and friends. Nearly all affidavits represented that the witnesses would have testified that they had known appellant for various lengths of time, they were never contacted by appellant's defense counsel, they would have testified had they been requested to, and they would have asked the jury to consider the minimum punishment. Most of the witnesses also stated that they were aware of appellant's previous record and that this knowledge would not have affected their testimony.
*164 Appellant's defense counsel also submitted an affidavit at the motion for new trial hearing. His affidavit stated that he "did not conduct any meaningful investigation as regards [to] the punishment stage of [appellant's] case." He further testified that he knew that appellant's mother, father, fiancee, and business partner were available to testify, but he neither interviewed them nor called any of them to testify. Although he does not articulate a reason for not interviewing or calling any witnesses to testify besides appellant, he concludes that his failure to conduct an investigation of the witnesses or call any of them to testify was not the result of any reasoned trial strategy.
Relying on Ortiz v. State, 866 S.W.2d 312, 315 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd), the State responds that defense counsel's choice of which witnesses to call is trial strategy. The State asserts that defense counsel's decision to call only appellant to testify was sound trial strategy because it focused the jury's attention on appellant's testimony. In Ortiz, the trial court conducted a non-jury punishment hearing in which the court had before it a pre-sentence investigation report containing many letters from friends and relatives attesting to appellant's good character. See id. at 315. The Fourteenth Court of Appeals found no ineffective assistance when defense counsel called only the appellant to testify at the punishment hearing. The facts in this case are clearly distinguishable from the facts in Ortiz. Here, punishment was assessed by a jury, and the jury did not have the benefit of a sentencing report containing any letters from appellant's friends and family.
The facts of this case are much more analogous to the facts in Milburn v. State, 15 S.W.3d 267 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). In Milburn, the motion for new trial hearing demonstrated that defense counsel decided not to interview or call any witnesses because of trial strategy namely, in his experience, juries do not place much weight on the testimony of family members. Id. at 270. The evidence showed that 20 witnesses were available to testify for appellant; defense counsel never interviewed them or asked them to testify; they would have testified if asked; and they would have asked the jury to consider a minimum sentence. These witnesses were also aware of appellant's probation and stated that their testimony would not have changed as a result. The court of appeals rejected defense counsel's reason as sound trial strategy and held that defense counsel's performance at the punishment phase fell below the professional norm of reasonableness. Id. at 271.
We agree with the State that the decision whether to present witnesses is largely a matter of trial strategy. See Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). Moreover, an attorney's decision not to present particular witnesses at the punishment stage may be a strategically sound decision if the attorney bases it on a determination that the testimony of the witnesses may be harmful, rather than helpful, to the defendant. See Weisinger v. State, 775 S.W.2d 424, 427 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd) (holding that it is trial counsel's prerogative, as a matter of trial strategy to decide which witnesses to call). However, a failure to uncover and present mitigating evidence cannot be justified as a tactical decision when defense counsel has not conducted a thorough investigation of the defendant's background. Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003); Rivera v. State, 123 S.W.3d 21, 31 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). The record here clearly shows that *165 defense counsel not only failed to call any other witnesses besides appellant, but also did not investigate punishment witnesses to determine whether they could provide meaningful testimony. We thus follow Wiggins, Rivera, and Milburn and agree that defense counsel's failure to investigate and call any punishment witnesses amounts to deficient performance. Accordingly, appellant has satisfied the first prong of Strickland.
We must now determine the prejudicial impact of defense counsel's deficient performance under the second prong of Strickland, specifically whether there is a reasonable probability that the jury's assessment of punishment in this case would have been less severe in the absence of defense counsel's deficient performance. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Rivera, 123 S.W.3d at 32.
During the punishment phase of trial, the State presented the testimony of Cassandra Sampson, the complainant's aunt. She explained how the complainant's death had devastated the family and testified that it was a very difficult time. She also testified that the complainant left three surviving children. The State then offered a stipulation of evidence concerning appellant's criminal history. After the State rested, defense counsel called appellant to testify. Appellant testified that he was sorry for what had happened and sorry to have put his family through this ordeal. Defense counsel called no other witnesses to testify on appellant's behalf. He did, however, introduce exhibit two, an order dismissing a former cause and terminating probation.
The State emphasized during closing argument that appellant should not receive probation because he had not abided by it before. The State did not suggest a specific amount of penitentiary time, but did argue that 25 to 35 years was not enough. Defense counsel then made a closing argument to the jury. In his closing argument, defense counsel emphasized that the jury could sentence appellant from 5 to 99 years or grant probation. He asked the jury to consider a punishment on the lower end of the range. The jury heard no favorable character evidence or otherwise mitigating evidence; it returned a sentence on the high end of the sentencing range and nearly twice as high as the number of years mentioned by the State. See Milburn, 15 S.W.3d at 270.
The sentencing process consists of weighing mitigating and aggravating factors, and making adjustments in the severity of the sentence consistent with this calculus. See Vela v. Estelle, 708 F.2d 954, 966 (5th Cir.1983). In this case, defense counsel presented no evidence of mitigating factors for the jury to balance against the aggravating factors presented by the State. By his own admission, defense counsel did not investigate any possible mitigating factors and failed to contact even a single family member or friend, despite knowing that favorable witnesses were available to testify. As noted in our discussion of the first prong of Strickland, there were no fewer than 20 witnesses available to testify on appellant's behalf. These witnesses would have testified that appellant took great care of his son, helped his friends and relatives, and worked hard. This evidence would have shown the jury that he also had good character traits.
We conclude that appellant has demonstrated prejudice in this case, even though we cannot say for certain that appellant's character witnesses would have favorably influenced the jury's assessment of punishment. See Milburn, 15 S.W.3d at 271. We have no doubt, however, that defense counsel's failure to interview or call a single witness, other than appellant, deprived him of the possibility of bringing out even *166 a single mitigating factor. See id. Mitigating evidence clearly would have been admissible. See Rivera, 123 S.W.3d at 30. The jury would have considered it and possibly have been influenced by it. See id.
We conclude that a reasonable probability exists that appellant's sentence would have been less severe had the jury balanced the aggravating and mitigating circumstances. Accordingly, appellant has shown that he was actually and substantially prejudiced by his defense counsel's complete failure to seek out and present any mitigating character evidence. See Milburn, 15 S.W.3d at 271; see, e.g., Blake v. Kemp, 758 F.2d 523, 534-35 (11th Cir. 1985); Ex parte Felton, 815 S.W.2d 733, 737 n. 4 (Tex.Crim.App.1991).
We sustain appellant's second point of error.
Admission of Evidence at Motion for New Trial Hearing
In his third point of error, appellant argues that the trial court improperly admitted evidence during the motion for new trial hearing. Specifically, appellant argues that the trial court erred when it admitted the prosecutor's affidavit. Appellant argues that, had the evidence not been admitted, the trial court would have granted the motion for new trial.
At the motion for new trial hearing, the State offered the trial prosecutor's affidavit.[2] Even before an objection had been lodged, the trial court admitted that it had read the affidavit. Appellant then asserted the following objection:
[U]nder Rules 401 and 402, certainly Ms. Hartman's affidavit is irrelevant in the sense that it makes no fact more or less likely as a consequence to this proceeding. She has no personal knowledge of any of the operative facts that impact the consideration of the issues before the Court today to the extent that she asserts that trial counsel is, quote, not candid, close quote, about his assertion.
The Court is well aware that in Schutz v. State, and 50 other cases, it is improper for one witness to give his or her opinion to the truthfulness of another witness' testimony. It is clearly speculative.
Her testimony as to Mr. Richardson's purported trial strategy is, again, without foundation. Certainly it makes no fact at issue more or less likely and doesn't even provide a nudge in that direction, which is the standard review for relevancy. I would object to it under those bases, Your Honor.
The trial court overruled appellant's objections.
The decision on a motion for new trial rests within the sound discretion of the trial court and, in the absence of an abuse of discretion, should not be reversed. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993). In considering a motion for new trial, the trial court possesses broad discretion in determining the credibility of the witnesses and in weighing the evidence to determine whether a different result would occur upon retrial. Dusenberry v. State, 915 S.W.2d 947, 949 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd); Messer v. State, 757 S.W.2d 820, 827 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd) (opinion on reh'g). The court may consider the interest and bias of any witness and is not required to accept as true the testimony of the accused *167 or any defense witness simply because it was uncontradicted. Messer, 757 S.W.2d at 828. The admission of evidence is a matter within the discretion of the trial court. See Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex.Crim.App.1990) (opinion on reh'g). Accordingly, the trial court's admission of evidence is reviewed under an abuse of discretion standard. See id. at 379-80. As long as the trial court's ruling was within the "zone of reasonable disagreement," there is no abuse of discretion and the trial court's ruling will be upheld. Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App.1996); Montgomery, 810 S.W.2d at 391. The trial court is not required to believe factual statements contained within an affidavit, even when they are uncontradicted by other affidavits. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000) (stating that a trial judge may disbelieve even uncontradicted testimony).
On appeal, appellant asserts that the trial court erred in admitting the prosecutor's affidavit under Rules 401, 402, 602, 701 and 702. See TEX.R. EVID. 401, 402, 602, 701, 702. To preserve a complaint for appellate review, appellant must provide a timely and specific objection. See TEX. R.APP. P. 33.1(a). Without a specific objection made to the trial court, nothing is preserved on appeal. See id. After reviewing appellant's objection during the motion for new trial hearing, we conclude that appellant has preserved only his Rule 401, 402, and 602 objections.
A. Rules 401 and 402
Evidence is relevant under Rule 401 if it "influences consequential facts, i.e., facts which have something to do with the ultimate determination of guilt or innocence in a particular case." Mayes v. State, 816 S.W.2d 79, 84 (Tex.Crim.App. 1991). Appellant did not expressly direct the trial court to the particular statement within the affidavit that he asserts was irrelevant on Rule 401 grounds. In the absence of any request to limit the scope of the affidavit we will uphold the trial court's ruling if any of the material in the affidavit is relevant. See TEX.R. EVID. 105(a).
The prosecutor pointed out that a possible sound trial strategy regarding lesser included offenses would have been not to ask for contradictory defenses. In this opinion, we have held that appellant's defense counsel was not deficient for failing to ask for jury instructions on the lesser included offense of manslaughter so as not to present inconsistent defenses to the jury. We conclude the affidavit has some relevance and thus admissible pursuant to Rule 402. See TEX.R. EVID. 402. Accordingly, the trial court did not abuse its discretion in overruling appellant's Rule 401 and 402 objections.
B. Rule 602
Appellant also argues that the affidavit violates Rule 602. See TEX.R. EVID. 602. Rule 602 provides,
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
TEX.R. EVID. 602.
Appellant contends that many of the prosecutor's statements in her affidavit were "rank speculation." Although some of the statements in the affidavit were undoubtedly made without personal knowledge, other statements comply with Rule 602. For example, the prosecutor informed the trial judge, who was not the *168 same judge who presided over appellant's trial, that defense counsel received instructions on self-defense and defense of a third party. The prosecutor also informed the trial judge that defense counsel did object to her closing argument, and in any event, the jury charge correctly explained the law to the jury. Because appellant did not specifically object to certain portions of the affidavit or attempt to excise that which did not comply with the rules, the entire affidavit is admissible if any portion of it is relevant. See Biagas, 177 S.W.3d at 173; see also Troff v. State, 882 S.W.2d 905, 910 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) ("When an exhibit contains both admissible and inadmissible evidence, the objecting party must specifically point out the inadmissible evidence."); Pinkney v. State, 848 S.W.2d 363, 367 (Tex.App.-Houston [1st Dist.] 1993, no pet.). We conclude that portions of the prosecutor's affidavit were made with personal knowledge, and therefore, the trial court did not abuse its discretion in overruling appellant's Rule 602 objection. We conclude that the trial court did not abuse its discretion in admitting the prosecutor's affidavit.
We overrule appellant's third point of error.
Conclusion
We affirm the judgment of the trial court, which finds appellant guilty of murder. Because we conclude that appellant's defense counsel provided ineffective assistance of counsel during the punishment phase of trial, we reverse the judgment of the trial court and remand the cause for a new punishment hearing pursuant to article 44.29(b) of the Texas Code of Criminal Procedure. See TEX.CODE CRIM. PROC. ANN. art. 44.29(b) (Vernon Supp.2005).
Justice KEYES, dissenting.
EVELYN V. KEYES, Justice, dissenting.
I respectfully dissent. I agree with the majority that appellant is entitled to a new hearing on punishment. However, I do not see how the jury could appropriately assess punishment without retrial of the merits, particularly when appellant's trial counsel took the strategically risky route of failing to seek an instruction on manslaughter, a lesser included offense supported by the record that has a much lower punishment range than murder. I find it impossible to say with any degree of certainty that the jury would have convicted appellant of murder, as opposed to manslaughter, and sentenced him to 60 years in prison when the jury was offered neither the opportunity to consider the lesser included offense nor any of the mitigating evidence available to the defense. I believe appellant's trial counsel's strategy, if any, was unreasonable as a matter of law at both the trial and the punishment stage.
In addition, I believe the trial court erred in admitting the prosecutor's affidavit as evidence of appellant's trial counsel's competence at the hearing on appellant's motion for new trial and that appellant carried his burden of proving his entitlement to a new trial at the hearing. Therefore, I would hold that appellant satisfied the Strickland test[1] with respect to the trial as a whole and that the trial court abused its discretion in failing to order a new trial on the basis of appellant's counsel's *169 ineffectiveness. I would reverse and remand for a new trial.
Ineffective Assistance
Lesser Included Offense of Manslaughter
Because appellant's trial counsel's requested instructions addressed only murder, defense of a third party, and self-defense, the jury could only have (1) convicted appellant of murder, (2) found that he acted in defense of himself or of a third party and acquitted him, or (3) found him not guilty and acquitted him. The jury could not have found him guilty of the lesser included offense of manslaughter or any other lesser included offense and assessed punishment commensurate with that offense. This strategy, as the majority points out, is known as an all-or-nothing strategy. See Lynn v. State, 860 S.W.2d 599, 603 (Tex.App.-Corpus Christi 1993, pet. ref'd). The majority, citing to Ex Parte White, 160 S.W.3d 46, 55 (Tex.Crim. App.2004), holds that "[d]efense counsel does not act deficiently in failing to request a lesser included offense if he was pursuing an all-or-nothing trial strategy." I disagree that Ex Parte White can be read so strongly.
I read Ex Parte White as holding that defense counsel does not act deficiently in failing to request a lesser included offense only if it is reasonable for him to pursue an all-or-nothing trial strategy under the circumstances of the case. See Ex Parte White, 160 S.W.3d at 55-56 (strategy was reasonable when trial counsel asserted that he discussed instructions on lesser-included offenses with defendant and deferred to defendant's decision not to request them); see also Lynn, 860 S.W.2d at 603 (all-or-nothing strategy, although risky, was not so unreasonable under facts of case as to deprive defendant of fair trial when focus of case was on absence of any evidence of intent). Requiring a jury to opt between murder and acquittal, although risky, is sometimes successful. Lynn, 860 S.W.2d at 603. Moreover, Texas law presumes that counsel's actions and decisions are reasonably professional and motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.App.1994). I challenge that presumption, however, by asking whether it was, in fact, reasonable for appellant's counsel not to request an instruction on the lesser included offense of manslaughter under the circumstances of this case.
I agree with the majority that, at the hearing on appellant's motion for new trial, the trial court could have disbelieved appellant's counsel's affidavit that he was not employing a reasoned strategy in failing to request an instruction on the lesser included offense of murder. Discounting the affidavit, the majority reasons that appellant's counsel could conceivably have had an all-or-nothing strategy and that such a strategy was reasonable under the circumstances of this case. I disagree. Even if appellant's counsel actually had an all-or-nothing strategy, as the majority concludes, there is additional evidence in the record that such a strategy was unreasonable.
A person commits murder if he "intentionally or knowingly" causes the death of an individual; an offense is a first degree felony punishable by five to 99 years in prison. TEX. PEN.CODE ANN. § 19.02, 12.32. A person commits manslaughter if he recklessly causes the death of an individual; an offense is a felony of the second degree, hence punishable by two to 20 years in prison. TEX. PEN.CODE ANN. §§ 19.02, 12.33. Self-defense and defense of a third person are complete defenses that, if found, justify the use of deadly force require acquittal. TEX. PEN.CODE ANN. §§ 2.03, 9.31, 9.32, 9.33.
*170 The jury was instructed that it could consider a punishment range of five to 99 years or life for the charge of murder or that it could acquit if it found that appellant used justifiable force in self-defense or in defense of a third person. Depending on the answers to these questions, appellant faced either acquittal or punishment ranging from 5 years to life in prison. If an instruction on manslaughter had been sought and the jury had convicted him of that offense, appellant would have faced a penalty of 2 to 20 years in prison. A charge of manslaughter thus would have offered the jury the opportunity to find that, although the deadly force he used was not justified, appellant did not knowingly and intentionally kill the complainant; thus, the jury could have found a lower level of culpability than murder and assessed a lower range of punishment commensurate with such culpability. There were sufficient facts to support such a finding.
The trial testimony establishes that appellant and the complainant, Michael Gaddis, were part of a group who had begun arguing in a club. As the club was closing and people were exiting the club into the parking lot, the group continued their argument, by shouting, pushing, and shoving, and a fight began. A full beer bottle was thrown at appellant and hit him in the leg. There was testimony from several witnesses that three people standing next to appellant's friend, Darrell Willis, including the complainant, Gaddis, jumped Willis and began beating him. Willis had had a stroke, was unable to speak articulately, and was weak on one side. Appellant testified that he shot into the group around Willis to stop the fight and to protect Willis, and Willis testified that he needed protection. There was testimony from Willis and appellant that appellant had taken the gun away from Willis shortly before this occurred.
There was also testimony that Gaddis's friends got him away from the fight and into a truck, but he continued arguing, got back out, and rushed towards appellant; that Gaddis and appellant exchanged more words; and that appellant shot him. There was also conflicting testimony from one witness that appellant got the gun from his truck and came back shooting at the crowd as Gaddis's friends tried to get him to let the argument go and leave.
Several shots were fired, and Gaddis was shot twice at close range, once at the side of the face and once in the abdomen. An officer who had been called to the scene testified that appellant told him Willis was unable to take care of himself because he had had a stroke and had less strength than the others in the crowd, that appellant was trying to protect him, and that he had taken Willis's gun from him earlier "because he didn't want Mr. Willis to do anything stupid is what he told me."
Unlike the defendant in Ex parte White, who rejected a lesser included offense instruction, appellant testified by affidavit at the motion for new trial hearing, "I told Mr. Richardson [appellant's trial counsel] from the very beginning that when I fired in the direction of the individuals whom I believed were assaulting Darrell Willis, I did not intend to kill anyone but to merely scare them and to get them to scatter." He further stated that he thought his counsel "was going to ask me what my intent was when I testified at trial but I now know that he did not" and that if he had known that his testimony entitled him to jury charges on the issues of aggravated assault or manslaughter, he would have asked his counsel "to make sure that the jury had these options instead of just murder or not guilty." Nor was the focus of the trial on the complete absence of intent, as in Lynn, but on appellant's act of shooting *171 in the direction of a group of men who were hitting his friend.
There was evidence from which the jury could have decided (1) that appellant did not intend to kill Gaddis, but fired recklessly into the quarreling group in the parking lot to scare him or the persons in the group around Willis and stop the fight, in which case it could have convicted him of manslaughter; or (2) that appellant fired intending to kill Gaddis to protect himself or Willis, in which case the jury could have acquitted him; or (3) that appellant intentionally and knowingly killed Gaddis, in which case the jury could have convicted him of murder, as it did. Appellant's counsel's failure to request an instruction on manslaughter deprived appellant of the opportunity to be convicted on a lesser charge that comported with the testimony of several witnesses, that was otherwise supported by the record, and that would have established a lesser degree of culpability and imported a lesser range of punishment than murder. Instead, under the charge given, the jury could only convict appellant of murder or acquit him. Thus, I would conclude that appellant's counsel's failure to request an instruction on the lesser included offense of manslaughter was unreasonable under the circumstances of this case.
The majority finds the all-or-nothing strategy it attributes to defense counsel to be reasonable because "the facts were more consistent with an intentional killing in defense of self and others." But the question is not whether this Court thinks that the facts were more consistent with an intentional killing than with a reckless killing, but whether the jury would. Appellant's counsel's acts and omissions denied his client the opportunity to have a jury determine whether the evidence better supported a manslaughter conviction than a murder conviction when either could have been supported by the facts and a manslaughter conviction would necessarily have resulted in a much lighter sentence than the 60-year prison sentence appellant received.
The only rational basis the majority can construct for appellant's counsel's not giving a manslaughter instruction is that it would have been inconsistent with the all-or-nothing strategy the Court attributes to defense counsel, both prongs of which required a finding of intentional killing. That, to my mind, is no reason not to request a manslaughter instruction, because the purpose of that instruction is to let the jury know that it can find a lesser mens rea than intentional killing and can decide on a lesser punishment. A strategy that abandons a lesser-included-offense theory and offers the jury a choice between murder and self-defense does not become reasonable because a reviewing court thinks the facts fit better with self-defense than with manslaughter or that manslaughter has a different men rea. The whole point of instructing the jury on manslaughter is to allow it to determine what it not this Court believes the defendant's state of mind to have been on the basis of the facts presented in evidence. That is the factual determination the jury should have been allowed to make here and was not, and it was a determination critical to the result of the trial.
Failure to Elicit Testimony
The majority opinion is not made stronger by its rejection of appellant's argument that his trial counsel provided ineffective assistance by not eliciting testimony regarding appellant's lack of intent to kill. The majority acknowledges appellant's assertion in his affidavit that his trial counsel knew before trial that he did not intend to kill anyone when he fired his gun, but it excuses trial counsel's failure to elicit this testimony at trial because it *172 would have been inconsistent with a self-defense theory. This is a boot-strap argument. If it was not reasonable for defense counsel to put all of appellant's eggs in one defensive basket, that strategy is not made more rational by lopping off facts that benefit appellant by supporting a theory of manslaughter on which he might have had better luck in order to maintain the consistency of a presumed all-or-nothing strategy.
The fact that defense counsel refused to elicit testimony regarding a fact critical to appellant's manslaughter defense his lack of knowing intent to kill does not support the view that appellant's representation was professionally reasonable and strategically sound. It supports the conclusion that appellant's counsel's strategy was unreasonable because he presented what can best be described as an extremely risky all-or-nothing case on behalf of his client, even though he knew critical facts that would offer his client a less risky alternative. Moreover, appellant's counsel himself had testified that he had no strategy at all. Even the risky strategy attributed to him is this Court's own construct.
Punishment
Finally, while I agree with the majority that appellant's trial counsel's performance was deficient at the punishment phase for the reasons the majority states, I find it impossible to say that a properly instructed jury would have convicted appellant of murder in the first place, much less sentenced him to 60 years in prison. And I can find no basis for determining that appellant's lengthy punishment was due merely to his counsel's ineffectiveness at the punishment stage rather than to his combined ineffectiveness at both the trial and punishment stages.
I believe appellant satisfied both prongs of the Strickland test he proved by a preponderance of the evidence that his counsel's representation fell below professional standards and that the result of the trial would have been different had he received reasonably effective assistance. See Strickland, 466 U.S. at 688-92, 104 S.Ct. at 2064-67; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999); Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim.App.1998). Therefore, I would sustain appellant's first and second points of error and would remand this case for a new trial as to both guilt and punishment.
Admission of Evidence at Motion for New Trial Hearing
I also disagree with the majority's opinion that the prosecutor's affidavit was properly admitted as evidence in opposition to appellant's motion for new trial. Nor do I agree that appellant failed to preserve his objections to that affidavit under Rules 701 and 702. I would hold that appellant preserved his objections to the affidavit under Rules 401, 402, 602, 701 and 702 and that the affidavit was inadmissible under all of those rules. Without the prosecutor's affidavit there was no evidence to support the trial court's denial of a new trial. I would hold that the trial court erred in admitting the affidavit, that appellant carried his burden of proving his entitlement to a new trial by a preponderance of the evidence, and that the trial court erred in denying appellant a new trial.
In her affidavit, the prosecutor opined, "I do not agree with the assertions of the defense lawyer in this case contained in the defense affidavit and I believe that he is not being candid with the court in his admissions to `alleged' ineffective assistance." She further opined,
"I believe that it was sound trial strategy on his part not to request the lesser offenses. Lee Richardson [appellant's trial counsel] did request and receive *173 charges of self-defense and defense of third party. It would have been viewed as contradictory to have asked the jury to find him not guilty and then state that if they find him guilty, they should find him guilty of the lesser offense only. After all, self-defense applies to all defensive theories so that would have been the better request (to the exclusion of the lesser)."
The prosecutor then asserted that appellant's counsel "did stand up and object to the specific unintentional mistake that I made" namely, that a third party has a duty to retreat. "However, the charge correctly explained the law to the jury." She excused defense counsel for not making a more specific objection in response to her own "mistake," opining that error was committed by the trial judge in precluding a more specific objection, but concluding, "since the correct wording was in the charge, no harm was done to either party." She then opined that it was "sound trial strategy to not have further objected because Lee Richardson did not want to draw attention to the issue in front of the jurors and the charge was correct on the issue."
Finally, the prosecutor offered her opinion that this "was a particularly bad case in that several people could have been hurt in addition to the death of the victim," and she speculated that, had appellant's witnesses been called at the punishment phase, "I would have impeached their testimony with his terrible criminal and probation record."[2] She summed up:
It is my opinion that this additional testimony on punishment would have been extremely detrimental to the defense and that is why Lee Richardson may not have called these witnesses. For instance, they all would have either testified that they did not know all these outrageous facts or if they knew about these facts, they were unable to assist him in altering his criminal ways. Either way, this testimony would have reflected poorly upon the defendant. Such evidence is rarely given much credibility by a jury and, in my experience, is often used against defendants. Lee Richardson knew of this information based on his research into the case and I believe that it was sound trial strategy for him to decide to not call these witnesses.
As the majority states, appellant asserted the following objection to the affidavit:
[U]nder Rules 401 and 402, certainly Ms. Hartman's affidavit is irrelevant in the sense that it makes no fact more or less likely as a consequence to this proceeding. She has no personal knowledge of any of the operative facts that impact the consideration of the issues before the Court today to the extent that she asserts that trial counsel is, quote, not candid, close quote, about his assertion.
The Court is well aware that in Schutz v. State, and 50 other cases, it is improper for one witness to give his or her opinion to the truthfulness of another *174 witness' testimony. It is clearly speculative.
Her testimony as to Mr. Richardson's purported trial strategy is, again, without foundation. Certainly it makes no fact at issue more or less likely and doesn't even provide a nudge in that direction, which is the standard review for relevancy. I would object to it under those bases, Your Honor.
The trial court overruled appellant's objections.
The majority holds that appellant preserved his objections under rules 401, 402, and 602, but not under rules 701 and 702. "The purpose of an objection is two-fold: (1) to notify the trial judge and the State of the complaint . . .; and (2) to preserve a complaint for appellate review." Ex parte Little, 887 S.W.2d 62, 65 (Tex.Crim.App. 1994) (citations omitted). An objection may be phrased in any manner that sufficiently apprises the judge and opposing counsel of the nature of the complaint; no particular form is required. Id. I would hold that appellant's objection was sufficient to apprise the judge of his complaints under Rules 701 and 702, as well as under rules 401, 402, and 602.
Rules 401 and 402 permit the admission of evidence only if it is relevant, i.e., if it tends to make the existence of a fact consequential to the determination of the action more or less probable than it would be without the evidence. TEX.R. EVID. 401, 402. Rule 602 prohibits a witness from testifying about a matter of which the witness has no personal knowledge.[3] Rule 701 prohibits opinion testimony by a lay witness unless it is rationally based on the witness's own perception or helpful to understanding the witness's own testimony or to determining a fact in issue. TEX.R. EVID. 701. Rule 702 permits testimony by expert witnesses, but only if they are qualified "by knowledge, skill, experience, training, or education" to testify in the form of an opinion or otherwise. TEX.R. EVID. 702. Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App.1997), and its progeny, cited by appellant's counsel in his objection to the admission of the prosecutor's affidavit, are the leading cases on the improper admission of expert testimony under rules 602, 701, and 702. Therefore, I would conclude that appellant's objection was sufficient to notify the trial judge and the State of his complaints under Rules 401, 602, 701, and 702 and to preserve those complaints for appellate review.
I agree with appellant that the prosecutor's affidavit should have been excluded from evidence under all of the foregoing rules. Virtually all of the prosecutor's affidavit testimony consisted of her speculation and lay and expert opinion as to her opponent's knowledge, strategy, and credibility, the behavior of juries, and the prosecution of the trial under different factual circumstances, and her legal opinion as to the trial court's rulings, the court's charge, and the ultimate legal question of her opponent's effectiveness. As the Court of Criminal Appeals stated in Charles, "Statements in affidavits of interested witnesses concerning their own state of mind are `uncontrovertible' because `the mental workings of an individual's mind are matters about which adversaries have no knowledge or ready means of confirming *175 or controverting." 146 S.W.3d at 210 (emphasis added). How much less controvertible, therefore, is a self-interested prosecutor's testimony about the workings of her opponent's mind matters as to which a fortiori he or she can "have no knowledge or ready means of confirming or controverting"? See Charles, 146 S.W.3d at 210.[4] Rule 602 expressly prohibits a fact witness from testifying about a matter of which he has no personal knowledge. Thus, I would conclude that the prosecutor's affidavit was inadmissible under Rule 602.
Likewise, Rule 701 prohibits opinion testimony by a lay witness that is not rationally based on the witness's own perception or helpful to understand the witness's own testimony or to determine a fact in issue. TEX.R. CIV. P. 701. The prosecutor's affidavit purports to testify to matters necessarily outside her own perception and purportedly helpful only to understand her opponent's testimony and to determine legal issues left to the determination of the court. Thus, I would conclude that the trial court erred in admitting the prosecutor's affidavit over appellant's objection under Rule 701.
In addition, the prosecutor's affidavit is replete with speculative references, not only as to the workings of defense counsel's mind and strategy, but also as to what would have happened had her opponent represented his client differently, e.g., had he conducted the investigation of 20 witnesses that he attested he did not conduct and had he called those witnesses to testify in mitigation of appellant's punishment: "For instance, they all would have either testified that they did not know all these outrageous facts or if they knew about these facts, they were unable to assist him in altering his criminal ways." The prosecutor could not have had any factual basis for these assertions. I would, therefore, conclude that her affidavit is inadmissible under Rule 602 in this regard as well. Moreover, because such speculation has no tendency to make any relevant fact more or less probative, it is inadmissible under Rule 401. See Mayes v. State, 816 S.W.2d 79, 84 (Tex.Crim.App.1991) (evidence is relevant under Rule 401 if it "influences consequential facts, i.e., facts which have something to do with the ultimate determination of guilt or innocence in a particular case").
Nor was the prosecutor's affidavit admissible as expert testimony under Rule 702. The threshold determination in admitting expert testimony is whether that testimony will help the trier of fact understand the evidence or determine a fact in issue. Schutz, 957 S.W.2d at 59; Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App. 1992); Perkins v. State, 902 S.W.2d 88, 93 (Tex.App.-El Paso 1995, pet. ref'd). The use of such testimony must be limited to those situations when the expert's knowledge and experience are superior to those of the average juror. Yount v. State, 872 S.W.2d 706, 710 (Tex.Crim.App.1993); Perkins, 902 S.W.2d at 93.
In Yount, the Court of Criminal Appeals, analyzing the admissibility of expert testimony on child behavior under Rule 702 in an aggravated sexual assault case, stated that "the threshold determination for admitting expert testimony is whether such testimony `if believed, will assist the untrained layman trier of fact to understand the evidence or determine a fact in issue.'" 872 S.W.2d at 708 (quoting Duckett v. State, 797 S.W.2d 906, 908 (Tex.Crim. App.1990)). The court "cautioned that expert testimony which assists the jury in *176 determining an ultimate fact is admissible, but expert testimony which decides an ultimate fact for the jury, such as `a direct opinion on the truthfulness of the child,' crosses the line and is not admissible under Rule 702." Id. (citing Duckett, 797 S.W.2d at 914, 918-19).
"[E]xpert testimony must aid not supplant the jury's decision." Schutz, 957 S.W.2d at 59; Perkins, 902 S.W.2d at 93. Thus, "direct testimony as to a witnesses' credibility is inadmissible under Rule 702 because it does not concern a subject upon which the testimony of an expert would assist the trier of fact." Yount, 872 S.W.2d at 709 (emphasis in original); Perkins, 902 S.W.2d at 93. Such evidence does more than assist the trier of fact to understand the evidence or determine a fact in issue; it impermissibly decides an issue for the trier of fact. Yount, 872 S.W.2d at 709; see also Schutz, 957 S.W.2d at 59; Perkins, 902 S.W.2d at 93. Nor is a witness's opinion admissible to interpret the meaning of the acts, conduct, or language of another. See Rodriguez v. State, 903 S.W.2d 405, 410 (Tex.App.-Texarkana 1995, pet. ref'd).
The prosecutor's affidavit testimony was not designed to assist an untrained layman to understand the evidence or to determine facts in issue. Nor did it help the visiting trial judge understand the evidence or determine any fact as to appellant's counsel's effectiveness. Rather, the expert opinion testimony offered went entirely to the legal conclusions to be drawn by the court as guided by the prosecutor a witness who had an interest in the outcome of the hearing, who was not qualified at trial or in her affidavit as an expert witness on the law, who had no personal knowledge of defense counsel's mental workings or strategy or the possible testimony of witnesses who were not interviewed or called, and who was in no better position than the trial judge even the visiting trial judge who conducted the motion for new trial hearing to assess whether or not defense counsel's representation of his client met professional standards of representation.
Not only did the prosecutor's affidavit not assist the trier of fact, it directly supplanted both the role of the trier of fact in assessing the ultimate fact issue of defense counsel's strategy and the role of the judge himself in determining the ultimate legal issue of the effectiveness of appellant's representation, based on the prosecutor's asserted legal expertise. It was, in fact, nothing more than the legal opinion of counsel presented as evidence. Trial courts may not consider the legal conclusions of witnesses on ultimate questions of law as competent evidence; such questions are matters to be decided by the courts themselves on the basis of the facts presented in the evidence. See Fort Worth Neuropsychiatric Hosp., Inc. v. Bee Jay Corp., 600 S.W.2d 763, 765 n. 4 (Tex.1980).
I would hold that the prosecutor's affidavit was inadmissible under Rule 702 as well as under Rules 602, 401, and 701.[5]*177 Indeed, I think the majority sets a dangerous precedent by allowing a conflicted prosecutor in a criminal proceeding with a personal interest in sustaining a conviction she has obtained on behalf of her client, the State, to turn around and appear both as a fact witness and as an expert witness against the defendant in sustaining that conviction. I think this practice implicates fundamental due process concerns, and I would not lend the gloss of legality to it.
Because appellant presented evidence at the motion for new trial hearing from which the trial court could reasonably have concluded (1) that his counsel's representation at trial fell below an objective standard of reasonableness and (2) that the result of the proceeding would have been different but for his counsel's deficient performance, and because the State presented no admissible countervailing evidence at that hearing, I would hold that appellant established his right to a new trial by a preponderance of the evidence at that hearing. Accordingly, the trial judge's denial of a new trial was not "supported by any reasonable view of the record evidence" and was an abuse of discretion. See Charles, 146 S.W.3d at 210.
I would sustain appellant's third point of error.
Conclusion
I would conclude that appellant's defense counsel provided ineffective assistance of counsel during both the guilt-innocence and punishment phases of appellant's trial and that the trial judge abused his discretion in denying appellant's motion for new trial. I would, therefore, reverse the judgment of the trial court and remand the cause for a new trial.
NOTES
[1] It is permissible for the accused to have the jury decide between inconsistent defensive theories, even when they might directly contradict one another. Warren v. State, 565 S.W.2d 931, 933 (Tex.Crim.App.1978). Nevertheless, it may not be sound strategy to present inconsistent defenses.
[2] At a motion for new trial hearing, the court may receive evidence by affidavit or otherwise. See TEX.R.APP. P. 21.7. Also, the State may oppose in writing any reason the defendant sets forth in the motion for new trial. TEX.R.APP. P. 21.5.
[1] See Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984) (establishing two-part test for ineffective assistance of counsel: (1) trial counsel's representation fell below objective standard of reasonableness, based on prevailing professional norms; and (2) result of proceeding would have been different but for counsel's deficient performance).
[2] Appellant's criminal record was stipulated to at the punishment phase. It included no felonies, nor were any enhancement paragraphs included in the court's charge on the assessment of punishment. Rather, the charge instructed the jurors that appellant had filed a sworn motion for community supervision alleging that he had never been convicted of a felony in Texas or any other State. The prosecutor attached no evidence to her affidavit in opposition to a new trial to substantiate her claims that appellant had a "terrible criminal and probation record" with which she could have impeached appellant's witnesses or her claims that these witnesses "all would have either testified that they did not know all these outrageous facts or if they knew about these facts, they were unable to assist him in altering his criminal ways."
[3] Rule 602 provides,
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
TEX.R. EVID. 602.
[4] This is particularly true when, as here, both the trial court and this Court have refused to give any credence to appellant's counsel's own affidavit.
[5] A panel of this Court has recently held a trial prosecutor's affidavit admissible to refute a criminal defense counsel's affidavit as to his own ineffective assistance. Biagas v. State, 177 S.W.3d 161 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). The appellant had argued that the affidavit was inadmissible under Texas Disciplinary Rule of Professional Conduct 3.08(a), which prohibits a lawyer from continuing employment in an adjudicatory proceeding if the lawyer knows or believes he may be a witness necessary to establish an essential fact on behalf of his client. Id. at 172. The panel observed that "the prosecutor's affidavit here was offered for the purpose of demonstrating that Biagas's trial counsel was neither deficient nor prejudicial, and did not relate to an issue in the trial." Id. at 173. It reasoned, "The trial judge has firsthand knowledge of the matter in issue, and thus, is less dependent on the adversary process to test the credibility of the testimony." Id. Thus, it reasoned that the affidavit was admissible under an exception to Rule 3.08, which permits a lawyer to testify if "the testimony relates to the nature and value of legal services rendered in the case." Id. (quoting TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08(a)(3), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 1998) (TEX. STATE BAR R. Art. X, § 9)). The panel also held that, because the affidavit recited some relevant facts, and because "Biagas did not expressly direct the trial court to the particular statement within the affidavit that he asserts was irrelevant on Rule 401 or Rule 403 grounds," the affidavit was not inadmissible under those rules. Id. at 173-74. Here, the objections and the facts are different, and the rationale of Biagas does not apply. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3042942/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3823
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Terron Brown, also known *
as T-Rex, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: August 24, 2007
Filed: August 27, 2007
___________
Before WOLLMAN, COLLOTON and BENTON, Circuit Judges.
___________
PER CURIAM.
Terron Brown appeals the sentence of 292 months’ imprisonment imposed by
the district court1 following his conviction for conspiracy to distribute more than 1.5
kilograms of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii)
and 846. This court has vacated Brown’s sentence and remanded for resentencing on
two prior occasions. See United States v. Brown, 453 F.3d 1024, 1026-27 (8th Cir.
2006); United States v. Brown, 414 F.3d 976 (8th Cir. 2005). On this appeal, Brown
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
argues that the district court improperly applied a presumption of reasonableness to
the advisory guidelines range and failed to exercise its discretion in determining the
sentence. After careful review, we conclude that the district court properly recognized
its responsibilities under United States v. Booker, 543 U.S. 220 (2005), and its
discretion under 18 U.S.C. § 3553(a). We do apply a presumption of reasonableness
on appeal to a sentence within the guideline range, see Rita v. United States, 127 S.
Ct. 2456, 2462-65 (2007); United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.), cert.
denied, 546 U.S. 1081 (2005), and we conclude that Brown’s sentence is not
unreasonable.
Brown also argues that this court improperly requires district courts to offer an
“appropriate justification” by reference to § 3553(a) to support a variance from the
guidelines range. The Supreme Court has granted certiorari in a case that presents a
related question, see Gall v. United States, 127 S. Ct. 2933 (2007), but the requirement
of an “appropriate justification” for a variance remains the law of this circuit. See
United States v. Gonzalez-Alvarado, 477 F.3d 648, 650 (8th Cir. 2007). We decline
to address Brown’s pro se supplemental filing, see United States v. Dierling, 131 F.3d
722, 734 n.7 (8th Cir. 1997), and deny his request for relief.
Accordingly, the judgment is affirmed.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1616959/ | 623 So. 2d 525 (1993)
Andre KAAS and Barbara Kaas, Appellants,
v.
ATLAS CHEMICAL COMPANY, etc., Appellee.
No. 92-2337.
District Court of Appeal of Florida, Third District.
June 22, 1993.
Rehearing Denied October 5, 1993.
Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel and Arthur J. England, Jr. and Elliot J. Scherker, for appellants.
Rebecca W. Ribler; Elizabeth Koebel Russo; Sheila W. Moylan, for appellee.
Before SCHWARTZ, C.J., and COPE and GERSTEN, JJ.
SCHWARTZ, Chief Judge.
After a jury verdict for the plaintiffs in a personal injury action, the trial court granted the defendant's motion for a new trial on all issues on the following basis:
During closing argument, counsel made the following statements to the jury: "It's so ridiculous (sic) and I can prove that that guy is a liar on this issue because, ladies and gentlemen of the jury, take a look at this." (Page 622 trial transcript). "Now, here's how I am going to prove to you that he was a liar." (Page 623 trial transcript). "That's a lie. Dr. Mackler showed you an anatomy book." (Page 624 trial transcript referring to testimony of Dr. Suarez). "The only defense witness on Andre Kass' impotency was Dr. Suarez who does hate me and who I did call a liar *526 and who I will take some more time with you to show that he really is a liar because I mean, the guy flip flops in a deposition from July 7th to July 22, 1992." (Page 665 trial transcript). "I feel that two to three nights thing was phony. I think he is a liar." (Page 671 trial transcript.)
Counsel's feelings and beliefs concerning the credibility of a witness are neither relevant nor permitted. Additionally, it is fundamentally incorrect for counsel to attempt to impugn the integrity of a witness by calling him a liar.
In Hernandez v. State [156 Fla. 356], 22 So. 2d 781 (Fla. 1945), the Florida Supreme Court held that it was improper for an attorney to suggest to a jury that a witness was committing perjury.
In Moore v. Taylor Concrete & Supply Co., Inc., 553 So. 2d 787 (Fla. 1st DCA 1989), the Court stated, "It is axiomatic that a lawyer's expression of his personal opinion as to the credibility of a witness, or of his personal knowledge of facts in the case, is fundamentally improper ... [E]xpressions by a lawyer of his personal opinion are in derogation of the Code of Professional Responsibility and will not be condoned." Importantly, such impropriety does not require a contemporaneous objection. Stokes v. Wet 'N Wild, Inc., 523 So. 2d 181 (Fla. 5th DCA 1988); Moore, supra., p. 793; Kendall Skating Centers, Inc. v. Martin, 448 So. 2d 1137 (Fla. 3d DCA 1984).
There is no question but that counsel is permitted to demonstrate inconsistencies between witnesses' testimony and within a witness's own testimony. But lines have been drawn as to what constitutes proper comment and what is egregious. The statements in the instant case were egregious. For this reason, defendant's motion for a new trial must be granted.
We entirely agree with this order.
On appeal, the plaintiffs make no real defense of their trial counsel's remarks. It would be impossible fairly to do so.[1] See Rule 4-3.4, Rules of Professional Conduct; Venning v. Roe, 616 So. 2d 604, 605 (Fla. 2d DCA 1993) ("We believe the improper comments made by defense counsel essentially accuse the medical expert of perjury and accuse opposing counsel of unethically committing a fraud upon the court. Such comments have not been condoned by other district courts and will not be condoned by this court."); Schubert v. Allstate Ins. Co., 603 So. 2d 554 (Fla. 5th DCA 1992), review dismissed, 606 So. 2d 1164 (Fla. 1992); Moore v. Taylor Concrete & Supply Co., 553 So. 2d 787 (Fla. 1st DCA 1989); Carnival Cruise Lines, Inc. v. Rosania, 546 So. 2d 736 (Fla. 3d DCA 1989); Schreier v. Parker, 415 So. 2d 794 (Fla. 3d DCA 1982); Hillson v. Deeson, 383 So. 2d 732 (Fla. 3d DCA 1980).
Instead, they claim that reversal is required because defense counsel did not object during the trial. This contention is incorrect. As we have repeatedly held, arguments like these fall squarely within that category of fundamental error requiring no preservation below in which the basic right to a fair and legitimate trial has been fatally compromised. See Bloch v. Addis, 493 So. 2d 539 (Fla. 3d DCA 1986); Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985), review denied, 488 So. 2d 832 (Fla. 1986); Maercks v. Birchansky, 549 So. 2d 199 (Fla. 3d DCA 1989); Schreier, 415 So.2d at 795 (Such arguments "will not be condoned in this court, nor should they be condoned by the trial court, even absent objection." [e.o.]). Even were the issue presented on a defense appeal from a plaintiffs' verdict and judgment, we would likely not "supinely" approve the result of a proceeding which was not, in any meaningful sense, a trial at all but a thoroughly unseemly name-calling contest, reflecting a personal vendetta between a lawyer and an expert witness, in which the jury was essentially asked to choose between the combatants. See Borden, 479 So.2d at 851-52 ("We demean ourselves and the system of justice we serve when we permit this to occur."). We surely cannot hold that the trial court abused *527 its broad discretion in granting the required new trial itself. See Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959).
Affirmed.
NOTES
[1] In addition to the statements quoted by the trial court, the record includes one as to which there was no evidence that Dr. Suarez "hates my guts." See Bloch v. Addis, 493 So. 2d 539 (Fla. 3d DCA 1986); Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985), review denied, 488 So. 2d 832 (Fla. 1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616974/ | 190 S.W.3d 838 (2006)
Columbus Earl JOHNSON, Appellant,
v.
The STATE of Texas, State.
No. 2-04-419-CR.
Court of Appeals of Texas, Fort Worth.
March 30, 2006.
Donald S. Gandy, Fort Worth, for Appellant.
*839 Tim Curry, Criminal District Atty., Charles M. Mallin, Chief, Appellate Division, Danielle A. Legault, Robert Foran and Amy Collum, Asst. Dist. Attys. for Tarrant County, Fort Worth, for Appellee.
Panel A: DAUPHINOT, GARDNER, and McCOY, JJ.
OPINION
ANNE GARDNER, Justice.
I. INTRODUCTION
Appellant Columbus Earl Johnson appeals his sentence of twenty-seven years' confinement for aggravated sexual assault of a child under fourteen years of age. In his sole point, Appellant contends that the trial court erred in admitting an audiotape recording into evidence because the State's notice of intent to introduce such evidence was not timely filed pursuant to Texas Rule of Evidence 404(b) and Texas Code of Criminal Procedure article 38.37. We affirm.
II. BACKGROUND
On May 24, 2003, Gloria Nelson and her two young children, daughter A.N. and son K.S.N., went to Gloria's older daughter Jamila's home to visit. Appellant, Gloria's nephew, was living at Jamila's home at the time. Late that evening, Gloria decided to go home but allowed A.N. and K.S.N. to spend the night at Jamila's house with her children. Jamila had also gone out for the evening, leaving Appellant alone with the children.
A.N., who was ten years old at the time of trial, testified that during the night she and Appellant were watching television when he kissed her on the arm and then inserted his finger into her vagina. A.N. tried to call her mother after the incident but was only able to reach her answering machine. The next morning, Gloria picked up A.N. from Jamila's house and took her to the flea market where she worked. Gloria testified that A.N. appeared listless and unusually quiet. When she asked A.N. if she was okay, A.N. told her mother what Appellant had done.
A jury convicted Appellant of aggravated sexual assault of a child and assessed his punishment at twenty-seven years' confinement. The trial judge entered judgment accordingly. Appellant filed this appeal.
III. STANDARD OF REVIEW
In determining whether a trial court erred in admitting evidence, the standard for review is abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App.2005). Thus, as long as the trial court's ruling was at least within the zone within which reasonable persons might disagree, the appellate court will not intercede. See id.; Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh'g). Moreover, a trial court's decision regarding admissibility of evidence will be sustained if correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.App.1990).
IV. ANALYSIS
As previously stated, Appellant contends in his sole point that the trial court erred in admitting an audiotape recording into evidence because the State's notice of intent to introduce such evidence was not timely filed pursuant to Texas Rule of Evidence 404(b) and Texas Code of Criminal Procedure article 38.37. The *840 State responds that "[n]othing in the recording proves, alleges, or even insinuates any additional act of misconduct committed by Appellant."
Texas Rule of Evidence 404(b)[1] and Texas Code of Criminal Procedure article 38.37[2] only apply when the State intends to introduce evidence of other crimes, wrongs, or acts (extraneous offenses). See TEX.CODE CRIM. PROC. ANN. art. 38.37; TEX.R. EVID. 404(b); see also Castillo v. State, 59 S.W.3d 357, 361-62 (Tex.App.-Dallas 2001, pet. ref'd) (stating that because testimony was not about any extraneous act, wrong, or crime, rule 404(b) was not implicated). An extraneous offense is defined as any act of misconduct, whether prosecuted or not, that is not shown in the charging papers. Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim. App.2003); Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App.1996). To constitute an extraneous offense, the evidence must show a crime or bad act, and that the defendant was connected to it. Lockhart v. State, 847 S.W.2d 568, 573 (Tex.Crim. App.1992), cert. denied, 510 U.S. 849, 114 S. Ct. 146, 126 L. Ed. 2d 108 (1993); see TEX.CODE CRIM. PROC. ANN. art. 38.37; TEX.R. EVID. 404(b).
Here, the audiotape recording is of the message left by A.N. for her mother on the night of the alleged assault. We have listened to the audiotape, on which A.N. can be heard crying while in the background Appellant can be heard talking to her. However, what Appellant actually says to A.N. is virtually incomprehensible to us. And even though, as previously stated, the recording is of the message left by A.N. for her mother on the night of the alleged assault, A.N. does not say anything to her mother in the message. Consequently, we are unable to identify any evidence of an extraneous offense or bad act on the audiotape. Furthermore, Appellant states in his brief that "[t]he recording depicts the victim as crying with the Appellant being heard in the background trying to console the victim and telling her to go back to bed." This clearly does not constitute any evidence of an extraneous offense or bad act. Therefore, we hold that the State was not required to give notice concerning the evidence. See TEX.CODE CRIM. PROC. ANN. art. 38.37; TEX.R. EVID. 404(b); see also Castillo, 59 S.W.3d at 361-62. And the trial judge did not err in admitting the recording into evidence. We overrule Appellant's sole point.
*841 V. CONCLUSION
Having overruled Appellant's sole point, we affirm the trial court's judgment.
NOTES
[1] Texas Rule of Evidence 404(b) states:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.
TEX.R. EVID. 404(b).
[2] Texas Code of Criminal Procedure article 38.37 provides:
Sec. 2. Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters. . . .
Sec. 3. On timely request by the defendant, the state shall give the defendant notice of the state's intent to introduce in the case in chief evidence described by Section 2 in the same manner as the state is required to give notice under Rule 404(b), Texas Rules of Evidence.
TEX.CODE CRIM. PROC. ANN. art. 38.37 (Vernon Supp.2005). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616983/ | 190 S.W.3d 108 (2005)
HTS SERVICES, INC., Appellant,
v.
HALLWOOD REALTY PARTNERS, L.P., Appellee.
No. 01-04-01216-CV.
Court of Appeals of Texas, Houston (1st Dist.).
December 8, 2005.
*109 Robert Glen Moll, Houston, TX, for appellant.
Drew Randolph Heard, Jenkens & Gilchrist, PC, Dallas, TX, for appellee.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
OPINION
JANE BLAND, Justice.
After a bench trial in this post-judgment garnishment proceeding, the trial court rendered judgment in favor of appellee, Hallwood Realty Partners, L.P. ("Hallwood"). Appellant, HTS Services, Inc. ("HTS"), contends that the trial court erred in discharging the writ of garnishment because the evidence is legally insufficient to support the trial court's finding that Hallwood owed no money to HTS's judgment debtor, and thus had no funds upon which HTS could levy a writ of garnishment. HTS further contends that it conclusively proved that Hallwood owed the funds it sought to garnish to The Herman Group, L.P., the debtor named in HTS's judgment, pursuant to a contract Hallwood had with The Herman Group, L.P., or, alternatively, that the trial court's finding is against the great weight and preponderance of the evidence. We hold that the evidence supports the trial court's findings and therefore affirm.
*110 Factual and Procedural Background
In March 2003, HTS obtained a judgment against The Herman Group, L.P. for failure to pay a debt. HTS subsequently filed an application for writ of garnishment against Hallwood Commercial Real Estate LLC. In its answer to the writ, Hallwood Commercial Real Estate LLC stated it "was not indebted to Debtor, The Herman Group, L.P. ("Debtor")[,]" but was aware of "an agreement between Hallwood Realty Partners and Debtor or a person related to Debtor." (Emphasis added). John Tuthill, Hallwood Commercial Real Estate LLC's Vice-President, verified the answer.
HTS nonsuited the first writ and then filed an amended application for writ of garnishment against Hallwood, alleging that Hallwood and The Herman Group, L.P. were parties to a consulting contract under which Hallwood paid The Herman Group, L.P. a monthly fee. In its answer, Hallwood stated that the consulting agreement was between Hallwood and "Sherri Herman d/b/a The Herman Group"not "The Herman Group, L.P. (which is a separate legal entity)." Hallwood further stated that to its knowledge, The Herman Group, L.P. did not exist at the time Hallwood entered into the consulting agreement with Sherri Herman. Tuthill verified Hallwood's answer. HTS controverted Hallwood's denial, asserting that The Herman Group, L.P. "is either a successor-in-interest or the same entity as The Herman Group, all of which are merely vehicles for Sherri Herman to conduct business." Counsel for HTS verified HTS's controverting answer.
The trial court held a bench trial on the writ of garnishment on August 16, 2004. After hearing the evidence, the trial court rendered a judgment that dismissed the writ of garnishment against Hallwood and ordered that HTS take nothing. In a separate instrument, the trial court entered findings of fact and conclusions of law. The trial court found as follows:
1. On May 24, 2000, Hallwood Realty Partners, L.P. entered into an agreement with Sherri Herman and "The Herman Group" (an assumed name used by Sherri Herman).
2. On May 31, 2003, Hallwood Realty Partners, L.P. extended its agreement with Sherri Herman and "The Herman Group."
3. On December 2, 2003, Hallwood Realty Partners, L.P. and Sherri Herman and "The Herman Group" terminated their agreement.
4. The Herman Group, L.P. is a separate legal entity from Sherri Herman and "The Herman Group."
5. Hallwood Realty Partners, L.P. never had any contract with The Herman Group, L.P., never owed any money to The Herman Group, L.P., and does not owe any money to The Herman Group, L.P.
6. Garnishor HTS Services, Inc. obtained a judgment against The Herman Group, L.P. and not Sherri Herman or "The Herman Group."
7. The Writ of Garnishment issued on behalf of HTS Services, Inc. garnished any funds that Hallwood Realty Partners, L.P. owed to The Herman Group, L.P.
8. The Writ of Garnishment issued on behalf of HTS Services, Inc. did not garnish any funds that Hallwood Realty Partners, L.P. owed to Sherri Herman or "The Herman Group."
The trial court concluded as follows:
1. The Herman Group, L.P. is a separate legal entity from Sherri Herman and "The Herman Group" (an assumed name used by Sherri Herman).
*111 2. The Writ of Garnishment issued on behalf of HTS Services, Inc. did not cover funds that Hallwood Realty Partners, L.P. owed to Sherri Herman and "The Herman Group."
3. Because Hallwood Realty Partners, L.P. never owed money to The Herman Group, L.P., Hallwood did not violate the Writ of Garnishment issued on behalf of HTS Services, Inc.
4. Hallwood Realty Partners, L.P. is not liable to Garnishor HTS Services, Inc. for any monies owed by The Herman Group, L.P. to HTS Services, Inc.
5. Hallwood Realty Partners, L.P. is discharged from the Writ of Garnishment served upon it in this case, and Garnishor HTS Services, Inc. shall not recover anything from Hallwood Realty Partners, L.P.
On appeal, HTS contends that (1) the trial court erred in finding that Hallwood's contract was with "Sherri Herman d/b/a The Herman Group" because Hallwood failed to prove that any such entity exists, and (2) the evidence is insufficient to support the trial court's finding that Hallwood's contract was with "Sherri Herman d/b/a The Herman Group."
Analysis
Standard of Review
In an appeal from a bench trial, a trial court's findings of fact have the same weight as a jury's verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex.App.-Houston [1st Dist.] 1996, writ denied). When challenged, findings of fact are not conclusive if, as here, there is a complete reporter's record. Id. When there is a reporter's record, the trial court's findings of fact are binding only if supported by the evidence. Id. If the findings are challenged, we review the sufficiency of the evidence supporting the findings by applying the same standards that we use in reviewing the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994).
If a party attacks the legal sufficiency of an adverse finding on an issue as to which it bears the burden of proof, then it must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). In reviewing such a "matter of law" challenge, we examine the record for evidence that supports the challenged finding, ignoring evidence to the contrary. Id. If no evidence exists to support the finding, we examine the entire record to determine if the contrary proposition is established as a matter of law. Id.
In reviewing a factual sufficiency point, we consider all the evidence supporting and contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We set aside the verdict only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In a bench trial, the trial court, as factfinder, is the sole judge of the credibility of the witnesses. S.W. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.App.-Houston [1st Dist.] 1992, writ denied).
We review de novo a trial court's conclusions of law, and uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belgium v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); In re Moers, 104 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2003, no pet.). An appellant may not challenge a trial court's conclusions of law for lack of factual sufficiency, *112 but we review the legal conclusions drawn from the facts to determine their correctness. BMC Software Belgium, 83 S.W.3d at 794.
Burden of Proof
In its first issue, HTS asserts that the trial court erred in finding that Hallwood's contract was with "Sherri Herman d/b/a The Herman Group" because Hallwood failed to show that any such entity exists. HTS's argument fails in part because it improperly shifts the burden of proof to Hallwood. Moreover, the trial court heard evidence to support its findings.
Garnishment is a proceeding in which the property, money, or credits of a debtor that are in the possession of another the garnishee are applied to the payment of the debt. Bank One, Tex., N.A. v. Sunbelt Sav., F.S.B., 824 S.W.2d 557, 558 (Tex.1992). The garnishor may enforce, against the garnishee, any rights the debtor could have enforced had he sued the garnishee directly. Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039, 1042 (1937).
The primary issue in a garnishment suit is whether the garnishee is indebted to, or has in his possession effects belonging to, the debtor. . . . The nature of the answer filed by the garnishee . . . may or may not put in doubt the debtor's ownership of the funds.
. . . .
. . . [T]he garnishee's answer may be of a character that raises doubt about who actually owns funds admittedly held by the garnishee for another. As indicated in the Thompson[1] opinion, an answer of that kind is sufficient standing alone to put in issue the debtor's ownership.... Consequently, the burden of proof falls upon the garnishor to establish affirmatively that the debtor does own the funds, and the amount owned by him, if the garnishor wishes to recover any amount on the garnishment theory that the funds may be applied to the debtor's indebtedness because they are his property. If the garnishor's proof fails, he can of course recover nothing.
Putman Putman, Inc. v. Capitol Warehouse, Inc., 775 S.W.2d 460, 463 (Tex.App.-Austin 1989, writ denied) (citations omitted).
Here, Hallwood's answer "raise[d] doubt about who actually owns funds admittedly held by the garnishee for another." Id. Hallwood stated in its verified answer that its consulting agreement was with "Sherri Herman d/b/a The Herman Group" not "The Herman Group, L.P. (which is a separate legal entity)." Thus, Hallwood asserted that it was not indebted to The Herman Group, L.P. Hallwood's answer "put in issue" The Herman Group, L.P.'s entitlement to funds under the consulting agreement, and the burden of proof therefore fell upon HTS as garnishor to establish affirmatively that The Herman Group, L.P. was entitled to funds under the consulting agreement. Id.
Conclusive Proof of the Identity of the Judgment Debtor
In its brief, HTS acknowledges that it bears the burden of proof under Putman, but urges that if a garnishee asserts that a third party owns the funds, we should require the garnishee to show the third party actually exists. HTS does not cite to any law for this proposition. Instead, HTS contends that the uncorroborated testimony of a garnishee cannot establish that another person is doing business under an assumed name if official public records do not show that an assumed name certificate exists.
*113 HTS's argument fails for two reasons. First, the trial court in this case did not have to rely on the garnishee's "uncorroborated testimony" in finding that Hallwood's consulting agreement the source of the funds sought by HTS was with Sherri Herman and The Herman Group, an assumed name used by Sherri Herman. The evidence at trial showed that the consulting agreement, dated May 24, 2000, was signed by Hallwood and Sherri M. Herman as President of The Herman Group. The evidence also showed that The Herman Group, L.P. did not file its certificate of limited partnership with the Secretary of State until October 13, 2000. Thus, The Herman Group, L.P. did not exist at the time the parties entered into the consulting agreement; as a result, The Herman Group, L.P. was not, and could not have been, a party to the consulting agreement. This corroborates Mr. Tuthill's testimony that Hallwood contracted with Sherri Herman, who signed the contract as The Herman Group and not The Herman Group, L.P.
Second, although HTS is correct that Texas law requires parties to file assumed name certificates[2] and imposes civil[3] and criminal[4] penalties for failing to do so, the fact that Sherri Herman failed to file an assumed name certificate for The Herman Group does not mean it was impossible for Hallwood to contract with The Herman Group. In fact, the opposite is true under Texas law. "Failure to comply with the provisions of this chapter [mandating the filing of assumed name certificates] shall not impair the validity of any contract or act by such person. . . ." TEX. BUS. & COM. CODE ANN. § 36.25 (Vernon 2002). Thus, Sherri Herman's failure to file an assumed name certificate did not impair the validity of Hallwood's contract with Sherri Herman and The Herman Group.
Accordingly, we overrule HTS's first issue.
Sufficiency of the Evidence
In its second issue, HTS asserts that the plain language of the consulting contract demonstrates that the trial court's finding that Hallwood's agreement was with "Sherri Herman d/b/a The Herman Group" was against the great weight and preponderance of the evidence. We disagree. As previously discussed, the plain language of the consulting agreement states that the parties to the agreement are Hallwood and Sherri M. Herman, who signed the contract in her capacity as President of The Herman Group. The contract does not mention The Herman Group, L.P. nor could it, since The Herman Group, L.P. did not exist at the time the parties signed the contract. Thus, contrary to HTS's argument, the contract indicates that Hallwood contracted with The Herman Group not The Herman Group, L.P.
HTS observes that the parties' contract extension and termination agreements *114 added Sherri Herman, individually, to the agreement.[5] According to HTS, no reason existed to add Sherri Herman later if she was already a party to the original contract by virtue of her d/b/a "The Herman Group." This argument is unavailing because The Herman Group, L.P. did not exist at the time the parties entered into the original contract; therefore, The Herman Group, L.P. was not, and could not have been, a party to the original contract. If anything, the fact that the parties added Sherri Herman in her individual capacity to the extension agreement means the parties also could have added The Herman Group, L.P. in October 2000 when it was formed, or they could have added The Herman Group, L.P. at the time they added Sherri Herman individually. The parties, however, did not add The Herman Group, L.P. to their contract, and we cannot simply assume, contrary to the trial court's findings, "that `The Herman Group' had always been or was now The Herman Group, L.P.[,]" as HTS would have us do. See Putman, 775 S.W.2d at 463 (garnishor has burden of proof to establish affirmatively that debtor does own funds).
Here, sufficient evidence supports the trial court's finding that Hallwood contracted with Sherri Herman and The Herman Group, an assumed name used by Sherri Herman. First, the contract, dated May 24, 2000, identifies the parties as Hallwood and Sherri M. Herman, who signed the contract in her capacity as President of The Herman Group. The Certificate of Limited Partnership of The Herman Group, L.P. was not filed until October 13, 2000. Second, Mr. Tuthill, Hallwood's Vice-President, testified that Hallwood "never had a contract with The Herman Group, L.P."; rather, its contract was with Sherri Herman "and the way she signed her contract was The Herman Group[.]" Third, Hallwood introduced into evidence two checks it sent to Sherri Herman pursuant to the consulting agreement. One check was made payable to "Sherri Herman," while the other was made payable to "Sherri Herman dba Herman Group." Thus, the record supports the trial court's decision that Hallwood did not enter into a consulting agreement with the same entity against which HTS obtained its judgment.
Conclusion
We conclude that legally and factually sufficient evidence supports the trial court's finding that Hallwood contracted with Sherri Herman and The Herman Group, an assumed name used by Sherri Herman. We further conclude that the trial court's judgment is not contrary to the great weight and preponderance of the evidence. Accordingly, we affirm the judgment of the trial court.
NOTES
[1] Thompson v. Fulton Bag & Cotton Mills, 155 Tex. 365, 286 S.W.2d 411, 414 (1956).
[2] Under the Assumed Business or Professional Name Act, "[a]ny person who regularly conducts business or renders professional services. . . in this state under an assumed name shall file in the office of the county clerk in each county in which such person has . . . business or professional premises . . . a certificate setting forth the assumed name under which such business or professional service is. . . conducted or rendered[.]" TEX. BUS. & COM.CODE ANN. § 36.10(a)(1) (Vernon 2002).
[3] If a person fails to file an assumed name certificate as required by Chapter 36, such person is not permitted to bring suit until she files an assumed name certificate. Id. § 36.25; see also Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 55 (Tex.2003) (failure to file an assumed name certificate "affects a plaintiff's capacity to bring suit").
[4] Intentional failure to file an assumed name certificate is a Class A misdemeanor. TEX. BUS. & COM.CODE ANN. § 36.26 (Vernon 2002).
[5] On May 31, 2003, the parties agreed to extend the original contract for one year. This extension agreement was signed by Hallwood, by Sherri M. Herman in her capacity as President of The Herman Group, and by Sherri M. Herman in her individual capacity. On December 2, 2003, the parties terminated the contract. The termination agreement was signed by Hallwood, by Sherri M. Herman in her capacity as President of The Herman Group, and by Sherri M. Herman in her individual capacity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1616997/ | 190 S.W.3d 513 (2006)
Felicity Ann LALLIER, Petitioner/Respondent,
v.
Bruce LALLIER, Respondent/Appellant.
No. ED 86929.
Missouri Court of Appeals, Eastern District, Division Four.
April 25, 2006.
Nicholas Barrett Braun, St. Louis, MO, for appellant.
Leonard J. Frankel, St. Louis, MO, for respondent.
SHERRI B. SULLIVAN, Judge.
Introduction
Bruce Lallier (Father) appeals from a default judgment dissolving Father's marriage *514 to Felicity Ann Lallier (Mother) and awarding Mother custody of the parties' two children. Father argues that the trial court did not have jurisdiction to enter the judgment. We affirm in part and remand with directions in part.
Factual and Procedural Background
Father and Mother were married in October 1996 in New Zealand. The parties separated in January 2005. Two children (Children) were born of the marriage in March 1997 and November 1998. On January 26, 2005, Mother moved with Children to Missouri.
On May 13, 2005, Mother filed a Petition for Dissolution of Marriage (Petition) as well as a Request for Appointment of Process Server. The Petition alleged that Father lived in New Zealand at "28 Whites Line West, Lower Hutt" and that Children were born in New Zealand and lived with the parties in Dallas, Texas from December 2001 to December 2002, in New Zealand from December 2002 to July 2003, and in Garland, Texas from January 2003 to January 2005. The Petition also alleged that Mother had no information of any custody proceeding concerning Children in a court of Missouri or any other state.
The Summons for Service Outside the State (Summons) stated Father's address as 28 Whites Line West, Lower Hutt, New Zealand. On June 6, 2005, Mother filed a Return of Service, including a notarized Officer's Affidavit of Service (Affidavit) and an attached letter from A.G. (Tony) Lowe (Lowe). The Affidavit indicated that Lowe, a process server, served Father personally with a copy of the Summons and the Petition on May 31, 2005 within the County of Lower Hutt in the State or Territory of New Zealand. The letter, dated June 3, 2005, indicated that Lowe served Father with the documents at 8:56 p.m. on Tuesday May 31, 2005 at 28 Whites Line West, Lower Hutt, and that Father "freely acknowledged his identity and accepted the documents."
Father failed to file any pleading in response to the Petition. On July 5, 2005, the trial court entered an Interlocutory Order of Default pursuant to Rule 74.05.[1] On July 11, 2005, a hearing was held on Mother's Petition. Father failed to appear. Mother testified that she has lived in Missouri with Children since January 2005 and that at the time of the hearing, she believed Father lived in Dallas, Texas, though she did not have an address for him. Mother also testified that at the time the parties separated, they had lived with Children in Garland, Texas for about two years. Mother further testified that she understood that Father had filed a petition for dissolution in Texas but that she had not been served regarding that proceeding.
After the hearing, the trial court entered a judgment dissolving the parties' marriage and dividing the parties' property located in Missouri. The court attached to the judgment a Parenting Plan and a Form 14. The judgment awarded primary physical and legal custody of Children to Mother. Although the Form 14 calculations resulted in a presumed child support amount of $1,307 to be paid by Father, the court did not order child support or maintenance "at this time."
On August 8, 2005, Father filed a Motion for Relief from Judgment (Motion) pursuant to Rule 74.06 alleging that the judgment was void for lack of jurisdiction. Father executed the Motion in New Zealand. Subsequently, Father filed a memorandum of law in support of his Motion. On August 18, Mother filed a memorandum *515 of law in opposition to the Motion and an amended "Affidavit of Lowe," which included the information from his June 3 letter stating the time and place on service of Father.
On September 6, 2005, a hearing was held on Father's Motion. Father was not present. Mother testified that she moved to Missouri with Children on January 26, 2005, that she had no intention of returning to Texas to live, and that when she moved to Missouri, she was making St. Louis her permanent residence. Mother also testified that at the time of the hearing, she believed Father lived in New Zealand and that he telephoned Children once every day or two. The trial court stated that it understood there was a proceeding in Texas at that time involving the same issues.[2] Father's counsel confirmed that a proceeding to dissolve the parties' marriage and to determine child custody and child support issues was pending in Texas awaiting a decision from the trial court and that Mother had been served regarding this proceeding. After the hearing, the trial court entered a judgment denying Father's Motion and stating that the court "asserted proper jurisdiction over the parties."
Discussion
Father raises three points on appeal. In his first point, Father argues that the trial court was without subject matter jurisdiction to enter the judgment dissolving the parties' marriage because the Affidavit was incomplete on its face in that it did not state the time and place of service of Father.
Rule 54.20(b)(1) provides:
Every officer to whom summons or other process shall be delivered for service outside the state shall make an affidavit before the clerk or judge of the court of which affiant is an officer or other person authorized to administer oaths in such state stating the time, place and manner of such service, the official character of the affiant, and the affiant's authority to serve process in civil actions within the state or territory where such service was made. The court may consider the affidavit or any other evidence in determining whether service has been properly made.
(Emphasis added).
Although the Affidavit on its face did not state the time and place of service, the letter attached to and filed with the Affidavit stated this information. Under Rule 54.20(b)(1), the trial court could consider the letter as "other evidence" in determining whether service had been properly made, and we conclude that the letter was sufficient "other evidence" to show that service had been properly made. Accordingly, the trial court had subject matter jurisdiction to enter the judgment dissolving the parties' marriage. Father's point one on appeal is denied.
In his second point on appeal, Father argues that the trial court erred in not making express findings of fact in its judgment upon which subject matter jurisdiction to determine child custody could be based.
In Missouri, jurisdiction in child custody cases is governed by the Uniform Child Custody Jurisdiction Act (UCCJA), Sections 452.440 through 452.550.[3] It has been observed that it is implicit in the *516 scheme of the UCCJA that the trial court should make an initial determination of jurisdiction by express findings of fact before proceeding to the substantive issue of custody. Bounds v. O'Brien, 134 S.W.3d 666, 670 (Mo.App. E.D.2004). Thus, a ruling of jurisdiction by a court that is merely conclusory or that assumes jurisdiction, but is tacit as to the factual basis for that adjudication, does not meet the objectives of the UCCJA. Id. The trial court made no express findings of fact as to the factual basis for its assumption of jurisdiction under the UCCJA. Further, there is insufficient evidence in the record for us to determine proper jurisdiction under the UCCJA. Therefore, we remand to the trial court with directions to enter findings of fact as to the factual basis for its assumption of jurisdiction under the UCCJA. In so doing, the court may receive further evidence. Father's point two on appeal is granted.[4]
Conclusion
The judgment of the trial court is affirmed in part and remanded with directions in part.
NANNETTE A. BAKER, P.J., and ROBERT G. DOWD, JR., J., concur.
NOTES
[1] All rule references are to Mo. R. Civ. P.2005, unless otherwise indicated.
[2] We note that we are unable to discern from the record whether or not the trial court made any inquiry regarding any possible proceedings pending in Texas, as may have been required by subsections 2 and 3 of Section 452.465 RSMo 2000.
[3] All statutory references are to RSMo 2000, unless otherwise indicated.
[4] In light of our ruling under Father's point two on appeal, we do not address his point three on appeal, which argues that the trial court was without subject matter jurisdiction to enter the judgment awarding Mother custody of Children and that the Texas court had subject matter jurisdiction to determine the issue of child custody under the UCCJA. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2345731/ | 207 F.Supp.2d 589 (2002)
Lamar CAMPBELL, Petitioner,
v.
Henry GRAYSON, Respondent.
No. 01-72290.
United States District Court, E.D. Michigan, Southern Division.
May 13, 2002.
*590 Lamar Campbell, Parnall Correctional Facility, Jackson, MI, pro se.
Brenda E. Turner, Laura G. Moody, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for respondent.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
ROBERTS, District Judge.
I. Introduction
Petitioner Lamar Campbell, a state inmate currently incarcerated at the Parnall Correctional Facility in Jackson, Michigan, has filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Court denies the petition.
II. Facts
Petitioner's conviction arises out of his actions in relation to Joyce Robinson. Ms. Robinson testified that, as of 1995, she had known Petitioner for approximately four and a half years. She testified that she had dated Petitioner for approximately the first year that she knew him. For the three years since they had stopped dating, Ms. Robinson testified that Petitioner had engaged in harassing behavior. Petitioner had broken into her house and burned her car. For that offense, he was incarcerated. Ms. Robinson testified that, when Petitioner was released sometime in December 1994, he began stalking her and broke windows in her house. She also testified that around that time, someone burned her garage and, although she did not witness him doing so, she suspected that Petitioner had done so.
Ms. Robinson further testified that, on August 21, 1995, she obtained a Personal Protection Order ("PPO") against Petitioner and that she deliver a copy to his parole officer. She stated that she mailed a copy of the PPO by certified mail to Petitioner on October 23, 1995.
Ms. Robinson stated that, at about 1:00 p.m., on September 15, 1995, she saw Petitioner outside her house. She testified that he was pounding on her door, cursing, and demanding that she open the door. He then threw a brick with the PPO attached to it through a window. Ms. Robinson called the police. Ms. Robinson testified that, after that incident, Petitioner continued to call and threaten her. He sent her a letter on November 26, 1995, and a second letter shortly thereafter. He called her numerous times from August through December 6, 1995, when he was finally arrested.
Robert Storment testified that he was Petitioner's parole officer from August 31, 1995 through October 18, 1995. Agent Storment testified that Petitioner's former parole officer's notes indicated that Petitioner was informed on August 23, 1995, that a PPO had been issued against him.
The defense presented John Fleck III as an alibi witness. Mr. Fleck testified *591 that Petitioner was his employee and was working on September 15, 1995 as a driver. Mr. Fleck testified that at 1:00 p.m., on September 15, 1995, Petitioner was at a job site picking up employees, who he dropped off at another building at 1:30 p.m. Mr. Fleck further testified that Petitioner's time card indicated that, on September 15, 1995, Petitioner worked from 6:00 a.m. to 8:00 a.m., from 11:45 a.m. to 6:58 p.m., and from 10:02 p.m. to 12:00 a.m.
Petitioner did not testify in his own defense.
III. Procedural History
Following a bench trial in Wayne County Circuit Court, Petitioner was convicted of aggravated stalking. On April 10, 1996, he was sentenced to two to five years imprisonment.
Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. Was defendant-appellant wrongfully convicted of aggravated stalking by violating a personal protection order the violation of which was based on tape recorded telephone conversations that were improperly admitted?
II. Was defendant-appellant wrongfully convicted of aggravated stalking by violating a personal protection order the absolute notice of which was determined by the testimony of a parole agent who had no knowledge of notice and only testified from the notes of another agent?
III. Was defendant-appellant wrongfully convicted of aggravated stalking for violating a personal protection order the violation of which was based on flawed testimony?
IV. Was defendant-appellant convicted of aggravated stalking without adequate representation of counsel?
This Michigan Court of Appeals affirmed Petitioner's sentence. People v. Campbell, No. 196423, 1997 WL 33331091 (Mich.Ct.App. Nov.21, 1997).
Petitioner filed a delayed application for leave to appeal to the Michigan Supreme Court, presenting the issues presented on direct appeal to the Michigan Court of Appeals, and the following additional issues:
V. MRE Rule 401 definition of "relevant evidence" as opposed to MRE Rule 901 "requirement of authentication or identification."
VI. Complainant/Ms. Robinson "maliciously" accused the defendant-appellant of aggravated and malicious destruction of property under $100 in retaliation for threat of civil suit.
The Michigan Supreme Court denied leave to appeal. People v. Campbell, 459 Mich. 857, 583 N.W.2d 900 (1998).
Thereafter, Petitioner filed a motion for relief from judgment in the trial court, presenting the following claims:
I. Was it prejudicial error for the prosecutor to allow into evidence, statements that are absolutely false, amounting to a miscarriage of justice, and in violation of defendant's Sixth Amendment right to a fair trial, under the U.S. Constitution and Michigan Constitution 1963, Art. 1 § 20?
II. Did the trial court, in a bench trial, after questioning the defendant's alibi witness, fail to articulate on the record why her decision did not disclose a critical determination as to defendant's alibi defense, violate defendant's right to a fair trial?
III. Was Mr. Campbell denied due process of law, where he was not given fair notice of the specific charges, and as a result, was denied *592 the opportunity to prepare and present a defense to those charges?
IV. Was Mr. Campbell denied effective assistance of appellate counsel in violation of his Sixth Amendment right, under the U.S. Constitution 1963, Art. 1, § 20?
V. Was the defendant denied due process of law, when he was charged under a[n] unconstitutional statute which violates the First Amendment of the U.S. Constitution?
The Wayne County Circuit Court denied the motion for relief from judgment. People v. Campbell, No. 95014001 (Wayne County Circuit Court Nov. 30, 1998).
Petitioner then filed a delayed application for leave to appeal the trial court's denial of his motion for relief from judgment in the Michigan Court of Appeals. The Michigan Court of Appeals denied leave to appeal. People v. Campbell, No. 221227 (Mich.Ct.App. July 11, 2000). Petitioner filed a delayed application for leave to appeal to the Michigan Supreme Court, which was also denied. People v. Campbell, No. 117489 (Mich. Dec. 27, 2000).
On June 13, 2001, Petitioner filed the pending petition for a writ of habeas corpus, presenting the following claims:
I. It is prejudicial error for the prosecutor to allow into evidence, statements that are absolutely false, amounting to a miscarriage of justice and in violation of Petitioner's Fourteenth Amendment right to due process of law, Sixth Amendment right to a fair trial under the United States Constitution and Michigan Constitution 1963, Article 1, Section 20.
II. When the trial judge, in a bench trial, questioned Petitioner's alibi witness and failed to articulate on the record why her decision did not disclose a critical determination to Petitioner's alibi defense, violated Petitioner's right to a fair trial and the burden of proof was shifted to Petitioner.
III. Petitioner was denied due process of law where he was not given fair notice of the specific charges, and as a result, was denied the opportunity to adequately prepare or present a defense to those charges, in violation of Petitioner's constitutional rights under the Fifth and Fourteenth Amendment(s).
IV. Petitioner was deprived of his liberty without due process of law under the State and United States Constitutions where he was denied the effective assistance of both trial and appellate counsel, where counsel's unprofessional and grievous omissions resulted in the conviction of an innocent person in violation of the Sixth and Fourteenth Amendment(s) of the United States Constitution.
IV. Analysis
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case.
As amended, 28 U.S.C. § 2254(d) imposes the following standard of review that a federal court must utilize when reviewing applications for a writ of habeas corpus:
*593 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429 (6th Cir.1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1)[1]; see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir.1995) ("We give complete deference to state court findings unless they are clearly erroneous").
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.... A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.
Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 1521. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable ...
[A]n unreasonable application of federal law is different from an incorrect application of federal law.... Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.
Id. at 1521-22.
With this standard in mind, the Court proceeds to the merits of the petition for a writ of habeas corpus.
B. Procedural DefaultClaims I through III
Respondent claims Petitioner's first through third claims are barred from review *594 in this Court because they are procedurally defaulted. The doctrine of procedural default provides:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 750, 111 S.Ct. 2546, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir.1996). Application of the cause and prejudice test may be excused if a petitioner "presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent." Rust, 17 F.3d at 162; Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir.1992), cert. denied, 507 U.S. 932, 113 S.Ct. 1314, 122 L.Ed.2d 702 (1993). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30, 111 S.Ct. 2546. "When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state ground only if the state court rendering judgment in the case clearly and expressly stated that its judgment rested on a procedural bar." Simpson, 94 F.3d at 202.
If the last state court from which the petitioner sought review affirmed the conviction both on the merits, and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. Rust, 17 F.3d at 161. If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).
This Court begins its analysis of whether Petitioner's claims are procedurally defaulted by looking to the last reasoned state court judgment denying Petitioner's claims. See Coleman, 501 U.S. at 729-30, 111 S.Ct. 2546. The last state court to address these claims, the Michigan Supreme Court, denied Petitioner leave to appeal because Petitioner "failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Campbell, No. 221227 (Mich. July 11, 2000). The Sixth Circuit Court of *595 Appeals has held that M.C.R. 6.508(D) is a firmly established and regularly followed state ground precluding subsequent federal habeas review absent a showing of cause and prejudice where the rule was in effect at the time of a petitioner's direct appeal. Luberda v. Trippett, 211 F.3d 1004, 1007 (6th Cir.2000), citing Rogers v. Howes, 144 F.3d 990 (6th Cir.1998). M.C.R. 6.508(D) was enacted in October 1989. Petitioner was convicted in 1996. Thus, M.C.R. 6.508(D) was a firmly established and regularly followed state procedural bar at the time of Petitioner's conviction and direct appeal. The Sixth Circuit Court of Appeals has also held that even a judgment as brief as the one by which the Michigan Supreme Court denied leave to appeal in this case is sufficient to invoke the doctrine of procedural default. Simpson v. Jones, 238 F.3d 399, 408 (6th Cir.2000). Accordingly, the state court's judgment clearly rested on a procedural bar and the doctrine of procedural default is invoked.
Therefore, this Court may not review Petitioner's claims unless he has established cause for the default and actual prejudice as a result of the alleged violation of federal law or unless he has demonstrated that failure to consider these claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750, 111 S.Ct. 2546.
In the instant case, Petitioner claims that his appellate attorney's ineffectiveness constitutes "cause." The Supreme Court has held that "cause" under the cause and prejudice standard must be "something external to the petitioner, something that cannot fairly be attributable to him." Coleman, 501 U.S. at 753, 111 S.Ct. 2546. The Court further held that "[a]ttorney ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error.... Attorney error that constitutes ineffective assistance of counsel is cause, however." Id. at 753-54, 111 S.Ct. 2546 (internal citations omitted).
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-pronged test for determining whether a habeas petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This "requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. Second, a petitioner must show that counsel's deficient performance prejudiced petitioner. A petitioner may establish prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id.
The Supreme Court emphasized that, when considering an ineffective assistance of counsel claim, the reviewing court should afford counsel a great deal of deference:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hind-sight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional *596 assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
Id. at 689, 104 S.Ct. 2052 (internal citations omitted).
The Court further explained that, to establish deficient performance, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. To satisfy the prejudice prong, a petitioner must show that "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. 2052. The Sixth Circuit, applying the Strickland standard, has held that a reviewing court therefore must focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir.1996), cert. denied 520 U.S. 1257, 117 S.Ct. 2422, 138 L.Ed.2d 185 (1997).
Petitioner claims that his appellate attorney was ineffective for failing to raise the issues raised herein on direct appeal in state court. The Supreme Court has held that a petitioner does not have a constitutional right to have appellate counsel raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). The Court further stated:
For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every "colorable" claim suggested by a client would disserve the ... goal of vigorous and effective advocacy.... Nothing in the Constitution or our interpretation of that document requires such a standard.
Id. at 754, 103 S.Ct. 3308. Strategic and tactical choices regarding which issues to pursue on appeal are "properly left to the sound professional judgment of counsel." United States v. Perry, 908 F.2d 56, 59 (6th Cir.1990).
The Court will examine each of Petitioner's defaulted claims, in turn, to determine whether appellate counsel was ineffective in failing to raise these claims. First, Petitioner claims that his appellate attorney was ineffective in failing to argue that the prosecutor improperly permitted prosecution witness Joyce Robinson to perjure herself. While a review of the trial court transcript reveals that there may have been some inconsistencies in Ms. Robinson's testimony, such inconsistencies do not amount to perjury. Petitioner's attorney had the opportunity to cross-examine Ms. Robinson regarding her recollections and the trial court had the opportunity to weigh her credibility. Petitioner has not established that Ms. Robinson committed perjury with the prosecutor's knowledge. Therefore, Petitioner's appellate attorney's failure to present this issue on appeal was not ineffective.
Second, Petitioner claims that his appellate attorney was ineffective in failing to present a claim on appeal that the trial court erred in failing to address Petitioner's alibi defense when the court rendered its guilty verdict. Under Michigan law, a trial court conducing a bench trial must make separate findings of fact and conclusions of law. People v. Johnson, 208 Mich. App. 137, 141, 526 N.W.2d 617 (Mich.Ct. App.1994). This requirement facilitates appellate review. Id. Where it is clear that the trial court was aware of the factual issues and resolved them, further articulation is unnecessary. Id. at 141-142, 526 N.W.2d 617. A review of the trial court's findings of fact and conclusions of law shows that, while the trial court did not address Petitioner's alibi defense at length, the trial court was aware of the defense *597 and was not persuaded by it. Thus, the trial court's findings complied with Michigan law. Accordingly, appellate counsel was not ineffective in failing to raise this issue on direct appeal.
Finally, Petitioner claims that his appellate attorney was ineffective for failing to argue on appeal that Petitioner had not been give fair notice of the charges against him and, consequently, was unable to present a defense to those charges. Specifically, Petitioner claims that he was unaware that he would have to defend against violation of a PPO, when he was charged with aggravated stalking. However, under Michigan law, an essential element of aggravated stalking is the violation of a court order of which the defendant was aware. Mich. Comp.Laws § 750.411i(2)(b). Therefore, Petitioner's claim that he was unaware that he would have to defend against the violation of a court order is baseless. Consequently, his appellate attorney's failure to raise this meritless claim was not ineffective.
Thus, the Court concludes that appellate counsel was not ineffective in failing to present the procedurally defaulted issues because Petitioner was not prejudiced by the omission of meritless issues. Because Petitioner has failed to establish that his appellate attorney rendered ineffective assistance of counsel, he has failed to show cause for his procedural default. His claims are therefore barred unless he can establish that a constitutional error resulted in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
The Supreme Court explicitly has tied the miscarriage of justice exception to procedural default to a petitioner's innocence. Schlup, 513 U.S. at 321, 115 S.Ct. 851. Thus, Petitioner must assert a constitutional error along with a claim of innocence. To make a showing of actual innocence, "a petitioner must show that it is more likely than not that no reasonable juror would have found Petitioner guilty beyond a reasonable doubt." Id. at 327, 115 S.Ct. 851. The Court further explained this standard as follows:
The ... standard is intended to focus the inquiry on actual innocence. In assessing the adequacy of petitioner's showing, therefore, the district court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on "actual innocence" allows the reviewing tribunal to consider the probative force of relevant evidence that was either excluded or unavailable at trial.... The habeas court must make its determination concerning the petitioner's innocence in light of all the evidence, including ... evidence tenably claimed to have been wrongly excluded or to have become available only after trial.
....
... [A]ctual innocence does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.
Id. (internal quotation omitted).
Petitioner fails to present new, reliable evidence in light of which no reasonable juror would have found him guilty. *598 Therefore, the foregoing claims are barred from consideration by procedural default.
C. Procedural DefaultClaim IV
Finally, Petitioner claims that he is entitled to habeas corpus relief because he received ineffective assistance of trial counsel. Specifically, Petitioner claims that his trial counsel (i) failed to adequately present a defense, (ii) failed to object to the admission of other acts evidence, (iii) failed to move for a directed verdict, and (iv) failed to object to the jury instructions. Respondent argues that Petitioner's fourth claim that his trial counsel was ineffective is barred from review because Petitioner has not exhausted this claim in state court and is procedurally barred from doing so.
A prisoner challenging his confinement by way of a habeas corpus petition must exhaust his state court remedies prior to seeking federal habeas corpus relief by fairly presenting the substance of each federal constitutional claim in state court. 28 U.S.C. § 2254(b); Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wong v. Money, 142 F.3d 313, 322 (6th Cir.1998). A prisoner's "`fairly presents' his claim to the state courts by citing a provision of the Constitution, federal decisions using constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns." Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir.1993); see also Prather v. Rees, 822 F.2d 1418, 1420 (6th Cir.1987) (holding that "[o]rdinarily, the state courts must have had the opportunity to pass on defendant's claims of constitutional violations"). State prisoners in Michigan must raise each claim in the Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal habeas corpus relief. See Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990). The petitioner bears the burden of showing that state court remedies have been exhausted. Prather, 822 F.2d at 1420, n. 3.
Petitioner's ineffective assistance of counsel claims raised herein have not been presented in state court. Thus, Petitioner has failed to exhaust his state court remedies with respect to these claims. However, no state court remedy is available to Petitioner because he already has filed one motion for relief from judgment in the state trial court and, pursuant to M.C.R. 6.502(G), he may not file a successive motion. Where a petitioner "fails to present his claims to the state courts and ... is barred from pursuing relief there, his petition should not be dismissed for lack of exhaustion because there are simply no remedies available for him to exhaust." Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir.1995). However, a petitioner will not be allowed to present unexhausted claims unless he can show cause to excuse his failure to present the claims in the state courts and actual prejudice to his defense at trial or on appeal.
Petitioner claims that his appellate attorney was ineffective in failing to raise each of the ineffective assistance of trial counsel claims raised herein on direct appeal, and that such ineffectiveness establishes cause for his procedural default. As outlined above, the Court will examine each of Petitioner's defaulted ineffective assistance of trial counsel claims, in turn, pursuant to the Strickland standard, to determine whether appellate counsel was ineffective in failing to raise these claims.
First, Petitioner makes the conclusory allegation that his attorney failed to adequately present a defense. Petitioner fails to specify what more his attorney could have done to strengthen his defense. Such a conclusory allegation, without more, is insufficient to establish ineffective assistance of counsel. See Bowen v. Foltz, 763 F.2d 191, 194 (6th Cir.1985). Thus, Petitioner's appellate attorney was not ineffective *599 for failing to raise a meritless issue.
Second, Petitioner claims that his attorney was ineffective in failing to object to the admission of other acts evidence. The record reflects that trial counsel objected to the admission of evidence attempting to prove a pattern of harassment. The trial court limited the testimony to incidents occurring after Petitioner received notice of the PPO. Thus, Petitioner's claim that his attorney failed to lodge an objection is not supported by the record.
Third, Petitioner claims that his trial attorney was ineffective in failing to move for a directed verdict. The record reflects that trial counsel moved for a directed verdict at the close of the prosecution's case. Therefore, this claim is unsubstantiated in the record.
Finally, Petitioner claims that his attorney was ineffective in failing to object to the jury instructions. Petitioner has failed to show in what way the jury instructions were improper. Therefore, his trial attorney was not ineffective in failing to object to them.
Thus, the Court concludes that appellate counsel was not ineffective in failing to present the procedurally defaulted ineffective assistance of counsel claims because Petitioner was not prejudiced by the omission of meritless issues. Because Petitioner has failed to establish that his appellate attorney rendered ineffective assistance of counsel, he has failed to show cause for his procedural default. Petitioner also has failed to show that a constitutional error resulted in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Accordingly, Petitioner's claims of ineffective assistance of counsel are barred because they are procedurally defaulted and Petitioner has failed to establish cause and prejudice to excuse the procedural default.
V. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.
NOTES
[1] 28 U.S.C. § 2254(e)(1) provides, in pertinent part:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3043241/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1173
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Andres Manuel Romero, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: August 30, 2007
Filed: September 6, 2007
___________
Before BYE, RILEY, and MELLOY, Circuit Judges.
___________
PER CURIAM.
Andres Romero appeals the district court’s1 denial of his 18 U.S.C. § 3582(c)(2)
motion, in which he sought a reduction of his federal drug sentence based on
Amendment 591 to the Sentencing Guidelines. We agree with the district court that
Amendment 591 does not affect Romero’s sentence, and Romero has not argued any
other basis for modification under § 3582(c)(2). Accordingly, we affirm. See 8th Cir.
R. 47B. We also deny Romero’s pending appellate motions.
______________________________
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1617098/ | 190 S.W.3d 410 (2006)
STATE of Missouri, Plaintiff-Respondent,
v.
Machelle SLAVENS, a/k/a Machelle Kelley, a/k/a Machelle Martin, Defendant-Appellant.
No. 26584.
Missouri Court of Appeals, Southern District, Division Two.
March 10, 2006.
Motion for Rehearing or Transfer Denied April 3, 2006.
Application for Transfer Denied May 30, 2006.
*411 Bruce Galloway, Springfield, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen. and Karen L. Kramer, Assistant Attorney General, Jefferson City, for Respondent.
PHILLIP R. GARRISON, Judge.
Machelle Slavens ("Defendant")[1] appeals the jury convictions of the class A felony of kidnapping, in violation of Section 565.110[2] and the class D felony of interference with custody, in violation of Section 565.150, challenging, inter alia, the application of Section 565.110 to the facts of this case, and sufficiency of the evidence as to Section 565.150. We reverse.
Viewed in the light most favorable to the verdict, the following evidence was adduced at trial: On November 1, 2000, Defendant gave birth to T.M., a preterm baby girl in Harrison, Arkansas. T.M. was transferred, at the request of her treating physician in Arkansas, to the Cox South Hospital ("Cox") Neonatal Intensive Care Unit ("NICU"), in Springfield, Missouri, on November 2, 2000, suffering from respiratory distress, respiratory failure, and possible infection as a result of her premature birth. She was admitted to the NICU and treated by Dr. Colleen Rose ("Dr.Rose"), a neonatal specialist.
Brandy Goddard ("Goddard"), a deputy juvenile officer with the Greene County Juvenile Office, was notified of the birth of T.M., and that T.M. was a patient in the NICU receiving medical care. At 9:00 a.m. on November 8, 2000, based on her authority under Rule 111.12,[3] Goddard decided to take T.M. into protective custody.
Goddard contacted Denise Salter ("Salter"), a social worker with the NICU at Cox and informed her that T.M. had been placed in the temporary legal custody of the Missouri Division of Family Services ("DFS") and that she was not to be discharged to her parents. Goddard filled out the necessary paper work, and faxed the form to Cox to be placed in T.M.'s hospital records. At approximately 3:30 p.m. that same day, Goddard spoke to Defendant on the phone at which time Goddard informed her that she was taking custody of T.M. Following this conversation, Goddard filed a petition and affidavit setting forth her rationale for placing T.M. in protective custody. The circuit court of Greene County issued an order granting Goddard's petition at 4:15 p.m. on November *412 8, 2000, which effectively placed T.M. in the legal custody of DFS.
Between 1:30 a.m. and 2:00 a.m. on November 9, 2000, Defendant, with the aid of her mother, Pam Slavens ("Pam") and her husband John Martin ("Martin"), removed T.M. from NICU and hurriedly left the hospital after being noticed by several hospital employees. Approximately five and one-half hours later authorities were able to trace a call made from Defendant at a truck stop in Oklahoma to her grandmother. Oklahoma Highway Patrolman John Looper was dispatched to the truck stop and upon his arrival he found Defendant, T.M. and Martin in the lounge, and he arrested Defendant.
Defendant was charged, as a prior and persistent offender, in an amended felony information with the class A felony of kidnapping ("Count I"), the class D felony of interference with custody ("Count III"), and the class D felony of endangering the welfare of a child in the first degree ("Count V").[4]
The case was tried before a jury, and on July 29, 2004, the jury returned a verdict of guilty on the above mentioned counts of kidnapping, interference with custody and endangering the welfare of a child in the first degree. Defendant was sentenced to seventeen years on Count I, five years on Count III, and ten years on Count V, with the sentences to run concurrently. Defendant appeals her convictions as to Counts I and III only.
Defendant raises eight points in this appeal, however, as we find Points I and V dispositive, we need not address the remaining issues. In Point I, Defendant argues that the facts of this case are not punishable as kidnapping under Section 565.110.1(3). In Point V, Defendant argues that there was not sufficient evidence to support the finding that she knew that she had no legal right to remove T.M. from the custody of DFS in violation of Section 565.150. We agree as to both points.
In Point I, Defendant contends that the trial court erred in overruling her motions for judgments of acquittal at the close of the State's evidence and at the close of all the evidence, in that the State failed to establish the elements of kidnapping under Section 565.110.1(3). Section 565.110 provides in pertinent part:
A person commits the crime of kidnapping if he or she unlawfully removes another without his or her consent from the place where he or she is found or unlawfully confines another without his or her consent for a substantial period, for the purpose of
. . . .
(3) Interfering with the performance of any governmental or political function[.]
Appellant argues, and we are constrained to agree, that applying this kidnapping provision to a situation in which a mother allegedly removed her child to prevent DFS, or another state agency, from taking custody, is contrary to the intentions of the General Assembly.[5]
In applying a criminal statute "our primary role is to ascertain the intent of the legislature from the language used in the statute and, if possible, give effect to that intent." Spier v. State, 174 S.W.3d 539, 542 (Mo.App. E.D.2005). The statute does not define what constitutes a governmental function. When an uncertainty about a statute's application exists "we *413 consider `the statute's history, surrounding circumstances, and ... the problem in society to which the legislature addressed itself.'" State v. Daniel, 103 S.W.3d 822, 826 (Mo.App. W.D.2003) (quoting State v. Condict, 65 S.W.3d 6, 12 (Mo.App. S.D. 2001)).
Defendant directs our attention to Spier, in which the eastern district of this court had occasion to construe the provision of the kidnapping statute now before us. There, the court held, on strikingly similar facts, that a parent who has removed a child from the custody of a state agency could not, in light of the statutory history, be considered interfering with a governmental function under Section 565.110.1(3). Spier, 174 S.W.3d at 542.
The applicable portion of this statute, subsection 3, is drawn, nearly verbatim from Section 212.1(d) of the Model Penal Code.[6]Spier, 174 S.W.3d at 541. As such, the comments to the Model Penal Code provide guidance in gleaning the legislative intent behind Section 565.110. It has been well established that when the legislature adopts a model act, we must presume that the "General Assembly intended to adopt the interpretation of that section contained in the applicable comments" to the model act, in this instance, the Model Penal Code. Id at 542; State v. Anderson, 515 S.W.2d 534, 539 (Mo. banc 1974); State v. Welty, 729 S.W.2d 594, 596 (Mo.App. S.D.1987); John Deere Co. v. Jeff DeWitt Auction Co., Inc., 690 S.W.2d 511, 514 (Mo.App. S.D.1985).
In Spier, the court pointed to the comments following Section 212.1(d) to illustrate the legislature's intentions:
. . . paragraph (d) adds a provision against kidnapping `to interfere with the performance of a governmental or political function.' This specification reaches political terrorism and the like, and classifies such conduct as among the most serious kinds of unlawful confinement.
Id. at 541. (quoting A.L.I., Model Penal Code and Commentaries, Part II, Section 212.1, comment 4, p. 228 (1980)). The comments further stated:
The list of purposes in Section 212.1 thus would exclude from kidnapping cases where a parent out of affection takes his child away from another parent or lawful custodian. . . .
Id. at 542. (quoting A.L.I., Model Penal Code and Commentaries, Part II, Section 212.1, comment 4, p. 228 (1980)). We also find guidance in the commentary describing the relationship between the Model Penal Code's kidnapping provision and the Model Penal Code's provision regarding interference with custody, which states in pertinent part:
Interference with custody and kidnapping address quite distinct concerns. Kidnapping protects against physical danger, extortion, and terrorization by abduction. Section 212.4 [interference with custody], on the other hand, is designed to maintain both the parental custody of children and the institutional authority over committed person against all unlawful interference. . . . Interference with custody is further distinguished from kidnapping by the likelihood that the actor will be a parent or other person favorably disposed toward *414 the child or committed person, thus justifying a different penalty structure and the consideration of special defenses.
A.L.I., Model Penal Code and Commentaries, Part II, Section 212.4, comment 4, p. 252 (1980) (emphasis added).
Furthermore, we find it telling that the General Assembly has enacted several other statutes relevant to Defendant's alleged conduct in this case. Most notably Section 565.153, entitled Parental kidnapping which states:
In the absence of a court order determining rights of custody or visitation to a child, a person having a right of custody of the child commits the crime of parental kidnapping if he removes, takes, detains, conceals, or entices away that child within or without the state, without good cause, and with the intent to deprive the custody right of another person or a public agency also having a custody right to that child.[7] (emphasis added).
Likewise Section 211.421 criminalizes "Interfering with orders of court or endangering the welfare of child" for anyone that "knowingly or negligently disobeys, violates or interferes with a lawful order of the court with relation to the child. . . ." Section 565.150, with which Defendant was charged, also criminalizes interference with custody if "knowing that he has no legal right to do so, he takes or entices from legal custody any person entrusted by order of a court to the custody of another person or institution."[8] These statutes are further evidence that the legislature did not intend kidnapping, by way of interfering with a governmental or political function, to include parents removing their children from the custody of another.
Based upon the principles outlined above, we concur with the eastern district's construction of Section 565.110.1(3). The Model Penal Code and Missouri's statutory scheme clearly illustrate that a parent taking their own child from a government agency is not considered "interfering with the performance of any government or political function" under Section 565.110.1(3). Accordingly, Defendant cannot be said to have interfered with the performance of any governmental or political function by removing her child. As such, the trial court erred in overruling Defendant's motion for acquittal at the close of the evidence, and the Defendant's conviction pursuant to Section 565.110.1(3) must be reversed.
In Point V, Defendant argues that the trial court erred in denying her motion for judgment of acquittal on the charge of interference with custody in that the State failed to prove that she knew that she was removing T.M. from the custody of DFS, and that she was aware that she had no legal right to do so.
In reviewing a jury verdict for sufficiency of the evidence, "we accept as true all of the evidence favorable to the State, including all reasonable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary." State v. Shockley, 98 S.W.3d 885, 890 (Mo.App. S.D.2003). This review is limited to determining whether sufficient evidence existed from which "a reasonable juror might have found the defendant guilty beyond a reasonable doubt." Id.
*415 Interference with custody is criminalized by Section 565.150, which provides in pertinent part:
A person commits the crime of interference with custody if, knowing that he has no legal right to do so, he takes or entices from legal custody any person entrusted by order of a court to the custody of another person or institution.
The verdict directing instruction given in this case pertaining to the charge of interference with custody read as follows:
As to Count III [interference with custody Section 565.150], if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about the 9th day of November, 2000, in the County of Greene, State of Missouri, [D]efendant took T.M. from the custody of the [DFS], and
Second, that T.M. had been entrusted by order of a Court to the custody of [DFS], and
Third, that [D]efendant knew she had no legal right to so take T.M. from the custody of [DFS], and[9]
Fourth, that [D]efendant removed T.M. from this state, then you will find [D]efendant guilty under Count III of interference of custody. (emphasis added).
A plain reading of both the instruction and Section 565.150 reveals that the State must show that Defendant knew she was taking T.M. from the custody of DFS, and was aware that she had no legal right to do so in order to support a conviction for interfering with custody. As is discussed below there was not sufficient evidence presented at trial that Defendant knew that DFS had custody of T.M.
The State maintains that Goddard's conversations with Defendant were sufficient evidence of Defendant's knowledge. However, the record clearly illustrates that Goddard simply told Defendant that she was taking custody of T.M. Goddard never told Defendant that DFS was taking, or had been ordered to take, custody. Nor was there any evidence in the record that Defendant believed Goddard was acting on behalf of DFS.[10]
The State also argues that Defendant's actions (removing T.M. from the hospital in early morning hours, and running away from hospital workers) was sufficient evidence that she was aware that she had no legal right to remove T.M. While this evidence tends to show that Defendant knew that taking T.M. was opposed by the hospital, it does not tend to prove that Defendant knew that DFS actually had custody of T.M.
The State also points to the following testimony by Martin at trial to illustrate that Defendant knew DFS had custody of T.M.:
Q. And [Defendant] wanted to take [T.M.] from the hospital so DFS couldn't take custody; isn't that right?
A. I assume so.
. . . .
Q. Well do you remember answering that you had gone so that you could take so that DFS couldn't take custody of [T.M.].
*416 A. No, I don't recall that either.
Then, the prosecutor attempted to impeach Martin with a prior statement during this exchange:
Q. Do you remember Detective Everett asking you [if the reason T.M. was taken from the hospital was to prevent DFS from taking custody]?
A. No. I mean, that's been over two years ago.
. . . .
Q. Now [Defendant] had told you that if you took [T.M.] from the hospital, then DFS and juvenile couldn't take custody, isn't that correct?
A. I'm sure somewhere along the line, she did, yeah.
Q. And that's why you wanted to get out of the hospital so quickly after you took [T.M.], so no one could tell you that DFS had taken custody; isn't that correct?
A. I have no idea. I mean, that's . . . If something like that's going on, you don't stick around to find out what's going to happen.
This is not evidence from which a reasonable juror could conclude that Defendant knew that DFS had actually taken custody of T.M. The testimony reproduced above was elicited during cross-examination of Martin in which he never affirmatively states that Defendant knew that DFS was in custody of T.M. At best it tends to show that T.M. was aware that DFS might, was trying to, or was in the process of taking custody of T.M. Throughout the exchange the State characterized Defendant and Martin's actions as "preventing" DFS from taking custody; or removing T.M. from the hospital so "DFS couldn't take" custody. However, the statute under which she was charged and the corresponding verdict directing instruction both require a finding that Defendant took the child from the custody of another, not that Defendant prevented another from taking custody of a child. See Section 565.150; MAI-CR 319.30.
Our review of the entire record reveals that the evidence relied upon by the State is insufficient to show that Defendant knew that DFS actually had custody of T.M. when she removed her from the hospital. Accordingly, Point V is granted and Defendant's conviction as to Count III, interference with custody, must be reversed.
The Defendant's convictions as to Counts I and III are reversed.
SHRUM, P.J., and BARNEY, J., concur.
NOTES
[1] Defendant is also known as Machelle Kelley and Machelle Martin.
[2] All references to statutes are to RSMo (2000) unless otherwise indicated.
[3] Rule 111.12(b), Missouri Juvenile Court Rules (2000), states in pertinent part:
A juvenile may be taken into temporary protective custody by a juvenile officer if there is reasonable cause to believe that the juvenile is without proper care, custody or support and that temporary protective custody is necessary to prevent personal harm to the juvenile.
. . . .
(d) Temporary protective custody of a juvenile for a period not to exceed twenty-four hours may be authorized by the juvenile officer. A juvenile who has been taken into temporary protective custody by the juvenile officer shall not be held for a period of more than twenty-four hours unless the court has authorized extended temporary protective custody or protective custody pursuant to Rule 111.13.
[4] Defendant was also charged with the class B felony of kidnapping and the class C felony of felonious restraint however, she was acquitted of both counts.
[5] The verdict directing instruction on Count I required a finding that Defendant interfered with a governmental function by preventing DFS from taking custody of T.M.
[6] Section 212.1 of the Model Penal Code provides:
A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes:
. . . .
(d) to interfere with the performance of any governmental or political function.
[7] While there was a court order in this case, there was no evidence as noted below, that Defendant had knowledge of it.
[8] Defendant makes no argument on this appeal that she was convicted of two separate offenses for the same act in violation of Section 556.041.
[9] This instruction complies with MAI-CR 319.30. We note that while Section 565.150 states that a person who "takes ... from legal custody any person," is guilty of interference with custody, paragraph three of the corresponding approved instruction does not distinguish between legal and physical custody. (emphasis added).
[10] At oral argument, counsel for the State admitted that there was no evidence in the record that Defendant was ever told that DFS had custody of T.M. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617090/ | 190 S.W.3d 254 (2006)
Jose Rolando MARTINEZ, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-04-01250-CR.
Court of Appeals of Texas, Houston (1st Dist.).
January 12, 2006.
Discretionary Review Refused May 17, 2006.
*256 Ken Goode, Houston, for appellant.
Dan McCrory, Asst. Dist. Atty., Houston, for appellee.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
OPINION
TERRY JENNINGS, Justice.
We withdraw our December 1, 2005 opinion, substitute this opinion in its place, and vacate our December 1, 2005 judgment.[1] A jury found appellant, Jose Rolando *257 Martinez, guilty of the offense of aggravated sexual assault of a child[2] and assessed his punishment at confinement for 50 years. In two issues, appellant contends that the trial court erred in submitting a jury charge that allowed a conviction upon a disjunctive finding between two separate offenses and in failing to give the jury the required burden of proof instructions regarding extraneous offense evidence. We affirm.
Factual Background
Fabiola Valdez, the complainant's mother, testified that she lived together with appellant and her daughter from another relationship, the three-year-old complainant. When Valdez left for work on the morning of September 14, 2003, appellant was asleep in his bed in the bedroom that he shared with Valdez, and the complainant was asleep in her bedroom. Valdez returned home about 15 to 30 minutes later after realizing that she did not have breakfast food for the children. Upon her return, Valdez did not find the complainant in her own bed. When Valdez then went into the bedroom that she shared with appellant, she found appellant in bed with the sheets covering him "all over to his head." Valdez pulled the sheets off of appellant and saw that he was on top of the complainant. The complainant's dress was pulled up to her waist, she was not wearing any panties, and appellant's erect penis was protruding out of his boxers. Appellant looked frightened and stated that he did not think that Valdez was coming back home and "[he] didn't know what [he] was thinking."
Dr. Margaret McNeese testified that she examined the complainant about four hours after the assault and that the complainant told her that "Roland"[3] touched her vagina and anus with his hands and his genitals "many times." McNeese saw that a portion of the complainant's hymen was missing and that the tissue around the hymen was "very red, intensely red." McNeese also saw that the complainant's anus was "open and gaping and very, very red." McNeese explained that these injuries were "clearly less than 24 hours old."
The Jury Charge
In his first issue, appellant argues that the trial court's charge to the jury violated his right to a unanimous jury verdict because the charge allowed a conviction upon a disjunctive finding between two separate offenses, i.e., the contact of his sexual organ with either the sexual organ or anus of the complainant.
In analyzing a jury charge issue, our first duty is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.2003). If we find error, we then analyze that error for harm. Id. The degree of harm necessary for reversal depends on whether the defendant preserved the error by objection. Id. Reversal is required for a jury charge error when the defendant has properly objected to the charge and we find "some harm" to his rights. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985). *258 When the defendant fails to object or states that he has no objection to the charge, we will not reverse for jury-charge error unless the record shows "egregious harm" to the defendant. Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App.2004); Almanza, 686 S.W.2d at 171. Thus, we review alleged charge error by considering: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal. See Posey v. State, 966 S.W.2d 57, 60 & n. 5 (Tex.Crim.App.1998).
Error in Jury Charge
The application paragraph of the trial court's charge to the jury read, in pertinent part, as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 14th day of September, 2003. . . Jose R. Martinez, did then and there unlawfully, intentionally or knowingly cause the sexual organ of [complainant]. . . to contact the sexual organ of the defendant; or if you find . . . Jose R. Martinez did then and there unlawfully, intentionally or knowingly cause the anus of [complainant] . . . to contact the sexual organ of the defendant, then you will find the defendant guilty as charged in the indictment.
(emphasis added). The jury returned a verdict of "guilty." Appellant argues that the charge denied him his right to a unanimous jury verdict because some jurors may have believed that he only contacted the complainant vaginally while others may have believed that he only contacted the complainant anally.
Texas law requires a unanimous jury verdict in felony criminal cases. TEX. CONST., art. V, § 13; TEX.CODE CRIM. PROC. ANN. art. 36.29(a) (Vernon Supp.2004-2005); see also Molandes v. State, 571 S.W.2d 3, 4 (Tex.Crim.App.1978) (discussing constitutional right to unanimous verdict in felony cases). The unanimity requirement is a complement to and helps in effectuating the "beyond a reasonable doubt" standard of proof. See United States v. Gipson, 553 F.2d 453, 457 n. 7 (5th Cir.1977). When the State charges different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must be instructed that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of the criminal acts. Francis v. State, 36 S.W.3d 121, 125 (Tex.Crim.App.2000). A jury must unanimously agree on each "element" of the offense in order to convict, but need not agree on all the "underlying brute facts [that] make up a particular element." Richardson v. United States, 526 U.S. 813, 817, 119 S. Ct. 1707, 1710, 143 L. Ed. 2d 985 (1999).
A person commits the offense of aggravated sexual assault of a child if the person intentionally or knowingly:
(i) causes the penetration of the anus or female sexual organ of a child by any means;
(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or
(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor.
TEX. PEN.CODE ANN. § 22.021(a)(1)(B) (Vernon Supp.2004-2005). When a jury is charged with alternative theories of committing the same offense, it is appropriate for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted. *259 Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991). However, charging on alternative theories differs from charging on separate offenses involving separate incidents. Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App.2004). The Texas Court of Criminal Appeals' decision in Vick v. State noted that "each section [under section 22.021] usually entails different and separate acts to commit the various, prohibited conduct." 991 S.W.2d 830, 833 (Tex.Crim.App.1999). In Vick, the court concluded that "this specificity reflect[ed] the legislature's intent to separately and distinctly criminalize any act which constitut[ed] the proscribed conduct." Id. Thus, although the same section, 22.021(a)(1)(B), prohibits contact with both a child's sexual organ, subsection (iii), and anus, subsection (iv), the section describes two separate and distinct acts. See Vick, 991 S.W.2d 830, 833 ("Section 22.021 is a conduct-oriented statute; it uses the conjunctive `or' to distinguish and separate different conduct."). Thus, in this case, the jury charge submitted two distinct criminal offenses.
Presented disjunctively, the charge permitted the jury to convict appellant of the offense of aggravated sexual assault of a child if it found that appellant had sexual contact either with the sexual organ or anus of the complainant. The court of criminal appeals has recently stated that if such disjunctive paragraphs contain different criminal acts, then a jury must be instructed that it cannot return a guilty verdict unless it agrees unanimously that the defendant committed one of the acts. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim.App.2005) (designated for publication); see also Francis, 36 S.W.3d at 125 (holding jury charge that allows for non-unanimous verdict concerning what specific criminal act defendant committed is error). Accordingly, we hold that the trial court erred in allowing a conviction upon a disjunctive finding between two separate offenses. See Ngo, 175 S.W.3d at 749; Hendrix v. State, 150 S.W.3d 839, 848-49 (Tex.App.-Houston [14th Dist.] 2004, no pet.); In re M.P., 126 S.W.3d 228, 231 (Tex.App.-San Antonio 2003, no pet.).
Egregious Harm
Having found error in the court's charge, we must determine whether sufficient harm resulted from the error to require reversal. Where, as here, a defendant fails to object to or states that he has no objection to the charge, we will not reverse unless the error was so egregious and created such harm that appellant has not had a fair trial. Almanza, 686 S.W.2d at 157. Appellant asserts that he "lost a valuable right" when the trial court submitted separate offenses in the jury charge and did not require a consensus as to which offense he had committed. Appellant argues that this was harmful error in his case because the jury charge "enabled the jury to possibly return a non-unanimous guilty verdict."
Under the Almanza egregious harm standard, the record must show that a defendant has suffered actual, rather than merely theoretical, harm from jury instruction error. 686 S.W.2d at 174. Egregious harm consists of errors affecting the very basis of the case or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App.1991). Egregious harm is a difficult standard to prove and must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim. App.2002). To determine whether a defendant has sustained egregious harm from a non-objected-to instruction, we consider (1) the entire charge; (2) the state of *260 the evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant information. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996).
In Ngo v. State, the Eastland Court of Appeals held that a trial court's error in permitting a jury charge that allowed a conviction upon a disjunctive finding between three separate offenses to be egregious error under Almanza because: (1) the jury charge permitted a non-unanimous verdict; (2) during its closing argument, the State forthrightly told the jury that it need not be unanimous in its verdict; and (3) "there were contested issues at trial." 129 S.W.3d 198, 201-02 (Tex. App.-Eastland 2004), aff'd, 175 S.W.3d 738 (Tex.Crim.App.2005). In affirming the holding, the court of criminal appeals agreed with the court of appeals' findings but emphasized that "there was more." Ngo, 175 S.W.3d at 750. The court noted that during voir dire, the State, with respect to three disjunctively joined credit card abuse offenses, told jurors
[I]f three of you . . . feel like he stole the credit card and used it, six of you think that he received it and three of you think he presented it, it doesn't matter which one you think he did. It can be a mix and match, whichever one you believe.
Ngo, 175 S.W.3d at 750. Moreover, the Court found that during the defendant's voir dire, when defense counsel attempted to assert that the State must prove all three criminal acts, the State objected, and the trial court told the jurors
There's three ways alleged that the offense can be committed. . . . [T]he State may prove one to the satisfaction of part of the jury, another one to the satisfaction of others, the third one to the satisfaction of another part of the jury.
Id. Thus, in addition to the trial court's and State's misstatements at the very end of the trial, the court recognized that both the State and the trial court had also misstated the law at the very beginning of the case. Id. The court noted that, "the jury was affirmatively told, on three occasions, twice by [the State] and once by the trial judge, that it need not return a unanimous verdict." Id.
Here, our review of the record reveals that the State, during its voir dire examination of the venire panel, briefly commented on the trial court's reading of the indictment as follows:
[N]otice how the judge read two paragraphs. What the laws says [sic] is all I have to prove is one of those. In fact, it's a little bit different in that six of y'all may think he contacted the anus and six of y'all may think he contacted the female sexual organ, as long as the 12 of you agree one of those happened, then you can convict. That's why it's the two pleadings. . . . [A]ll I have to prove is one of them.
Beyond the State's statement during voir dire, our review of the record shows that there was no other comment by the State, the trial court, or the defense regarding the disjunctive jury charge. Furthermore, early in the voir dire, the trial court stated to the prospective jurors, "[Y]ou all have to agree for there to be a verdict. . . . You all have to be in agreement." The six-page jury charge, although containing the disjunctively joined application paragraphs, also instructed the jury that "no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt." The next paragraph re-emphasized, "[t]he prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged." Here, unlike in Ngo, there were *261 at least some instances where the original jury charge error was ameliorated in another portion of the charge or by instructions from the trial court.
We also examine the arguments of the parties and the evidence presented at trial. Throughout the trial, the defense strategy involved impugning the credibility of Valdez and attacking the reliability of the physical evidence. Although conceding that the DNA recovered from complainant "matched" that of appellant's, defense counsel proceeded on a defensive theory that evidence had been mishandled, manipulated, and/or planted by Valdez or another party in order to free Valdez from her relationship with appellant. In support, the defense pointed to Valdez's alleged promiscuity, her continued voluntary contact with appellant after the alleged sexual assault, and her possibly coercive influence on the complainant. Defense counsel also drew the jury's attention to an unknown third person's DNA found on a debris swab taken from the complainant and medical testimony suggesting other possible causes of the trauma observed on the complainant. At the end of her closing argument, defense counsel said to the jury, "your verdict sheet is very short, I'm going to ask you to find [appellant] not guilty of the aggravated sexual assault of a child that he has been charged with." Appellant did not attack the veracity of the complainant's outcry about one allegation in a manner different from the other outcry, nor did he attack the physical evidence supporting one allegation differently than he attacked such evidence supporting the other allegation.
The State's case emphasized the complainant's outcry statements, the forensic evidence, and the eyewitness testimony of Valdez. The evidence of both the anal contact and the vaginal contact was presented in similar fashion. According to the report from the Children's Assessment Center, when asked "where did [appellant] touch you?," the complainant responded by pointing to both her vaginal and anal area. McNeese's examination of the complainant revealed that both her anus and her vagina were both very red and showed signs of penetration. The only "difference" in the evidence regarding the two allegations was the level of certainty with respect to the DNA sample recovered from the anal swab as compared to the vaginal swab.[4] During its closing, the State attacked appellant's defensive theory, saying to the jury, "when you are confronted with overwhelming medical evidence and overwhelming forensic evidence . . . [t]hen you have to come up with a conspiracy theory, a planting-of-evidence theory."
Considering the evidence, as well as the arguments of the parties, we conclude that an individual juror would either have found appellant committed the aggravated sexual assaults or that he had not sexually assaulted the complainant at all. The jury could have either believed the testimony of the complainant's mother, Dr. McNeese, the complainant's outcry testimony, and the physical evidence, or it could have accepted appellant's defensive theory suggesting tampering, manufacturing, and planting of evidence. There was no reason for any individual juror to differ on whether appellant had vaginal or anal contact with the complainant. Although a more precise identification of appellant's semen from the anal swab sample may have made *262 a more persuasive case to jurors for conviction on the anal contact allegation as opposed to the vaginal contact allegation, it does not necessarily follow that the appellant's right to a unanimous jury verdict was implicated by stronger evidence of another mutually non-exclusive offense.
In Ngo, in addition to the disjunctive jury charge and the affirmative comments of the trial court and the State, the court of criminal appeals noted that "under no theory of the evidence in [the] case, could appellant have committed both the original theft by burglarizing Ms. Truong's apartment and have received the stolen credit cards from someone else." 175 S.W.3d at 751-52 (emphasis in original). But in this case, the overwhelming evidence supported both charges. This is not a case where the commission of one offense is mutually exclusive to the commission of a disjunctively joined offense.
In support of his argument that submission of a disjunctive jury charge in an aggravated sexual assault case constitutes egregious harm, appellant relies on Clear v. State, 76 S.W.3d 622, 623-24 (Tex.App.-Corpus Christi 2002, no pet.). However, in Clear, the State, during its closing argument, emphasized that the jurors need not be unanimous in their verdict. Id. The Corpus Christi Court of Appeals concluded that "[g]iven the evidence and this argument by the prosecutor . . . we cannot determine that the jury was unanimous in finding Clear guilty of either penetration offense." Id. at 624. Here, in contrast, beyond the brief statement by the State during voir dire, there was no other comment or argument made regarding the disjunctive jury charge. Furthermore, as discussed above, the arguments of the parties during trial and the state of the evidence in this case demonstrate that appellant did not suffer egregious harm with respect to the disjunctive jury charge.
On these facts, we cannot conclude that the disjunctive jury charge vitally affected appellant's defensive theory, or made the case for conviction or punishment clearly and significantly more persuasive. See Saunders, 817 S.W.2d at 692-93. Moreover, we cannot conclude that the disjunctive jury charge actually denied appellant his right to a unanimous jury verdict.
Accordingly, we hold that the error in the court's charge did not cause appellant egregious harm.
We overrule appellant's first issue.
Extraneous Offenses
In his second issue, appellant contends that the trial court erred at the punishment stage of trial in failing to instruct the jury that it could consider evidence of extraneous offenses only if it believed beyond a reasonable doubt that appellant committed the offenses. Appellant focuses upon the outcry testimony revealed during Dr. McNeese's examination in which the complainant stated that appellant had touched her in the vaginal and anal areas "many times." This testimony was re-offered by the State during the punishment phase of the trial. Appellant contends that this testimony was evidence of extraneous offenses, which should not have been offered into evidence without a limiting instruction.
An extraneous offense is "any act of misconduct, whether resulting in prosecution or not, which is not shown in the charging instrument and which was shown to have been committed by the accused." Worley v. State, 870 S.W.2d 620, 622 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (quoting Hernandez v. State, 817 S.W.2d 744, 746 (Tex.App.-Houston [1st Dist.] 1991, no pet.)). Evidence of multiple occurrences of the defendant's same conduct against the same victim is *263 admissible and such evidence does not amount to evidence of extraneous offenses. Id. at 622-23 (finding, in aggravated sexual assault of a child case, victim's testimony that defendant molested him "at least over a hundred times" did not constitute evidence of extraneous offenses); see also Rodriguez v. State, 104 S.W.3d 87, 91 (Tex. Crim.App.2003) (witness's testimony that defendant delivered cocaine to her "maybe 20 or 30 times" during nine-month period preceding date alleged in indictment was not evidence of extraneous offenses but rather evidence of repeated commission of offense alleged in the indictment).
In this case, the objected-to testimony consisted of acts that were alleged in the indictment. Therefore, the evidence does not amount to evidence of extraneous offenses. Accordingly, we hold that the complainant's statement that appellant molested her many times does not constitute evidence of extraneous offenses and there was no need for a limiting instruction.
We overrule appellant's second issue.
Conclusion
We affirm the judgment of the trial court.
NOTES
[1] After we issued our December 1, 2005 opinion, appellant filed a petition for discretionary review with the Clerk of this Court on December 14, 2005. Within 30 days after a petition for discretionary review has been filed with the clerk of the court of appeals that delivered the decision, a majority of the justices who participated in the decision may modify or correct the court's opinion or judgment. TEX. R.APP. P. 50 (Vernon 2003). If the court's opinion or judgment is modified, the original opinion or judgment must be withdrawn and the modified opinion or judgment must be substituted as the opinion or judgment of the court. Id. The original petition for discretionary review is dismissed by operation of law. Id.
[2] TEX. PEN.CODE ANN. § 22.021(a)(1)(B)(iii), (iv) (Vernon Supp.2004-05).
[3] Appellant is known by his middle name, Roland.
[4] The DNA pattern recovered from the complainant's anal swab occurs in one of 1.771 quadrillion people; thus, both the State's and the defense's DNA analysts agreed that the DNA recovered from complainant's anus belonged to appellant. The DNA recovered from complainant's vaginal swab was consistent with appellant's DNA, however, there was not enough information produced from the testing to confirm it was appellant's DNA. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617118/ | 38 So. 3d 781 (2010)
HARRIS
v.
STATE.
No. 4D08-4381.
District Court of Appeal of Florida, Fourth District.
July 7, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617101/ | 347 N.W.2d 857 (1984)
217 Neb. 139
STATE of Nebraska, Appellee,
v.
Thomas P. ROEPKA, Appellant.
No. 83-669.
Supreme Court of Nebraska.
April 27, 1984.
John C. Schraufnagel of Cronin, Symonds & Schraufnagel, O'Neill, for appellant.
Paul L. Douglas, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.
KRIVOSHA, C.J., WHITE and CAPORALE, JJ., and McCOWN and BRODKEY, JJ., Retired.
CAPORALE, Justice.
Thomas P. Roepka was adjudged guilty, pursuant to a jury verdict, of two counts of possession of a controlled substance, to wit, cocaine and lysergic acid diethylamide. He was placed on 5 years' probation, the terms of which include a 90-day jail term. While Roepka assigns no error to the trial court in his brief, we address one issue on the basis of plain error as we are permitted, at our option, to do. Neb.Rev.Stat. § 25-1919 (Reissue 1979); State v. Ellis, 216 Neb. 699, 345 N.W.2d 323 (1984); Neb. Ct.R. 9 D(1)d (1983). For the reason detailed hereinafter we vacate the judgment of conviction and remand for further proceedings consistent with this opinion.
*858 The relevant facts begin with the circumstance that one Lyle Ruzicka failed to appear as scheduled on September 22, 1980, in the county court for Buffalo County in connection with a prosecution for petty larceny. By virtue of that failure a warrant for his arrest was issued on January 29, 1981. During that month, the State Patrol kept a trailer house located at Reimers Trailer Court in O'Neill, Nebraska, under surveillance because of suspected drug-related activity. At that time they believed that Ruzicka lived at the trailer house.
Early on the morning of May 18, 1981, law enforcement officers served a number of arrest warrants on various individuals as a result of a drug investigation. After serving the drug-related arrest warrants the Holt County sheriff suggested that they all go to the trailer and serve the arrest warrant issued January 29 on Ruzicka.
At approximately 8:45 a.m. on May 18 the Holt County sheriff, the O'Neill police chief and assistant police chief, and two troopers of the Nebraska State Patrol working in the drug enforcement division of that agency arrived at Reimers. Upon their arrival at the trailer court the officers surrounded the trailer house they had previously kept under surveillance. Their knock on the door and acts of identification were answered when Roepka opened the door. The agents asked if Ruzicka was there. Roepka stated that Ruzicka was not there. The officers claim to have asked Roepka if they could come inside and look. One of the troopers testified that no verbal consent was given to enter but that after the door was opened Roepka backed up, indicating his consent to their entry. This same trooper testified that they intended to enter no matter what the response. The sheriff testified that Roepka stated in response to their request for entry, "Come on in and look, he ain't here." Roepka claims to have given no consent to the entry.
The trailer house was a rental unit. Ruzicka, Allan M. Mitchell, and one other roommate began renting the trailer in January of 1980. Ruzicka moved from the trailer to his parents' home in O'Neill on February 18, 1981. At the time of this incident only Mitchell and Roepka were residing at the trailer.
After the officers gained entry to the trailer, they observed marijuana plants and drug paraphernalia, and, not finding Ruzicka, asked consent of Mitchell and Roepka to further search the trailer. This request was refused. Based upon the officers' observations, a warrant was later issued to search the trailer. The search turned up a quantity of cocaine and lysergic acid diethylamide, and resulted in Roepka being charged as stated previously.
The evidence adduced by Roepka on his motion to suppress the evidence seized during the later search included a copy of the testimony offered in support of a similar motion made by Mitchell in connection with Mitchell's prosecution on a similar charge. Both motions were heard by the same district judge. In ruling upon the motion at Mitchell's trial, the judge stated:
The Court finds that the motion to suppress the evidence is overruled and denied because the officers were then executing a lawful warrant for the arrest of Lyle Ruzicka, and the information in their possession indicated that that trailer house probably was his residence, and their execution of or attempt to execute that warrant was lawful, and their presence in the trailer house was lawful, and they were entitled to make any observations which they could make in the process of such attempted execution.
While, in overruling Roepka's motion to suppress, the district judge did not state the reason supporting his decision, we think the basis for it is adequately reflected by his earlier ruling on the identical matter in Mitchell's case.
Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), presented the question of whether an individual's home can be entered by police, without an arrest warrant, in order to make a routine felony arrest. The Court held that such a practice was not constitutionally permissible, and further stated at 603, 100 S.Ct. at 1388: "Thus, for Fourth Amendment purposes, an arrest warrant founded on probable *859 cause implicitly carries with it the limited authority to enter a dwelling in which a suspect lives when there is reason to believe the suspect is within."
In Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981), the question presented was whether an arrest warrant carried with it the authority to enter the home of a third party in order to secure the arrest of the person named in the warrant. The Court concluded that the warrantless search of a third party's home by police officers for a person named in an arrest warrant, absent consent or exigent circumstances, violated the fourth amendment rights of the third party.
The State urges us, and we agree, that there is no need to address the issue of whether Steagald allows the search of a third party's home which police officers reasonably believe is the residence of a person named in an arrest warrant, when in fact such is not the case. The State concedes in its brief at page 2, and we agree, that the officers in this case had no reason to believe that Ruzicka was within the trailer house occupied by Roepka at the time of their search. Even if the trailer house were Ruzicka's residence, the officers' nonconsensual entry without reason to believe Ruzicka was presently therein was not constitutionally permissible, and, thus, the district court's ruling was based upon a faulty premise.
However, the requirement for a search warrant at the time of the initial entry would be waived if that entry were to have been made with consent. Steagald, supra. Since there was no finding by the district court as to whether Roepka consented to the officers' entry to search for Ruzicka, this case must be remanded to the district court for such a finding, because upon such consent is premised the admissibility of the evidence seized in the later search. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617104/ | 623 So. 2d 1056 (1993)
Myra DORMAN
v.
Jeanette JACKSON and Bobby Jackson.
1912016.
Supreme Court of Alabama.
June 11, 1993.
Rehearing Denied September 10, 1993.
G. Rick Digiorgio of Jaffe, Burton & Digiorgio, Birmingham, for appellant.
*1057 R.M. Woodrow of Doster & Woodrow, Anniston, for appellees.
KENNEDY, Justice.
The plaintiff, Myra Dorman, appeals from a summary judgment entered in favor of the defendants, Jeanette Jackson and Bobby Jackson.[1]
On August 20, 1990, Ms. Dorman was injured in an automobile accident; she was a passenger in a car driven by Jeanette Jackson. She was riding in the front of the car in the passenger's seat when Ms. Jackson turned left at an intersection, crossing the northbound lanes of traffic. A car in the northbound lane struck Ms. Jackson's car. The police accident report indicated that Jackson was at fault for failing to yield the right of way to the car in the northbound lane.
At the time of the accident, Dorman and Jeanette Jackson were co-workers. They had ridden to work together several times before the accident. Three weeks before the accident, Dorman's daughter had been the babysitter for Ms. Jackson's son while Ms. Jackson was at work. According to Dorman, Ms. Jackson agreed to drive her own car to work so that Dorman's daughter could use Dorman's car to transport Ms. Jackson's child while she was babysitting. Ms. Jackson did not charge Dorman for the ride to work, and Dorman did not offer to pay Ms. Jackson.
Dorman sued Ms. Jackson, alleging, inter alia, negligence and wantonness. Jackson moved for a summary judgment, arguing that the Guest Statute barred any claim of negligence and contending that there was no evidence of wantonness. The trial court entered a summary judgment in favor of Jackson.
A summary judgment is appropriate only when the moving party shows "that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), A.R.Civ.P. Once the moving party has made a prima facie showing that there is no genuine issue of material fact, the nonmoving party must rebut that showing by presenting "substantial evidence" showing the existence of a genuine issue of material fact. Ala.Code 1975, § 12-21-12. Hope v. Brannan, 557 So. 2d 1208 (Ala.1990). The evidence will be viewed in a light most favorable to the nonmoving party. King v. Winn-Dixie of Montgomery, Inc., 565 So. 2d 12 (Ala.1990).
Dorman argues that the trial court erred in entering the summary judgment. She says the Guest Statute did not bar her claim of negligence, because, she argues, Ms. Jackson received a benefit by giving Dorman a ride. Dorman further argues that Jackson's benefit was in providing Dorman's daughter with a car so that the daughter could take Ms. Jackson's child on outings.
The Alabama Guest Statute, § 32-1-2, Ala. Code 1975, provides:
"The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle."
If the transportation of a rider confers a benefit only on the person to whom the ride is given, and no benefits other than hospitality, goodwill, or the like are conferred on the person furnishing the transportation, then the rider is a "guest." If the transportation
"tends to promote the mutual interest of both [the rider] and the driver for their common benefit, thus creating a joint business relationship between the motorist and his rider, or if the rider accompanies the driver at the instance of the driver for the purpose of having the rider render a benefit or service to the driver on a trip that is primarily for the attainment of some objective of the driver, the rider is a `passenger for hire' and not a `guest.'" *1058 Sellers v. Sexton, 576 So. 2d 172, 174 (Ala. 1991), citing Westbrook v. Gibbs, 285 Ala. 223, 231 So. 2d 97 (1970) (other citations omitted).
We find a question of fact that should be determined by a jury. A jury could consider that Dorman and Ms. Jackson had a business relationship because of the babysitting arrangement. Therefore, we reverse the summary judgment as to the negligence claim and remand for further proceedings on that claim.
The second issue is whether the trial court erred in entering the summary judgment as to the wantonness claim. Dorman argues that Ms. Jackson acted with reckless misconductthat she purposefully crossed the northbound lane of traffic without looking, even though her view was unobstructed. Ms. Jackson contends that she did not see the oncoming car and that any act on her part was merely inadvertent.
"`Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability. Implicit in wanton, willful, or reckless misconduct is an acting, with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury....
"`Negligence is usually characterized as inattention, thoughtlessness, or heedlessness, a lack of due care; whereas wantonness is characterized as an act which cannot exist without a purpose or design, a conscious or intentional act. `Simple negligence is the inadvertent omission of duty; and wanton or willful misconduct is characterized as such by the state of mind with which the act or omission is done or omitted.' McNeil v. Munson S.S. Lines, 184 Ala. 420, 425, 63 So. 992 (1913)."
Central Alabama Elec. Cooperative v. Tapley, 546 So. 2d 371, 379 (Ala.1989) (emphasis added in Tapley).
The evidence indicates that Ms. Jackson slowed down before crossing the northbound lanes of traffic, and she stated that she merely failed to see the oncoming car. The facts here are distinguishable from these in Osborne Truck Lines, Inc. v. Langston, 454 So. 2d 1317 (Ala.1984). In Osborne, a tractor-trailer truck collided with an oncoming vehicle. The truck driver failed to stop or slow down, and there was evidence that the driver was fatigued from the inordinate length of time he had been driving the truck.
The present case is similar to George v. Champion Insurance Co., 591 So. 2d 852 (Ala. 1991), where the defendant driver, while engaged in conversation with passengers in the car, ran a red light and collided with an oncoming vehicle. In George, this Court held that the plaintiff had failed to present substantial evidence of wantonness.
Viewing the evidence in a light most favorable to the plaintiff, we conclude that she failed to present substantial evidence of wantonness. Therefore, the trial court properly entered the summary judgment in favor of Jackson on the wantonness claim.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES and HOUSTON, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
I concur in the Court's affirmance of the summary judgment on the wantonness count, and I write specially only to state specifically why I think that a fact question is presented as to whether the plaintiff was a "guest," within the meaning of Alabama's Guest Statute.
The purpose of Alabama's so-called Guest Statute is succinctly stated in Justice Livingston's dissenting opinion in Blair v. Greene, 247 Ala. 104, 109, 22 So. 2d 834, 837 (1945), as follows:
"The situation that this statute was apparently designed to prevent is well known. As the use of automobiles became almost universal, many cases arose where generous drivers, having offered rides to guests, later found themselves defendants in cases that often turned upon close questions of negligence. Undoubtedly the legislature in adopting this act reflected a certain natural feeling as to the injustice of *1059 such a situation. The terms of the statute should be construed with their intent and purpose in view, and the purpose and object that the legislature had in mind sometimes throws light upon the meaning of the language used."
(Livingston, J., dissenting.)
This Court has stated also that "the guest statute is in derogation of the common law and as such [it] should be strictly construed." Walker v. Garris, 368 So. 2d 277 at 279 (Ala. 1979), citing Green v. Jones, 136 Colo. 512, 319 P.2d 1083 (1957).
Because the term "guest" is not defined in the statute, the duty to define that term falls upon the Court. Harrison v. McCleary, 281 Ala. 87, 199 So. 2d 165 (1967); Sullivan v. Davis, 263 Ala. 685, 83 So. 2d 434 (1955). This Court has held that "[i]t is a question of fact whether one is a guest within the statute." Roe v. Lewis, 416 So. 2d 750 (Ala.1982), citing Boggs v. Turner, 277 Ala. 157, 168 So. 2d 1 (1964), for that proposition of law. As the Court said in Roe, "A multitude of factual situations exists to which the statute must be applied." 416 So.2d at 752. Quoting from an earlier Alabama decision, the Court listed some of those factual situations:
"The commercial and social relationships that can exist between the driver of an automobile and his passenger are almost as numerous and varied as human activity itself. At one extreme we have the `hitchhiker' guest who clearly falls within the purview of the statute. At the other extreme we have the passenger who pays the driver to be transported to a particular place and who is unquestionably beyond the scope of the statute. Between these two extremes the dividing line may at times become illusory and shadowy. It is sometimes necessary to enter into a detailed examination of the present and former relations between driver and passenger; implied and expressed arrangements made between them as to the conduct of the particular trip; the purpose of the mission; the benefits accruing to the driver and passenger from the expedition; and any other factors that bring into proper focus the true status of the parties at the time of the accident which give[s] rise to the legal action."
416 So.2d at 752-53 (quoting Sullivan v. Davis, 263 Ala. 685, at 687-88, 83 So. 2d 434, at 436 (1955)).
I can appreciate the defendant's argument that the plaintiff's daughter and the defendant's child are not parties to this action, but, using the quote from Sullivan v. Davis as a guideline, I find sufficient evidence to present a fact question whether the defendant was deriving some benefit from having the plaintiff ride with her. Consequently, I agree that the summary judgment was improper on the negligence claim.
NOTES
[1] The plaintiff has presented no arguments as to Bobby Jackson. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617127/ | 190 S.W.3d 52 (2005)
Ronald J. HETTLER, Robin Hettler, and Cornwall Insurance Agency, Inc. d/b/a Hettler-Brenholtz Insurance, Appellants,
v.
The TRAVELERS LLOYDS INSURANCE COMPANY, Appellee.
No. 07-04-0056-CV.
Court of Appeals of Texas, Amarillo.
October 6, 2005.
Rehearing Overruled November 16, 2005.
*53 Richard L. Ellison, Richard L. Ellison, P.C., Kerrville, I. Nelson Heggen, Houston, for Appellant.
Thomas D. Farris, Rhett J. Hubbard, Peterson Farris Pruitt & Parker, P.C., Amarillo, for Appellee.
*54 Before QUINN, C.J., and REAVIS, J. and BOYD, S.J.[1]
OPINION
DON H. REAVIS, Justice.
Presenting five points of error, appellants Ronald J. Hettler, Robin Hettler, and Cornwall Insurance Agency, Inc. d/b/a Hettler-Brenholtz Insurance (collectively the Hettlers) contend the trial court erred in rendering summary judgment that appellee The Travelers Lloyds Insurance Company (Travelers) did not have the duty to provide the Hettlers a defense in a suit brought by William David Brenholtz nor a duty to indemnify them for damages awarded. The judgment also denied them any relief on their claims under articles 21.21 and 21.55 of the Insurance Code, their breach of duty of good faith and fair dealing claim, and their claim for attorney's fees. By their first three points of error, the Hettlers contend the trial court erred in determining Travelers had no duty to defend Brenholtz's complaints regarding (1) wrongful eviction,[2] (2) libel and slander, and (3) denial of use of property and, by the remaining two points they contend the trial court erred in (4) applying the employment-related practices exclusion to exclude coverage and (5) holding that Travelers had no duty to indemnify.[3] We affirm.
Ronald J. Hettler and Brenholtz began doing business together as Hettler-Brenholtz Insurance Agency on June 1, 1994, per an informal oral agreement. Ronald was president, Brenholtz was vice-president, and Robin Hettler was an officer of the corporation. On September 9, 1994, the agency obtained insurance coverage for three years under a Commercial General Liability Policy issued by Travelers. Thereafter, on November 20, 1996, Brenholtz prepared a summary of his version of the oral agreement which was initialed by Brenholtz and signed by Ronald. Handwritten comments on the November 20 summary indicated the parties contemplated it would be sent to an attorney. On February 13, 1997, Ronald delivered to Brenholtz his last paycheck along with a handwritten letter terminating his services as of Friday, the 14th stating "this isn't working." By the letter, Ronald also requested Brenholtz to submit outstanding expenses for reimbursement, and further proposed a purchase agreement.[4]
Brenholtz promptly filed suit against the Hettlers and the corporation seeking temporary relief. Then, as material here, by his amended petition, Brenholtz sought an accounting and damages and alleged claims for breach of contract, fraud, conversion, and interference with business relations. After Travelers declined to defend the Brenholtz suit, the Hettlers proceeded with their defense and filed this action against Travelers seeking damages for failure to defend and asserting claims *55 under articles 21.21 and 21.55 of the Insurance Code, breach of duty of good faith and fair dealing, and attorney's fees.[5] By its first amended answer and counterclaim for declaratory judgment, Travelers asserted the allegations in Brenholtz's pleading did not require Travelers to defend the action and that the affirmative allegations were not covered due to exclusions in the policy. Travelers also sought a declaratory judgment for no duty to defend and for attorney's fees. As is material here, the pleadings of the parties included the following contentions:
Hettler Travelers
Travelers had a duty to defend Brenholtz's Brenholtz's allegations do not present a
claims of fraud, conversion, and interference claim for an accidental occurrence, but constitute
with business relationships. intentional and expected acts.
Asserted article 21.21 claims. Brenholtz's allegations do not implicate
"property damage" or "bodily injury"
Asserted article 21.55 claims. as defined in the policy.
Breach of duty of good faith and fair The events asserted by Brenholtz arise from
dealing. the termination of his employment.
Claim for attorney's fees. Counterclaim
Declaratory judgment that Travelers owed
no duty to defend and indemnify.
Relevant policy provisions exclude coverage.
No duty to defend or indemnify.
Claim for attorney's fees.
After Travelers filed its traditional motion for summary judgment, the Hettlers filed their motion for partial summary judgment. Grounds for each included the following:
Hettler Travelers
Asserted the following allegations per Hettler's No duty to defend.
letter triggered the duty to defend
(summarized):
Hettler's letter of February 13, 1997, No coverage based on policy definition of
terminating employment and advising that "personal injury."
staff would be instructed not to allow
Brenholtz on the premises, that the locks Exclusion for employment-related practices.
would be changed, and the police would be
called.
Brenholtz was intentionally and forcibly denied Travelers owed no duty to defend Hettler's
access/possession of his customer files. claims under articles 21.21 and 21.55 and his
claims for breach of duty of good faith and
fair dealing have no merit.
Wrongfully retaining Brenholtz's files constituted No duty to indemnify.
conversion of property.
*56
Denial of access to files deprived Brenholtz
of the ability to carry on his business and
wrongfully denied him the opportunity to
carry on customer relations.
On May 2, 2003, after considering competing motions for summary judgment, the trial court signed an interlocutory order that Travelers had no duty to defend the Hettlers under the policy and had no duty to indemnify them for any sums of money awarded against them. The order also denied the Hettlers' claims under articles 21.21 and 21.55 and for good faith and fair dealing and declared Travelers had no duty to defend or indemnify the Hettlers. Then, following a nonjury determination on the merits, the trial court signed its judgment that Travelers recover attorney's fees in the amount of $21,367.35 on January 13, 2004.[6]
Standard of Review
In reviewing a summary judgment, we must apply the standards established in Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985), which are:
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.
3. Every reasonable inference must indulged in favor of the nonmovant and any doubts resolved in its favor.
When both parties move for summary judgment, each party must conclusively establish it is entitled to judgment as a matter of law, Guynes v. Galveston, 861 S.W.2d 861, 862 (Tex.1993). Neither party can prevail simply by the other party's failure to discharge its burden. Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85, 87 (Tex.1954). If the trial court grants one summary judgment and denies the other, the appellate court may render the judgment the trial court should have rendered. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). Where, as here, the order granting summary judgment does not specify the grounds on which the trial court relied for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Allstate Ins. Co. v. Hicks, 134 S.W.3d 304, 307 (Tex.App.-Amarillo 2003, no pet.).
Duty to Defend
An insurer's duty to defend the insured is determined by applying the "eight corners" rule, under which we look only to the pleadings and the insurance policy to determine whether the duty to defend exists. Cluett v. Medical Protective Co., 829 S.W.2d 822, 829 (Tex.App.-Dallas 1992, writ denied). The duty to defend is not affected by the facts of the case ascertained before, during, or after the suit, and we do not consider the truth or falsity of the allegations in the underlying pleadings. Cullen/Frost Bank v. Commonwealth Lloyd's, 852 S.W.2d 252, 255 (Tex.App.-Dallas 1993, writ denied). The duty to defend arises if the factual allegations *57 against the insured, when fairly and reasonably construed, state a cause of action potentially covered by the policy. Id. In determining the applicability of provisions of the policy, we focus on the facts alleged in Brenholtz's petition that show the origin of the damages, not the legal theories asserted for recovery and indulge a liberal interpretation of the meaning of those allegations. See id. at 255. Any doubt as to whether the complaint states a covered cause of action is resolved in the insured's favor. Cullen/Frost Bank, 852 S.W.2d at 255. However, we do not look outside the pleadings or imagine factual scenarios which might trigger coverage. Nat. Union Fire v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 142 (Tex. 1997).
The issues for determination in the trial court were framed by the pleadings of the parties. Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex.1982). By our analysis, we will consider the points of error in the context of the theory on which the case was tried in the trial court and on issues that were preserved and presented for review. American Mut. Liability Ins. Co. v. Parker, 144 Tex. 453, 191 S.W.2d 844, 848 (1946).
By point of error one, the Hettlers contend the trial court erred in determining that Travelers had no duty to defend Brenholtz's wrongful eviction complaint. We disagree. Although they alleged in the trial court that Travelers had the duty to defend based on claims of fraud, conversion, and interference with business relationships, here, however, they only contend that the duty to defend existed under the wrongful eviction coverage of the policy.
Under coverage B pertaining to personal injury, the policy provides coverage for "wrongful eviction." Otherwise stated, coverage does not extend to just any eviction but, where applicable, applies only to cases alleging a wrongful eviction. As material here, the policy provides coverage for the wrongful eviction from "room, dwelling, or premises that a person occupies by or on behalf of its owner, landlord, or lessor."[7] The Hettlers argue the letter to Brenholtz "purporting to terminate" his employment and informing him the staff would be instructed to deny him entry on the premises, the locks would be changed, and the police would be called if he showed up at the office "triggered" the "wrongful eviction" coverage. However, there are no allegations in Brenholtz's petition asserting any rights in any "room, dwelling, or premises," co-tenancy, joint leasehold, or otherwise. In Decorative Center of Houston v. Employers Casualty Co., 833 S.W.2d 257, 261 (Tex.App.-Corpus Christi 1992, writ denied), the court held this provision was intended to cover only landlord-tenant situations. The facts relied on by the Hettlers to trigger this coverage do not suggest that Brenholtz claimed a superior right of occupancy, an interest in the premises, or his denial of access to the premises. See Patel v. Northfield Insurance Company, 940 F. Supp. 995, 1001-02 (N.D.Tex.1996). Also, Brenholtz did not allege facts which, if true, would render any eviction wrongful. The Hettlers' first point of error is overruled.
By their second point, the Hettlers contend the trial court erred in determining that Travelers had no duty to defend Brenholtz's claims of libel and slander. We disagree. We commence our analysis of this point by reviewing the denial of coverage in National Union Fire. 939 S.W.2d at 139. The Court there held that an allegation that the driver negligently discharged a firearm *58 injuring the plaintiff did not trigger the carrier's duty to defend. In its analysis, the Court carefully noted that even given a liberal interpretation, no duty to defend was triggered because the pleadings did not allege the injury was caused by an accident resulting from the use of a covered auto.
The law of libel has been codified in sections 73.001-.006 of the Texas Civil Practice & Remedies Code Annotated (Vernon 2005). In a libel action, the first question for determination is whether the words used are reasonably capable of a defamatory meaning which is a question of law. Granada Biosciences, Inc. v. Barrett, 958 S.W.2d 215, 222 (Tex.App.-Amarillo 1997, pet. denied). Brenholtz did not allege any facts nor describe the alleged statements which the Hettlers suggest are reasonably capable of a defamatory meaning. Disregarding the conclusions of defamation, slander, libel, and invasion of privacy, Brenholtz's allegation that the Hettlers contacted his customers at a time when he was unable to obtain access did not contain the text of any statements made, defamatory or otherwise. Point of error two is overruled.
By their third point, the Hettlers contend the trial court erred in determining that Travelers had no duty to defend the Brenholtz's denial of use of property claim. By their reply brief, the Hettlers concede the property damage issue is not before this Court. Accordingly, their third point is overruled.
By the fourth point, the Hettlers contend the trial court erred in applying the employment-related practices exclusion. However, our disposition of their first two points pretermits our consideration of this point.
Duty to Indemnify
By their fifth point, the Hettlers assert error by the trial court in holding that Travelers had no duty to indemnify them. We disagree. The duty of an insurance carrier to defend a suit is separate and distinct from the duty to indemnify. Utica Nat. Ins. Co. v. American Indemnity, 141 S.W.3d 198, 203 (Tex.2004). Also, a party seeking indemnity has the burden to prove coverage if the insurer contests coverage. Id. By its counterclaim, among other things, in addition to seeking a declaration that it did not have the duty to defend Brenholtz's suit, Travelers also sought a determination that it did not have the duty to indemnify the Hettlers for any damages awarded. Relying on the jury's findings supporting a judgment in favor of Brenholtz against the Hettlers, Travelers sought summary judgment that it had no duty to indemnify the Hettlers. However, the Hettlers did not file any objection or response to the ground asserting no duty to indemnify.
Issues not expressly presented to the trial court by written response or otherwise, may not be considered on appeal as grounds for reversal. Tex.R. Civ. P. 166a(c); McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex.1993), Moreover, the Hettlers do not support their contention by argument or authorities as required by Rule 38.1(h) of the Texas Rules of Appellate Procedure. See also Howell v. Murray Mortg. Co, 890 S.W.2d 78, 81 (Tex.App.-Amarillo 1994, writ denied). Point of error five is overruled.
Accordingly the judgment of the trial court is affirmed.
NOTES
[1] John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
[2] The Hettlers' amended petition does not include an allegation that Travelers had the duty to defend any claim for wrongful eviction.
[3] The Hettlers do not present a point of error contending the trial court erred in awarding Travelers attorney's fees in the amount of $21,367.35.
[4] Brenholtz's summary of the oral agreement and Ronald's letter were attached to Brenholtz's petition as exhibits. Among other things, the letter also stated Brenholtz was no longer an employee, the staff had been instructed to deny him entry on the premises, the locks had been changed, the police would be called if he showed up, and "[i]f you elect not to take this offer, then I will instruct staff to run copies of files, and mail them or deliver them to your home."
[5] The Hettlers did not seek a declaratory judgment.
[6] The Hettlers did not challenge by point of error the judgment of the trial court denying their claims under articles 21.21 and 21.55, and their good faith and fair dealing claim or the award of attorney's fees to Travelers.
[7] See Section V Definitions, 10. c. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617142/ | 190 S.W.3d 275 (2004)
87 Ark. App. 263
Jimmy LINTON
v.
ARKANSAS DEPARTMENT OF CORRECTIONS and Public Employee Claims Division.
No. CA 03-1195.
Court of Appeals of Arkansas, Division II.
September 1, 2004.
*276 R. Theodore Stricker, Jonesboro, for Appellant.
Richard S. Smith, Little Rock, for Appellees.
ANDREE LAYTON ROAF, Judge.
Appellant Jimmy Linton appeals the Workers' Compensation Commission's ("Commission") decision affirming and adopting the Administrative Law Judge's ("ALJ") findings and denying him compensation on the basis that he failed to prove by a preponderance of the evidence that he sustained an injury in the course of and arising out of his employment with appellee Arkansas Department of Correction ("ADC"). On appeal, Linton argues that the Commission erred in denying him compensation where his injury falls within an exception to the "going and coming rule," because he was on a special errand for his employer, he was paid for his travel time, and he was a law-enforcement officer. We affirm.
Linton had been employed by the ADC as a correctional officer since 1988. On January 6, 2000, he was told by his supervisor, *277 Joe Porchia, to attend a required staff meeting at 6:30 a.m. the next morning, January 7, which was Linton's day off. Linton was being promoted to the position of captain, and this announcement was to be made at the meeting. Linton testified that he was requested to dress in his uniform. While driving from his home to his normal place of employment at the Mississippi County Work Release Center on the morning of January 7 to attend the meeting, Linton was involved in a one-vehicle accident at approximately 6:00 a.m. and sustained serious injuries. Linton is now paralyzed from the waist down and is confined to a wheelchair. Linton filed a claim for workers' compensation benefits, which was controverted by the ADC. The ADC argued that Linton was not performing employment services within the meaning of the law at the time of the accident.
At the hearing, Linton testified that his normal work hours were 5:45 a.m. until 6:00 p.m. when he worked the day shift. He stated that he was on call at all times. Linton further testified that he understood that if he was called in on a day off to attend a meeting, such as on January 7, 2000, he would be paid from the time he left home until he arrived back home. He elaborated that if the meeting lasted for one hour, he would put down two hours on his time sheet so that he would be compensated for his travel time. Linton verified that he did not specify this as travel time and that he was not reimbursed for travel. He stated that this was the policy and that his supervisor, Mr. Porchia, had advised him to add the extra hour to the time sheet. Linton testified that he considered himself to be a law-enforcement officer and stated that he was certified as such in 1978, although he admitted that he was not currently certified.
Walter Todd and Kennett Bassett, retired employees of the ADC, testified that they were paid for their travel time when they attended a meeting on their day off and that they were told by their supervisors to include their travel time on their time sheets. Todd, who had been in charge of time sheets, testified that this was the written policy in the ADC manual.
Porchia testified that Linton was told to be at the staff meeting at 6:30 a.m. on January 7, 2000, for the purpose of announcing his promotion to captain, which would not take effect until the following Monday, January 10. According to Porchia, Linton was a correctional officer and not a law-enforcement officer. Porchia testified that Linton was not authorized to stop speeders on his way to work or to investigate accidents. Although the correctional officers could occasionally be called in the event of a natural disaster, Porchia stated that this was only to supervise a team of inmates providing assistance.
Porchia also testified that employees are not paid for travel time when they come to meetings on their day off and that he was not aware employees were adding an extra hour to their time sheet on these occasions. The ADC's policy manual was introduced into evidence, which showed that travel during normal working hours on regularly scheduled working days is work time, as well as travel performed on non-work days during the same hours. However, employees are not compensated for their travel outside their normal working hours on non-work days. Porchia testified that although Linton had often worked from 5:45 a.m. until 6:00 p.m. when on the day shift, on the Wednesday and Thursday before the accident, his schedule had changed to eight-hour shifts, from 7:00 a.m. until 4:00 or 4:30 p.m. Porchia stated that these were the hours for an administrative position and that this would have been Linton's new schedule as captain.
*278 Following the evidence, the ALJ found that Linton had failed to prove by a preponderance of the evidence that he sustained a compensable injury in the course of and arising out of his employment with the ADC. The Commission affirmed and adopted the findings of the ALJ, and Linton now appeals from this decision.
Linton argues on appeal that his claim is compensable and arose out of and in the course of his employment because it falls within the following exceptions to the "going and coming rule:" (1) he was on a special errand for his employer; (2) he was paid for his travel time; (3) he was a law enforcement officer.
When reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark.App. 69, 110 S.W.3d 306 (2003). This court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal is not whether the appellate court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, the appellate court must affirm its decision. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). Where a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Clardy v. Medi-Homes LTC Serv. LLC, 75 Ark.App. 156, 55 S.W.3d 791 (2001).
A "compensable injury" is defined as an accidental injury causing internal or external physical harm to the body arising out of and in the course of employment. Ark.Code Ann. § 11-9-102(4)(A) (Supp. 2003). Act 796 of 1993 redefined the term "compensable injury" to exclude an injury that was inflicted upon the employee at a time when employment services were not being performed. Olsten Kimberly Quality Care v. Pettey, 55 Ark.App. 343, 934 S.W.2d 956 (1997); Ark.Code Ann. § 11-9-102(4)(B)(iii) (Supp.2003). The same test is used to determine whether an employee was acting within the course of employment at the time of the injury as is used when determining whether an employee was performing employment services. Privett v. Excel Specialty Prods., 76 Ark. App. 527, 69 S.W.3d 445 (2002). The test is whether the injury occurred within the time and space boundaries of the employment while the employee was carrying out the employer's purpose or advancing the employer's interests directly or indirectly. Id.
An employee is generally not said to be acting within the course of employment when he is traveling to or from the workplace, and thus, the "going and coming rule" ordinarily precludes compensation for injuries sustained while an employee is going to or returning from his place of employment. Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark.App. 35, 13 S.W.3d 916 (2000); City of Sherwood v. Lowe, 4 Ark.App. 161, 628 S.W.2d 610 (1982). The reason for this general rule is that all persons, including employees, are subject to the recognized hazards of travel to and from work in a vehicle. City of Sherwood, supra. However, there are exceptions to the "going and coming rule" where the journey itself is part of the *279 employment service, such as traveling men on a business trip and employees who must travel from job site to job site. Campbell, supra. The court in Campbell also noted that whether an employer requires an employee to do something has been dispositive of whether that activity constituted employment services. Id.
Linton first argues that he was within the course of his employment while driving to his meeting on his day off because he was performing a "special errand" for his employer by attending the required meeting. The "special errand" exception has previously been recognized by our appellate courts in Brooks v. Wage, 242 Ark. 486, 414 S.W.2d 100 (1967), and Lepard v. West Memphis Machine & Welding, 51 Ark.App. 53, 908 S.W.2d 666 (1995). Linton also cites the decision in Frank Lyon Co. v. Oats, 225 Ark. 682, 284 S.W.2d 637 (1955), as support for his argument. In that case, the claimant was awarded compensation for his injuries sustained in an automobile accident that occurred when the claimant was returning from an out-of-town sales meeting required by his employer. Id. However, that case awarded compensation based on the fact that the claimant was a traveling salesman and did not discuss the "special errand" exception.
As is argued by the ADC, it is not clear that the "special errand" exception is still valid after the passage of Act 796 of 1993, which revised the definition of a "compensable injury" and required that the workers' compensation statutes now be strictly construed. For example, in Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997), in which the claimant was a teacher who was injured when she slipped on ice in the employer's parking lot, the claimant was denied benefits on the basis that "merely walking to and from one's car, even on the employer's premises," does not qualify as performing employment services. Id. at 164, 943 S.W.2d 608. The court stated that the premises exception to the "going and coming rule" would have applied in that situation under prior law, but that since the 1993 amendment to the workers' compensation statutes, this exception has been eliminated. Id.
There are no Arkansas cases expressly applying the "special errand" exception to injuries sustained after 1993, although in Fisher v. Poole Truck Line, 57 Ark.App. 268, 944 S.W.2d 853 (1997), the claimant was awarded benefits for injuries sustained in a car accident while returning to his employer's premises after retaking a required urine test. This case can be distinguished from Fisher, as the claimant in that case had reported to work in order to obtain a work assignment when he was informed that he had to retake the urine test before receiving the assignment. After retaking the test, the claimant was delivering the results to his employer when he was involved in the car accident. In this case, Linton was driving to work at his normal place of employment when he was involved in the accident. There was testimony that ADC employees were often required to attend these staff meetings, and Linton was not performing any sort of special errand or other service for his employer other than reporting to the meeting.
Linton argues that because he was required to attend the staff meeting and because his attendance at the meeting benefited his employer, he was performing employment services at the time of his accident. However, it is essential to every employer that its employees come to work, and merely traveling to and from the workplace is not an activity covered under our workers' compensation statutes. Linton also contends that traveling to the *280 meeting on his day off distinguishes this situation from other cases in which compensation was denied and asserts that this extra day of travel increased the "quantity" if not the "quality" of the risk. Linton does not cite to any controlling authority for this proposition, and we do not find this argument to be persuasive. Although he cites cases from other jurisdictions that have awarded benefits to employees who were performing some employment service on their day off, it appears that none of these jurisdictions have a similar statutory requirement that employment services are being performed at the time of the injury. See Allen v. Board of Selectmen of Weymouth, 15 Mass.App.Ct. 1009, 448 N.E.2d 782 (1983); Indiana Toll Road Comm. v. Bartusch, 135 Ind.App. 123, 184 N.E.2d 34 (1962); Benjamin H. Sanborn Co. v. Industrial Comm., 405 Ill. 50, 89 N.E.2d 804 (1950). It is also not clear that these jurisdictions require strict construction of their workers' compensation statutes, as in this state.
In addition, none of these cases involve the same situation as in the present case, where an employee is driving to a meeting held at his normal place of employment on his day off. In fact, in McDaniel v. Bus Terminal Restaurant Management Corp., 271 S.C. 299, 247 S.E.2d 321 (1978), the claimant was denied compensation under facts very similar to this case. The claimant was attending a required meeting at her normal place of employment, and she was involved in a car accident on the way home from the meeting. Id. The court held that the claimant was not on a "special errand" for her employer and that her injuries did not arise out of or in the course of her employment. Id. In sum, the Commission did not err in denying compensation to Linton on this basis.
Linton next argues that he was to be paid for his travel time to and from the meeting, bringing his activities within the course of his employment. While the payment of compensation is not necessarily conclusive to the issue of whether employment services are being performed, it is a factor to be considered. See Olsten Kimberly Quality Care v. Pettey, supra. However, in this case, there was substantial evidence from which the Commission could conclude that Linton was not being paid for his travel time to and from the January 7 meeting. Linton's supervisor, Porchia, testified that the employees were not compensated for travel time, and the ADC policy manual introduced into evidence stated that employees were only compensated for travel on their days off when the travel occurred during their normal hours of employment. Although Linton had worked from 5:45 a.m. until 6:00 p.m. on previous occasions, Porchia testified that on the Wednesday and Thursday before the accident, Linton was assigned to the administrative shift, from 7:00 a.m. until 4:00 or 4:30 p.m., and that this was to be Linton's new shift in his position of captain. The meeting on January 7 started at 6:30 a.m., and Linton's accident occurred just after 6:00 a.m. Thus, there was substantial evidence to support the ALJ's finding, which was adopted by the Commission, that Linton was not traveling during his normal work hours at the time of the accident. Although Linton and two other retired employees testified that they were normally compensated for travel time by putting an extra hour on their time sheet, it was for the Commission to resolve this conflicting evidence and to weigh the credibility of the witnesses. Searcy Indus. Laundry, Inc. v. Ferren, supra.
In his final argument, Linton contends that his status as a law-enforcement officer excepts his activities from the "going and coming" rule and brings him within the course of his employment. As support *281 for his argument, Linton cites City of Sherwood v. Lowe, supra, in which a police officer, on his way to work while wearing his uniform and riding his personal motorcycle equipped with police blue lights, was killed in a car accident and awarded compensation. In that case, the court found that there was an exception to the "going and coming" rule for police officers, who are on duty twenty-four hours a day and may at any moment be called into service. Id. The court stated that the City of Sherwood derived a benefit from the claimant's presence on city streets in his uniform and operating a police-equipped vehicle. Id.
The present case is clearly distinguishable. Not only was Linton in his personal vehicle at the time of the accident, Porchia testified that Linton was not considered to be a law-enforcement officer and that, as a correctional officer, Linton did not have authority to stop speeders or investigate accidents. While Linton was on duty at all times, this was only in the event he was called in by the ADC because of some problem at the correctional facility. Although Linton testified that he had previously been certified as a law-enforcement officer, he admitted that he had not kept up his certification. Thus, the law-enforcement exception to the "going and coming" rule does not apply in this case, and the Commission's decision denying Linton compensation on the basis that he did not prove that he sustained a compensable injury in the course of and arising out of his employment is supported by substantial evidence. We affirm.
Affirmed.
VAUGHT and BAKER, JJ., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3040190/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2501
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Daniel Villalobos-Delgado, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: April 18, 2006
Filed: April 19, 2006
___________
Before MELLOY, FAGG, and BENTON, Circuit Judges.
___________
PER CURIAM.
Daniel Villalobos-Delgado appeals the 120-month prison sentence the district
*
court imposed after Villalobos-Delgado pleaded guilty to a drug-conspiracy charge.
On appeal, counsel has moved to withdraw and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), in which counsel raises a challenge to the sentence
imposed.
*
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
The sentencing challenge fails, because in his plea agreement Villalobos-
Delgado specifically agreed to receive a sentence of 120 months imprisonment. See
United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995) (defendant who explicitly
and voluntarily exposes himself to specific sentence may not challenge that
punishment on appeal).
We have carefully reviewed the record in accordance with Penson v. Ohio, 488
U.S. 75 (1988), and have found no nonfrivolous issues. Accordingly, we affirm the
district court’s judgment, and we grant counsel leave to withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2587974/ | 205 P.3d 131 (2009)
IN RE MARRIAGE OF CORBIN.
No. 82255-7.
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/1617154/ | 38 So. 3d 632 (2010)
THE MISSISSIPPI BAR
v.
Kimberly A. CASTLE.
No. 2007-BD-00594-SCT.
Supreme Court of Mississippi.
June 17, 2010.
ORDER OF DISBARMENT
JAMES W. KITCHENS, Justice.
¶ 1. This matter is before the Court, en banc, on the formal complaint by the Mississippi *633 Bar pursuant to Rule 6 of the Rules of Discipline for the Mississippi State Bar, seeking disbarment of Kimberly A. Castle for conduct related to her felony conviction in the United States District Court for the Southern District of Mississippi. As Castle's conviction has been affirmed by the United States Court of Appeals for the Fifth Circuit, and Castle filed no petition for writ of certiorari in the United States Supreme Court within the time permitted, we order that Kimberly A. Castle be disbarred.
I.
¶ 2. The following facts are taken from United States of America v. Stalnaker, 571 F.3d 428 (5th Cir.2009).
¶ 3. Kimberly A. Castle, among others, engaged in a mortgage-fraud operation in which inexpensive real property was obtained through various fraudulent acts and sold at inflated prices. If a prospective buyer was unable to purchase the property honestly, Castle and her co-conspirators would forge documents and/or inflate financial information necessary to obtaining financing for the buyer. Castle would handle the loan closings for both the initial purchase of the property and the inflated resale of the property. At the closings, the mortgage company would wire Castle the money to be used for the purchase of the property, and Castle would transfer the money to a co-conspirator, who would use a portion of the money to make the down payment on the property being sold. This allowed Castle and others to entice buyers with a no-money-down promise. A portion of these funds also was used to pay buyers for their participation in the scheme.
¶ 4. Ultimately, one of the recruited home buyers went to the police with closing papers in which Castle had inflated the purchase price of the home and the financial information of the buyer. This information led to a federal indictment charging Castle and twelve others with bank fraud, wire fraud, conspiracy to commit money laundering, and conspiracy to commit bank fraud, wire fraud, and submission of false statements. Ten of Castle's codefendants pled guilty, and Castle, Kenneth Stalnaker, and Richard Lucas were tried in the United States District Court for the Southern District of Mississippi. Castle was found guilty of conspiracy to defraud the United States (count 1) in violation of 18 U.S.C. Section 371, frauds and swindles (counts 3-11) in violation of 18 U.S.C. Section 1343, and money laundering (count 12) in violation of 18 U.S.C. Section 1956(h). The bank-fraud charge (count 2) was dismissed for lack of jurisdiction. Following her conviction, Castle was sentenced to a term of forty-eight months for count one and a term of forty-eight months for counts three through twelve, the sentences to run concurrently. Castle also was sentenced to three years of post-release supervision for count one and five years of post-release supervision for counts three through twelve, to run concurrently.
¶ 5. Following Castle's conviction, the Mississippi Bar filed a formal complaint pursuant to Rule 6 of the Rules of Discipline for the Mississippi State Bar, attaching the criminal judgment against Castle to the complaint. The Bar also filed a motion to suspend Castle indefinitely pending her appeal, to strike Castle from the Bar roll, and to suspend and stay the disciplinary proceedings until the conclusion of Castle's appeal. Castle did not respond to either of these pleadings, but her attorney acknowledged that he had received a copy of the summons and an attested copy of the formal complaint. This Court entered an order granting the Bar's motion on May 31, 2007.
*634 ¶ 6. On August 18, 2009, the United States Court of Appeals for the Fifth Circuit affirmed Castle's conviction and sentence, and on January 12, 2010, the Mississippi Bar filed the motion now before us, a motion requesting Castle's disbarment, attaching to the motion the judgment of the United States Court of Appeals for the Fifth Circuit affirming Castle's conviction. Again, Castle did not respond to the Bar's motion, nor did she file a petition for writ of certiorari with the United States Supreme Court.
II.
¶ 7. The Supreme Court of Mississippi has exclusive and inherent jurisdiction over matters pertaining to discipline of attorneys licensed in Mississippi. Rule 1, Rules of Discipline for the Mississippi Bar. Although Castle currently is suspended from the practice of law in Mississippi for nonpayment of Bar dues, she nonetheless is a member of the Mississippi Bar and thus is subject to the disciplinary jurisdiction of this Court.
Rule 6 provides:
(a) Whenever any attorney subject to the disciplinary jurisdiction of the Court shall be convicted in any court of any state or in any federal court ... a certified copy of the judgment of conviction... shall be presented to the Court by Complaint Counsel and shall be conclusive evidence thereof. The Court shall then forthwith strike the name of the attorney and order his immediate suspension from the practice of law.
...
(d) When time for appeal from judgment or conviction provided above expires or all appeals have been concluded without reversal, Complaint Counsel shall certify that result to the Court, and the Court shall forthwith enter an order of disbarment.
Rule 6, Rules of Discipline for the Mississippi Bar.
¶ 8. Given that Castle's conviction of a felony in the federal district court was affirmed on appeal, and Castle has exhausted the appellate process, Rule 6 requires this Court to disbar Castle from the practice of law in Mississippi.
III.
IT IS THEREFORE, ORDERED, ADJUDGED, and DECREED as follows:
1. Kimberly A. Castle is hereby permanently DISBARRED from the practice of law in the State of Mississippi.
2. This order shall constitute notice of permanent disbarment in this cause.
3. The Clerk of the Mississippi Supreme Court shall forward an attested copy of this order to Kimberly A. Castle and the Executive Director of the Mississippi Bar.
4. Kimberly A. Castle shall, within thirty days following entry of this order, notify clients and affected courts of her disbarment and comply with all other requirements applicable to disbarred attorneys pursuant to Rule 11 of the Rules of Discipline for the Mississippi Bar.
5. The Clerk of this Court shall immediately forward an attested copy of this order to the circuit court judges and chancellors in and for Forrest County, Mississippi, and the senior judge of each court shall enter this order upon the minutes of his or her respective court.
6. The Clerk of the Mississippi Supreme Court shall likewise immediately forward an attested copy of this order to Clerks of the Circuit and Chancery Courts of Forrest County, the Clerks of the United *635 States District Courts for the Northern and Southern Districts of Mississippi, the Clerk of the United States Court of Appeals for the Fifth Circuit, and the Clerk of the Supreme Court of the United States.
7. Kimberly A. Castle shall file, within forty-five days following entry of this order, an affidavit with this Court stating that all her clients have been notified of her disbarment and her consequent inability to practice law in the State of Mississippi and that she has fully complied with all requirements set forth in Rule 11 of the Rules of Discipline for the Mississippi Bar.
8. The Mississippi Bar shall have and recover of and from Kimberly A. Castle all of its costs and expenses of this disciplinary action.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617177/ | 623 So. 2d 601 (1993)
James MAY, Sr., Appellant,
v.
STATE of Florida, Appellee.
No. 90-02346.
District Court of Appeal of Florida, Second District.
August 27, 1993.
*602 James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Anne Y. Swing, Asst. Atty. Gen., Tampa, for appellee.
THREADGILL, Judge.
James May, Sr., appeals an order of indirect criminal contempt for violating a special condition of a shelter order in this juvenile dependency action. We reverse because the contempt proceedings did not comport with due process as ensured by rule 8.280, Florida Rules of Juvenile Procedure (1990).[1]
On June 8, 1990, the juvenile court entered a shelter order placing the appellant's five children in shelter care in the home of the appellant's wife. As a special condition, the appellant was ordered to have no visitation with the children until he started therapy.
On July 18, 1990, following a bench trial, the juvenile judge entered a contempt order wherein he found the appellant was in willful contempt of the shelter order. The appellant was sentenced to serve 179 days in jail, to begin immediately, and was ordered to undergo psychiatric evaluation at Polk County General Hospital. Neither substantive nor procedural due process was accorded to the appellant during these proceedings.
Florida Rule of Juvenile Procedure 8.280 (1990) governed the indirect contempt proceedings in this case. Where an act is committed outside the presence of the court, the proceeding to punish is for indirect contempt. Pugliese v. Pugliese, 347 So. 2d 422, 425 (Fla. 1977). A criminal contempt proceeding is maintained solely to vindicate the authority of the court or to punish for conduct offensive to the public in violation of a court order. Id. at 424. Any restrictions on a person's liberty, juvenile or adult, can only occur if the proper procedural safeguards are followed. A.A. v. Rolle, 604 So. 2d 813, 817 (Fla. 1992). Greater procedural safeguards are required in criminal contempt proceedings than in civil. Pugliese, 347 So.2d at 424.
Rule 8.280(a) ensures procedural due process. The rule thus requires that a person be tried for criminal contempt upon an *603 order to show cause, the purpose of which is to advise the accused of the charges and to afford him an opportunity to prepare a defense. See Bray v. Rimes, 574 So. 2d 1114, 1116 (Fla. 2d DCA 1990). To properly advise the accused of the charges, the order must state the "essential facts constituting the criminal contempt charged... ." Id. Moreover, the order may issue only upon the court's own motion or upon the affidavit of any person having knowledge of the facts. Fla.R.Juv.P. 8.280(a) (1990). A motion for contempt even with supporting affidavits is insufficient to advise the accused of the charges against him. Bray, 574 So.2d at 1116.
In this case, no rule to show cause ever issued. The Department of Health and Rehabilitative Services filed a motion for contempt and the appellant was held to answer the allegations asserted in it. The motion was neither sworn nor accompanied by affidavit. Thus, the appellant was not adequately notified of the charges against him.
Rule 8.280(a) further safeguards the right to procedural due process by assuring that the accused know of the prosecution and have adequate time to prepare a defense. To accomplish these purposes, the rule requires that the order to show cause be directed to the accused and specify the time and place of the hearing, allowing a reasonable time to prepare a defense.
None of these safeguards were accorded to the appellant. The appellant did receive and read a copy of the motion for contempt before the hearing, evidenced by his affirmation of this fact before the trial court. His appearance at the hearing indicates that he received some notice of proceedings requiring his attendance. However, the record does not indicate that the appellant had sufficient time to prepare a defense. Neither the motion nor notice contained a certificate of service to show when the appellant was served, and the hearing took place the same day that the motion and notice of hearing were filed with the court. Further complicating the issue of notice in this case is the fact that the only notice of hearing filed stated that a hearing would be held on a motion for change of custody, not for contempt. Noncompliance with the procedural due process requirements of rule 8.280(a) is fundamental error. Id.
Not only was the appellant deprived of procedural due process as described in rule 8.280(a), he was also deprived of substantive due process in the denial of effective assistance of counsel. Rule 8.280(d) recognizes the right to counsel in indirect contempt proceedings. See G.L.D. v. State, 442 So. 2d 401, 403 (Fla.2d DCA 1983). There is no waiver of counsel in the record. The Sixth Amendment right to counsel is a fundamental right. State v. Harvey, 573 So. 2d 111 (Fla.2d DCA 1991).
We conclude that the trial court erred in prosecuting the appellant for indirect criminal contempt in disregard of rule 8.280 and constitutional requirements of due process. We therefore reverse the order of contempt. We need not address the appellant's other point on appeal wherein he argues the insufficiency of the evidence to support his conviction for contempt.
Reversed.
SCHOONOVER, A.C.J., and BLUE, J., concur.
NOTES
[1] Renumbered as new Rule 8.150 and amended May 9, 1991, effective July 1, 1991 (589 So. 2d 818). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617155/ | 190 S.W.3d 479 (2006)
STATE of Missouri, Plaintiff-Respondent,
v.
Phillip C. BRISTOW, Defendant-Appellant.
No. 26825.
Missouri Court of Appeals, Southern District, Division Two.
March 31, 2006.
Motion for Rehearing or Transfer Denied April 24, 2006.
Application for Transfer Denied May 30, 2006.
*480 Craig A. Johnston, Columbia, for Appellant.
*481 Jeremiah W. (Jay) Nixon, Atty. Gen., Robert J. (Jeff) Bartholomew, Office of the Atty. Gen., Jefferson City, for Respondent.
KENNETH W. SHRUM, Presiding Judge.
A jury convicted Phillip Bristow ("Defendant") of assault in the first degree (§ 565.050) and armed criminal action (§ 571.015).[1] The trial court sentenced him to concurrent terms of fifteen years' and seven years' imprisonment for the two crimes, respectively. The dispositive point on appeal involves a jury instruction, namely, one patterned after MAI-CR3d 310.50 which advised the jury that voluntary intoxication was no defense to the charged crimes. Defendant argues that the instruction lacked evidentiary support and insists this constituted reversible error because (1) it confused and misled the jury and (2) it prevented the jury from properly considering his claim of self-defense. This court agrees. We reverse and remand.
FACTS
On December 31, 2003, Jimmy Ray Fry, Jr. ("Victim") and three friends went to Cowboys 2000 (a bar) in Springfield, Missouri, to celebrate New Year's Eve. When they arrived around 8:30 p.m., Victim had consumed one beer; he then drank between five and six mixed drinks (bourbon and coke) during the ninety minutes he was at the club.
On that same evening, Defendant arrived at the club with a friend between 9:00 and 9:30 p.m. During that day and before going to the bar, Defendant had "probably" drunk eight beers beginning at noon, and he was drinking his first beer at the bar when he encountered Victim. Defendant testified he "didn't believe he was intoxicated" that evening, he was not slurring his speech or stumbling, and he had driven to the club. In fact, during closing arguments, the prosecutor told the jury that nobody involved in the crimes was "particularly intoxicated."
Defendant and Victim did not know each other. Defendant testified his contact with Victim started when Victim "blatantly stepped all over my foot." Victim's version was that he first encountered Defendant when Defendant "bumped into" him as he (Victim) was walking along. They went on their way but encountered one another again approximately thirty minutes later. Defendant testified that Victim again stepped on his boots, and this time, he (Defendant) "stuck out my arm" to push Victim back because it looked like he was going to fall on Defendant's girlfriend.
Contrarily, Victim claimed that he was walking along when Defendant "stopped me dead in my tracks and . . . kind of shoves me back." At some point, Victim's friend (David Griner) came between Victim and Defendant, attempting to act as a peace-maker. By the time Griner got involved, Defendant and Victim were yelling and cursing at each other.
According to Defendant, Victim threatened to "whup" and hurt Defendant. Defendant also testified that Griner warned Defendant that Victim would hurt him. Even so, Defendant claimed he started to walk away when he heard Victim say "he'd kill" Defendant. Thereon, Defendant turned around and questioned Victim about what he said. According to Defendant, Victim repeated his statement to kill, whereon Defendant felt "threatened." Defendant testified that after Victim threatened a third time to kill Defendant, he (Victim) was trying to "work his way around . . . Griner[]" and at the same time *482 Victim reached around "like to either his back pocket or the small of his back."
At that point, Defendant believed Victim was reaching for a weapon. Accordingly, Defendant, being uncertain whether Victim was reaching for a gun or knife, drew his knife from its sheath which he was carrying "[i]n the small of [his] back." Thereon, Defendant "defended [himself]" by trying to stab Victim in the shoulder, but missed and "got him in the chest."
Victim told a different story. He conceded that he told Defendant he was going to "whip his ass" but denied that he ever threatened to kill Defendant. He admitted that he was carrying a knife with a three-inch blade that night but denied ever reaching for the knife or for anything else with which to harm Defendant. Victim denied ever reaching around Griner to strike or otherwise harm Defendant. He testified he saw Defendant's arm "come over" Griner, whereon he "got hit in the chest." At first, Victim believed he had been shocked, but soon realized he had been stabbed in the chest. Victim then fled toward the front door, but collapsed.[2] At the same time, Defendant fled the bar and was finally apprehended twenty-eight days later in Texas.
At Defendant's criminal trial, the only real issue was whether Defendant acted in self-defense. In making this determination, credibility was key for the jury because the various eyewitnesses to the stabbing (including Defendant and Victim) told different versions, i.e., key portions of the accounts failed to match up with key parts of other witnesses' testimony. The jury convicted Defendant and this appeal followed.
DISCUSSION AND DECISION
Defendant's second point charges the trial court committed reversible error when it gave the jury Instruction No. 13, submitted by the State, over his timely objection.[3] The instruction at issue here tracked MAI-CR3d 310.50. Specifically, it told the jury that,
"The State must prove every element of the crime beyond a reasonable doubt. However, in determining the defendant's guilt or innocence, you are instructed that an intoxicated condition from alcohol will not relieve a person of responsibility for his conduct."
Defendant argues that it was error to give the instruction because the record lacks evidence that he was intoxicated. He argues this was prejudicial error because the instruction had the potential for misleading or confusing the jury. Defendant insists this potential exists because he did not try to defend the charges against him by claiming he was intoxicated,[4] nor did he try to excuse his flight from the bar by claiming he was intoxicated,[5] nor did he *483 admit any wrongdoing.[6] As Defendant correctly points out, the record shows the contrary, namely, that he consistently relied upon a theory of self-defense without every admitting any wrongful conduct.
Section 562.076 is one of the sources or bases for the MAI-CR3d 310.50 pattern instruction. The relevant part of that statute provides:
"1. A person who is in an intoxicated. . . condition . . . from alcohol is criminally responsible for conduct. . . .
"2. The defendant shall have the burden of injecting the issue of intoxicated. . . condition.
"3. Evidence that a person was in a voluntarily intoxicated . . . condition may be admissible when otherwise relevant on issues of conduct but in no event shall it be admissible for the purpose of negating a mental state which is an element of the offense. In a trial by jury, the jury shall be so instructed when evidence that a person was in a voluntarily intoxicated . . . condition has been received into evidence." (Emphasis added.)
Among other things, this statute reflects the long-standing public policy of Missouri "prohibiting jurors from considering intoxication on the issue of specific [or general] intent." State v. Erwin, 848 S.W.2d 476, 482 (Mo.banc 1993) (citing State v. Cross, 27 Mo. 332 (1858)). As the Erwin court explained, "[t]he rule in Cross was rooted in the common law and in society's reproach toward persons who are voluntarily intoxicated" and the Cross rule "merely treats a sober person and a voluntarily intoxicated person as equally responsible for conduct." Erwin, 848 S.W.2d at 482.
Even so, section 562.076.3 states the obvious, namely, the jury is to be instructed on this subject only "when evidence that a person was in a voluntarily intoxicated or drugged condition has been received into evidence."[7] This comports with the general rule regarding any instruction in a criminal case, i.e., "[i]nstructions must be based on substantial evidence and reasonable inferences drawn therefrom." State v. Perry, 35 S.W.3d 397, 398[2] (Mo.App. 2000). More to the point, in Kehner, 886 S.W.2d at 133-34, and State v. James, 869 S.W.2d 276, 278 (Mo.App.1994), the eastern district ruled it was reversible error to give the MAI-CR3d 310.50 instruction when the evidence was insufficient to infer that an accused was intoxicated at the time of the alleged crime.
*484 The question is what constitutes sufficient evidence of a voluntarily intoxicated condition to trigger the giving of MAI-CR3d 310.50. The 1995 revision of "Notes on Use" concerning this instruction does not answer this question, i.e., it provides no guidance about what evidence is sufficient to support an inference of intoxication. The only relevant "Notes on Use" comment beneath MAI-CR3d 310.50 (as currently written) is the following: "1. See Section 562.076, RSMo 1994, and State v. Erwin, 848 S.W.2d 476 (Mo.banc 1993). This 1995 revision is to the Notes on Use only."
The problem is one of defining the term "intoxicated condition." Defendant asserts there must be evidence showing some level of impairment while the State claims that any evidence of consumption of alcohol (no matter how small) is sufficient to justify the giving of MAI-CR3d 310.50. The definitional problem is exacerbated in our case due to the unique factual situation presented here.
To solve this problem, the "Notes on Use" refer to the statute and case law, but neither section 562.076 nor Erwin gives guidance about whether the instruction was properly given in the factual context of this case. The "context" here includes (1) the State first proffered evidence about Defendant's drinking via cross-examination of Defendant's witness; (2) Defendant testified he "didn't believe he was intoxicated" and explained why, namely, his consumption of eight beers had occurred over an approximate time period of nine to nine and one-half hours, he was not slurring his speech nor stumbling, and he had driven to the bar; (3) the prosecutor in closing argument conceded the evidence did not show anyone was "particularly intoxicated;" (4) Defendant never used nor alluded to intoxication to rebut claims by the State that Defendant's flight showed guilt; and (5) no evidence of intoxication existed other than the question of whether consumption of eight beers over a nine to nine and one-half hour period permitted an inference of intoxication that would warrant giving the instruction.
On this record, we find it was error to give this instruction. We refuse to accept the State's argument that any evidence of alcohol consumption is sufficient to show an "intoxicated condition." We are persuaded Defendant is correct when he asserts that there must be evidence showing some level of impairment resulting from an intoxicated condition before MAI-CR3d 310.50 is proper.
To begin, the phrase "intoxicated condition" is not defined in section 562.076. Even so, at one point in time, the Notes on Use governing MAI-CR3d 310.50 contained this:
"If . . . it may be fairly inferred from the evidence that the defendant was intoxicated. . . to such an extent that his judgment and actions were substantially affected thereby, or that his capacity to know or appreciate the nature, quality, or wrongfulness of his conduct was significantly impaired by reason of intoxication, this instruction . . . must be given upon written request . . . by the state. . . . Even though there is evidence of consumption of alcohol . . ., if there is no evidence from which such impairment could be inferred, this instruction may not be given over the objection of the defendant."
MAI-CR3d 310.50, Notes on Use (4) (1987). Later, the 1995 revision of the Notes on Use eliminated all such language, and as indicated above, there is now no guidance in the Notes on Use.
We need not speculate about why the change was made. Suffice it to say, however, that we do not interpret the change in the Notes on Use to mean that the State *485 is entitled to submission of an MAI-CR3d 310.50 instruction any time there is evidence of alcohol consumption by an accused without consideration of (1) the quantity consumed, (2) the time span of consumption, (3) the accused's assertions of sobriety, and (4) the absence of evidence of discernible alcohol-related impairment.
The legislature certainly has the right to define the terms and phrases used by it when enacting statutes. ITT Canteen Corp. v. Spradling, 526 S.W.2d 11, 16 (Mo.banc 1975). Moreover, "`"[t]he legislature's own construction of its language by means of definition of the terms employed should be followed in the interpretation of the statute to which it relates."'" State v. Rousseau, 34 S.W.3d 254, 259 (Mo.App.2000) (citations omitted).
When, on the other hand, a phrase used in a statute is left undefined but its meaning is essential to interpretation of the statute, the overarching principle is that the intent of the General Assembly must prevail, and that intent is gleaned from the plain and ordinary meaning of the statute's language. Wolff Shoe Company v. Dir. of Revenue, 762 S.W.2d 29, 31 (Mo.banc 1988); Estate of Dugger v. Dugger, 110 S.W.3d 423, 428[6] (Mo.App.2003).
Another relevant rule of construction is that when the legislature enacts a statute referring to a term which it does not define and which has judicial or common law meaning attached to it, the legislature is presumed to have acted with knowledge of that meaning. State v. Harris, 156 S.W.3d 817, 823[11] (Mo.App.2005). Moreover, when a statute uses words or phrases having a definite and well-known meaning at common law, we presume that the terms are used in the sense in which they were understood at common law, and they will be so construed unless it clearly appears that it was not so intended. State v. Duggar, 806 S.W.2d 407, 408 (Mo.banc 1991).
Although the phrase "intoxicated condition" was left undefined by the legislature in section 562.076, those are words that had a well-defined and well-understood meaning that we presume the legislature knew about when it used them in the statute. For instance, in Chapter 565 (which contains the assault statute that Defendant was convicted of violating), the legislature defined "intoxicated condition" as "under the influence of alcohol, a controlled substance or drug, or any combination thereof." § 565.002(4) (emphasis added). This definitional statute predated section 562.076. The words "under the influence" used in section 565.002(4) have been said to cover
"not only all well-known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree of intoxicating liquors or drugs, and which tends to deprive one of the clearness of intellect and control of himself which he would otherwise possess."
BLACK'S LAW DICTIONARY, 1527 (6th ed.1990).
Other plain-meaning dictionary definitions of "intoxicate" include "to affect temporarily with diminished physical and mental control by means of alcoholic liquor, a drug, or other substance," RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY, 1000 (2nd ed.1999), and "to excite or stupefy by alcoholic drinks or a narcotic esp. to the point where physical and mental control is markedly diminished." MERRIAM-WEBSTER THIRD NEW INTERNATIONAL DICTIONARY, 1185 (1976).
Also, Missouri case law on the books since 1927 declares:
"[T]he words `intoxicated condition' are of common, everyday use, having a well-defined and well understood meaning. *486 Every one knows that the words refer to the impaired condition of thought and action and the loss of the normal control of one's faculties caused by imbibing vinous, malt, or spiritual liquors. The words are not technical but are in common use and well understood by the laity."
State v. Reifsteck, 317 Mo. 268, 295 S.W. 741, 742-43 (1927).
Based on the plain meaning of "intoxicated condition" as gleaned from dictionaries and on the definition of that term as used by both the legislature and courts before enactment of section 562.076, we find the legislature did not intend to equate the phrase "intoxicated condition" in section 562.076 to alcohol or drug consumption alone without any evidence of resulting impairment therefrom. We are persuaded that when the legislature via section 562.076 spoke of "[e]vidence that a person was in a voluntarily intoxicated condition," it meant to require, at a minimum, some evidence from which it could be reasonably inferred that an accused's alcohol consumption had impaired his condition of thought or action; or had caused the loss of the normal control of his faculties; or that he exhibited some abnormal mental or physical condition that was the result of indulging in intoxicating liquors or drugs or that tended to deprive him of the clearness of intellect and control of himself that he would otherwise possess.
Measured by that standard, it was error to give the MAI-CR3d 310.50 instruction here. This follows because evidence meeting this criteria was wholly absent from this record. The prosecutor implicitly admitted this when, in his final remarks to the jury, he asserted that Defendant "was aware of everything that was going on[;]" "[h]e knew what he was doing[;]" "[h]e told you he was in control[;]" "[h]e was in control when he ran out the back door[;]" and "[h]e was in control when he went to Houston." Because of the absence of evidence that Defendant was in an "intoxicated condition," it was error to give Instruction No. 13 patterned after MAI-CR3d 310.50. Kehner, 886 S.W.2d at 133-34; James, 869 S.W.2d at 278.[8]
This does not end our inquiry, however, because an appellate court may not reverse for instructional error unless prejudice results therefrom. State v. Hirt, 16 S.W.3d 628, 632[7] (Mo.App.2000). Prejudice results when the instructions are misleading and confusing to the jury. State v. Green, 812 S.W.2d 779, 787[10] (Mo.App.1991). In the prejudice analysis, an appellate court must examine the language of the instruction and the facts of the case. State v. Ward, 745 S.W.2d 666, 670[6] (Mo.banc 1988).
The pertinent language of the instruction was at issue in Kehner, 886 S.W.2d 130.[9] There, the defendant claimed that he shot the victim in self-defense and evidence was introduced that the defendant had been drinking prior to the shooting. On the prejudicial nature of the instruction, the court held:
*487 "Appellant did not attempt to defend the charges against him by arguing that he was intoxicated. Rather, appellant attempted to defend the charges against him by claiming self-defense. Because appellant did not raise the issue of intoxication or impairment, submitting Instruction No. 10 [MAI-CR3d 310.50] was likely to have confused the jury or misled them to believe appellant admitted to some wrongdoing and was attempting to escape liability based on intoxication."
Id. at 134. The Kehner court's rationale was that the instruction implied that the defendant was in fact intoxicated and further implied that he admitted to doing something wrong, but should not be held responsible because of the intoxication.
The same reasoning applies here. By giving the instruction, the jury was led to believe two things: (1) that Defendant was attempting to escape liability based on intoxication, i.e., he implicitly admitted some wrongdoing, and (2) that Defendant was, in fact, intoxicated which would negatively affect his credibility, i.e., the key issue at trial. These two implications directly contradicted Defendant's claim of self-defense. When the court instructed the jury, it impliedly ratified these two implications. On the other hand, both the prosecutor and Defendant claimed otherwise. The jury could not help but be hopelessly confused and misled by the two contrary positions. As such, the jury instruction was prejudicial to Defendant. Point granted.
The convictions and sentences are reversed and the case is remanded for a new trial.
GARRISON and BARNEY, JJ., Concur.
NOTES
[1] All statutory references are to RSMo (2000), unless indicated otherwise.
[2] Victim was taken to the hospital with what a physician described as a "life threatening" stab wound to the chest. The blade of Defendant's knife missed Victim' heart and vital arteries but entered a lung and caused a partial collapse thereof.
[3] We start with Defendant's second point because it is dispositive and leads to reversal and remand. We opt not to address his first point because it is unlikely that the issue will arise again, i.e., whether error resulted from admission into evidence of three knives taken from Defendant twenty-eight days after the incident. Because that issue is fact-driven and dependent upon trial strategy, any discussion thereof would be advisory only.
[4] Under section 562.076, evidence of intoxication is inadmissible in a criminal trial to negate a mental element of a charged crime, but is admissible "when otherwise relevant on issues of conduct." § 562.076.3; State v. Roberts, 948 S.W.2d 577, 588-89 (Mo.1997).
[5] "Conduct evidence to which voluntary intoxication is relevant under section 562.076.3 is most often failure-to-act evidence. This is because a defendant's failure to act raises inferences of a guilty mind." Roberts, 948 S.W.2d at 589. Flight from the scene of an alleged crime due to intoxication is an example of such conduct. State v. Hefflinger, 101 S.W.3d 296, 301 (Mo.App.2003). For instance, a defendant could argue that because of intoxication, he or she was not thinking clearly, and that impaired reasoning process led to the flight from the scene and not because he or she was guilty.
[6] In State v. Kehner, 886 S.W.2d 130 (Mo.App. 1994), the court held that giving MAI-CR3d 310.50 was prejudicial in that it was likely to confuse or mislead the jury into believing that the defendant admitted to some wrongdoing and was attempting to escape liability based on intoxication when the defendant did not attempt to defend the charges against him by arguing that he was intoxicated, did not raise the issue of intoxication, and was claiming self-defense. Id. at 134.
[7] Section 562.076 reiterates and codifies the common law that evidence of voluntary intoxication is inadmissible on the issue of the defendant's mental state. Roberts, 948 S.W.2d at 588. Section 562.076.3 creates an exception to this general rule. Id. See n. 5. These instances, however, are not the only time when voluntary intoxication evidence may be admissible. See Erwin, 848 S.W.2d at 482 n. 3; State v. Caston, 509 S.W.2d 39, 41 (Mo.banc 1974); Lagud v. Kansas City Bd. of Police Comm'rs., 136 S.W.3d 786, 793-94 (Mo.banc 2004).
[8] We recognize the Kehner and James cases were decided when Notes on Use for MAI-CR3d 310.50 required more evidence of intoxication than what we have found is required to support submission of the subject instruction. We note this to clarify that we cite Kehner and James as authority for saying it is error to submit an MAI-CR3d 310.50 instruction when there is not substantial evidence and reasonable inferences that can be drawn therefrom to support a finding of intoxicated condition. We have not used the Kehner and James definition or standard of "intoxicated condition" (as gleaned from the old Notes on Use) to reach our decision.
[9] Although Kehner was decided after Erwin and before the changes to the Notes on Use, the prejudice analysis applied only to the second part of the instruction which has remained unchanged. Consequently, the prejudice discussion in Kehner is still good law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617183/ | 623 So. 2d 1130 (1993)
Robert D. LONG and Judy L. Long
v.
JEFFERSON COUNTY.
1920146.
Supreme Court of Alabama.
July 30, 1993.
*1132 Mark E. Martin, Birmingham, for appellants.
Charles S. Wagner, Asst. County Atty., Birmingham, for appellee.
HOUSTON, Justice.
The plaintiffs, Robert D. Long and his wife, Judy L. Long, appeal from a summary judgment for the defendant, Jefferson County, in this action to recover damages for trespass and negligence. We affirm in part, reverse in part, and remand.
In 1973 the plaintiffs purchased a house in a subdivision in Jefferson County. A title examination made in 1973 by Chicago Title Insurance Company ("Chicago Title") failed to disclose that in 1902 the county had acquired an easement by condemnation across what is now the plaintiffs' property and that in 1907 the county had constructed an underground sewer on its easement. The petition for condemnation, the commission to assess damages, and the report of the commissioners were all recorded in the final record of the probate court.
The plaintiffs' house was built in 1939 directly over the sewer, and a cast iron pipe was installed in the floor of the basement through which sewage could be discharged directly into the sewer. The ground around and under the plaintiffs' house began to sink in October 1987, causing structural damage to the house. After being notified of the problem by the plaintiffs, county representatives inspected the plaintiffs' property and informed them that the county's sewer had collapsed. The county representatives also told the plaintiffs that the county had an easement across the plaintiffs' property and that the county would not assume responsibility for any of the damage. The county did reroute the sewer and it filled that section of the old sewer that ran under the plaintiffs' house with concrete to prevent further deterioration. The plaintiffs filed this action on October 25, 1989.[1]
Our standard of review in this case is well settled. The summary judgment was proper if there was no genuine issue of material fact and the county was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on the county to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If it made that showing, then the burden shifted to the plaintiffs to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against them. In determining whether there was a genuine issue of material fact, we must view the evidence in the light most favorable to the plaintiffs and must resolve all reasonable doubts against the county. Knight v. Alabama Power Co., 580 So. 2d 576 (Ala.1991). Because this case was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12. "Substantial evidence" has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989), citing Rowden v. Tomlinson, 538 So. 2d 15, 19 (Ala.1988) (Jones, J., concurring). Simply stated, an issue is genuine if reasonable persons could disagree. Olympia Produce Co. v. Associates Financial Services of Alabama, Inc., 584 So. 2d 477 (Ala.1991).
The following issues have been presented for our review:
1) Whether the county's sewer easement, acquired by condemnation in 1902, was valid as to the plaintiffs;
2) Whether the county acquired a sewer easement across the plaintiffs' property under the doctrine of prescription;
3) Whether the county owed a duty to the plaintiffs to exercise reasonable care in the *1133 maintenance and operation of its sewer system;
4) Whether the county is shielded from liability under the substantive immunity doctrine as discussed and applied in Rich v. City of Mobile, 410 So. 2d 385 (Ala.1982); and
5) Whether the plaintiffs' claims are barred by the applicable statutes of limitations.
With regard to the first issue, the plaintiffs contend that the condemnation judgment was void as to them under Ala.Code 1975, § 35-4-90, which provides in pertinent part as follows:
"(a) All conveyances of real property, deeds, mortgages, deeds of trust or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees or judgment creditors."
The plaintiffs argue that they were unaware when they purchased their house that it had been built above a sewer. They also maintain that the condemnation proceeding was not reflected in the real property records of the probate court and, therefore, that it was outside their chain of title and did not constitute constructive notice to them of the existence of the county's easement.
The plaintiffs rely on Fort Payne Water Works Board v. Sparks, 600 So. 2d 230 (Ala. 1992), a case factually similar to the present case, in support of their argument that the county's condemnation proceeding was outside their chain of title and, thus, that it did not provide them with constructive notice of the county's sewer easement. In Fort Payne, this Court, relying on State v. Abbott, 476 So. 2d 1224 (Ala.1985), held that the Sparkses did not have constructive knowledge of an easement that had been acquired by the water works board through a 1984 condemnation proceeding because there was no evidence of the condemnation proceeding in the "real property records" of the probate court when they purchased their property. Responding to the board's argument that the recording requirement of § 35-4-90 was satisfied because the petition for condemnation was recorded in the final record of the probate court and the condemnation judgment was recorded in the probate court minutes, this Court stated:
"Although the record in the present case reveals that the petition for condemnation was recorded in the final record of the probate court and that the condemnation judgment was recorded in the minutes of the probate court before the Sparkses purchased the property, the condemnation order was not recorded in the real property records of the probate court until June 3, 1988, when it was filed for recordation. Therefore, a search of the real property records prior to June 3, 1988, would not have revealed the existence of the easement. Consequently, we reach here a conclusion similar to that reached in Abbott: because the judgment of condemnation in which the prohibitive easement is contained was not recorded in the real property records of the probate court until after the Sparkses had purchased the property, the easement was outside the chain of title to the property, and the Sparkses, because they undisputedly purchased the property for value, cannot be held to have had constructive notice of the easement."
600 So.2d at 232.
In Abbott, the state was seeking enforcement of a right-of-way that it had acquired through a 1939 condemnation proceeding. The defendants had purchased the property in 1965, and they argued that they had not been provided with notice as to the existence of the right-of-way because the documents relating to the condemnation had not been recorded in the probate court at the time they purchased the property. Thus, in Abbott, through an oversight and contrary to the probate judge's specific instructions, the condemnation judgment was not filed for record in the probate court. The specific issue addressed in Abbott was whether a condemnation judgment was a "conveyance of real property" within the meaning of § 6887, Code of 1923 (now § 35-4-90). This Court concluded in Abbott that a condemnation judgment operates as a transfer of title to *1134 land from the landowner to the condemning authority upon payment of the required compensation, see Southern Natural Gas Co. v. Ross, 290 Ala. 195, 275 So. 2d 143 (1973), and, as such, must be recorded in the probate court to be operative as to future purchasers for value. However, this Court did not hold in Abbott, as was suggested in Fort Payne, that a purchaser for value is not provided with constructive notice of a condemnation proceeding noted in the final record of the probate court. Consequently, Abbott does not support this Court's holding in Fort Payne.
Pursuant to Ala.Code 1975, § 35-4-50, "[c]onveyances of property, required by law to be recorded, must be recorded in the office of the judge of probate." (Emphasis added.) Section 35-4-51 provides in pertinent part:
"Except as may be otherwise provided by the Uniform Commercial Code, all deeds, mortgages, deeds of trust, bills of sale, contracts or other documents purporting to convey any right, title, easement, or interest in any real estate or personal property and all assignments of mortgages, deeds of trust or other securities for debt or extension agreements with respect thereto, when executed in accordance with law, shall be admitted to record in the office of the probate judge of any county. Their filing for registration shall constitute notice of their contents."
Section 35-4-58 states in part:
"Judges of probate are to procure, at the expense of their counties, large and well-bound books, in which must be recorded in a fair hand, or by printing the same, or by the use of a typewriter or other writing or printing, photograph or photostat machine, word for word, conveyances of property and all other instruments authorized to be recorded, with the acknowledgments, proofs, schedules, plats, surveys, etc., belonging thereto; and, at the foot or in the margin of the record of each conveyance or other instrument, the day of the month and year of the delivery of the same for record must be specified."
Section 35-4-63 reads as follows:
"The recording in the proper office of any conveyance of property or other instrument which may be legally admitted to record operates as a notice of the contents of such conveyance or instrument without any acknowledgment or probate thereof as required by law."
Although certain affidavits are specifically required to be recorded in the deed records of the probate court, see § 35-4-71, we can find no statutory requirement, other than as set out in § 35-4-131 and § 35-4-136, that a probate court record documents evidencing a condemnation proceeding in any particular record book. The legislature in 1971 amended Title 47, § 66, of the Alabama Code of 1940 (now § 35-4-131) so as to require that notice of a pending condemnation proceeding be filed in the lis pendens record of the probate court. The legislature also amended § 70 of that same title (now § 35-4-136) so as to require that notice of the resolution of the condemnation proceeding and of the "devolution" or passing of title to the land also be promptly noted in the lis pendens record. See Abbott at 1226-27.
Therefore, because the condemnation at issue in Fort Payne, which took place in 1984, was not noted in the lis pendens record of the probate court as required by statute, the result reached by this Court in that case was correct. However, there is no statutory basis for concluding that, before the legislature's action in 1971, evidence of a condemnation proceeding as shown by the final record of the probate court did not provide constructive notice of the condemnation proceeding. We conclude, therefore, that before the legislature's amendment of what is now § 35-4-131 and § 35-4-136 in 1971, condemnation proceedings, as reflected in the final record of the probate court, served to provide constructive notice to the world that title to the subject property either was, or, if the condemning authority's payment of the compensation is not noted in the record, could have been, transferred to the condemning authority. To the extent that Fort Payne is to the contrary, it is hereby overruled.
Although the record on appeal does not show whether a condemnation judgment was ever entered for the county, it does show *1135 that the petition for condemnation, the commission to assess damages, and the report of the commissioners were recorded in the final record of the probate court.[2] In White v. Boggs, 455 So. 2d 820, 821-22 (Ala.1984), this Court, quoting Jefferson County v. Mosley, 284 Ala. 593, 599, 226 So. 2d 652, 656 (1969), explained:
"[W]hatever is sufficient to excite attention and put the party on his guard and call for inquiry is notice of everything to which the inquiry would have led; ... one who has knowledge of facts sufficient to put him on inquiry as to the existence of an unrecorded deed is not a purchaser without notice within the protection of the registry statutes."
Charged by law with notice of the county's condemnation proceeding, the plaintiffs were charged with notice of everything that a reasonable inquiry would have disclosed. The probate court record reflected that the county was the condemning authority involved in the 1902 condemnation proceeding. The plaintiffs could have easily inquired of the county as to whether it had constructed a sewer on what later became their property.
Therefore, the plaintiffs were not purchasers for value without notice within the protection of § 35-4-90 and, consequently, the county's easement was not void as to them. The county was entitled to a judgment as a matter of law on the trespass claim.
However, the county has provided us with no authority that would support the proposition that the validity of the easement alone entitled it to a judgment as a matter of law on the negligence claim. The county, which did not raise the defenses of contributory negligence or assumption of the risk, and which did not submit any evidence indicating that the construction of the plaintiffs' house was illegal, was under a duty to exercise reasonable care in the construction and maintenance of sewers and drains under its control. See our discussion of the third and fourth issues, infra.
In light of our resolution of the first issue, the second issue is moot. In any event, we note that the county waived the second issue by not arguing below that it had acquired a sewer easement across the plaintiffs' property under the doctrine of prescription. It is a familiar standard of appellate review that issues cannot be raised for the first time on appeal. See Totten v. Lighting & Supply, Inc., 507 So. 2d 502 (Ala.1987).
As for the third and fourth issueswhether the county was under a duty to exercise reasonable care in the maintenance and operation of its sewer system and whether the doctrine of substantive immunity shields the county from liability for damages arising out of the operation of its sewer systemthe county takes the position that it owed no duty to the plaintiffs to construct or maintain a sewer that would not collapse under the weight of a house. We note, however, that cities and counties are generally responsible for damage caused by the negligent operation and maintenance of sewers and drains under their control. See, e.g., Cook v. County of St. Clair, 384 So. 2d 1, 5 (Ala.1980) ("[t]here is no restriction to the type of suit that may be brought against [a] countytort or contract"); see, also, Hilliard v. City of Huntsville, 585 So. 2d 889 (Ala.1991); Waterworks & Sewer Board of the Town of Ardmore v. Wales, 533 So. 2d 212 (Ala.1988); Terry v. City of Sheffield, 484 So. 2d 389 (Ala.1986); City of Mobile v. Jackson, 474 So. 2d 644 (Ala.1985); Brown v. City of Fairhope, 265 Ala. 596, 93 So. 2d 419 (1957); City of Birmingham v. Estes, 229 Ala. 671, 159 So. 201 (1935); City of Birmingham v. Greer, 220 Ala. 678, 126 So. 859 (1930). In Rich v. City of Mobile, supra, a narrow exception to the general rule of municipal liability was recognized. In Rich, the doctrine of substantive immunity was held to apply to those cases involving public service activities of governmental entities that are "so laden with the public interest as to outweigh the incidental duty to individual citizens." *1136 410 So.2d at 387-88. The Court in Rich explained:
"We believe these public policy considerations, however, override the general rule and prevent the imposition of a legal duty, the breach of which imposes liability, in those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide such public services.
"We readily acknowledge both the difficulty and the risk of error of any attempt to articulate the rule with that degree of definiteness which is easily applicable to varying factual situations. But this phenomenon is no stranger to the Rule of Law generally. We believe the wiser course is to allow the rule to evolve through the judicial process of trial and review on a case by case basis.
"We emphasize, however, that only the narrowest of constructions of our instant holding will avoid violence to [Ala. Code 1975,] § 11-47-190 and its Jackson [v. City of Florence, 294 Ala. 592, 320 So. 2d 68 (1975),] interpretation...."
Id. at 387. Although Rich has not been limited to facts identical to those of that case, see, e.g., Hilliard v. City of Huntsville, supra; Ziegler v. City of Millbrook, 514 So. 2d 1275 (Ala.1987), we have not been cited to a case (and our research has not disclosed one) in which the doctrine of substantive immunity, as discussed in Rich, has been specifically extended so as to apply to counties. Nonetheless, even if logic and public policy were to dictate such an extension of the doctrine, it would not shield the county from liability in the present case. Here, the plaintiffs have alleged and presented evidence tending to show that the county constructed its sewer with knowledge that houses would likely be built over or in close proximity to it. Obviously, houses were built over the sewer. The evidence suggests that the sewer was not designed or constructed so as to withstand the weight of a house for an extended length of time and there is no evidence that the county ever inspected or otherwise attempted to ascertain whether that section of its sewer that ran under the plaintiffs' house might need additional support or whether it might need to be rerouted around the plaintiffs' property.
In City of Mobile v. Jackson, supra, the plaintiffs sued the city to recover damages to their real and personal property caused by the overflow of a drainage system that flooded their property. Rejecting the city's argument that Rich was applicable under the facts of that case, we held:
"In Kennedy v. City of Montgomery, 423 So. 2d 187 (Ala.1982), this Court held that pursuant to Code 1975, § 11-50-50, municipalities are authorized to construct and maintain drainage systems, and, while a municipality is not required to exercise this authority, once it does so, a duty of care arises and a municipality may be liable for damages proximately caused by its negligence.
"We find that the liability for negligent design or maintenance of drainage systems is analogous to that involved in the construction and maintenance of streets, alleys, or public ways or buildings, and, thus, that the city is not immune in this case."
474 So.2d at 649. Recently, in Hilliard v. City of Huntsville, supra, this Court cited with approval Town of Leighton v. Johnson, 540 So. 2d 71 (Ala.Civ.App.1989). In Johnson, the city created the defect that caused the injury by knocking a hole in a manhole cover and thereby allowing raw, untreated sewage to flow into a drainage ditch near the plaintiff's property. Although this Court in Hilliard held that the immunity doctrine recognized in Rich protected the city from any liability from the alleged negligent inspection of electrical wiring in an apartment complex, we specifically distinguished Johnson. Noting that the Court of Civil Appeals had correctly ruled in Johnson that the narrow exception to the general rule of liability recognized in Rich was not applicable, we stated in Hilliard that the Court of Civil Appeals had "merely refused to hold that the substantive immunity rule changed the tort laws governing municipal operations." 585 So.2d at 892. Hilliard is consistent with City of Mobile v. Jackson, supra, and other cases in which municipal liability for negligence in the design *1137 or maintenance of sewer and drainage systems has been recognized. County commissions are authorized under Ala.Code 1975, § 11-3-11,
"[t]o expend money for the purpose of improving the sanitary conditions of the county by laying trunk lines of sewers and constructing sewage disposal plants in localities contiguous to thickly populated communities and to prescribe the terms on which the owners of houses or householders may connect with such lines of sewers...."
A county, like a city, is under a duty to exercise due care when it constructs and operates a sewage or drainage system, and it may be liable for damages proximately caused by its negligence. Because the doctrine of substantive immunity as recognized in Rich would not shield the county from liability, the county would not be entitled to a judgment as a matter of law based on that doctrine.
The last issue is whether the plaintiffs' claims are barred by the applicable statutes of limitations.[3] As previously noted, however, because the county's sewer easement was valid as to the plaintiffs, the county could not be liable for trespass. Consequently, we need not determine whether the plaintiffs' trespass claim was timely filed.
Under Ala.Code 1975, § 6-2-38(n), "[a]ll actions commenced to recover damages for injury to the person or property of another where a principal or master is sought to be held liable for the act or conduct of his agent under the doctrine of respondeat superior ... must be brought within two years" after the cause of action has accrued. A negligence cause of action accrues as soon as the plaintiff is entitled to maintain the action, i.e., at the time of the first legal injury, regardless of whether the full amount of damages is apparent. Watson, Watson, Rutland Architects, Inc. v. Montgomery County Bd. of Educ., 559 So. 2d 168 (Ala. 1990); Garrett v. Raytheon Co., 368 So. 2d 516 (Ala.1979). The record in the present case shows that the plaintiffs' negligence cause of action accrued sometime in October 1987, when the ground around their house began to sink. The plaintiffs filed this action on October 25, 1989. By not introducing evidence of the day in October 1987 on which the damage to the plaintiffs' property first occurred, the county failed to make a prima facie showing that it was entitled to a judgment as a matter of law on the negligence claim based on the statute of limitations.
Insofar as it pertains to the trespass claim, the judgment is affirmed. However, insofar as it pertains to the negligence claim, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and KENNEDY, JJ., concur.
STEAGALL, J., concurs in the result.
ALMON, SHORES and INGRAM, JJ., concur in part and dissent in part.
INGRAM, Justice (concurring in part; dissenting in part).
The majority has concluded that, before the legislature's actions in 1971 (which required that condemnation orders, as well as notice of condemnation proceedings, be filed in the lis pendens records), condemnation proceedings, as reflected in the final record of the probate court, served to provide constructive notice that title to property was or could have been transferred to the condemning authority. I believe this issue has been squarely presented to this Court in State v. Abbott, 476 So. 2d 1224 (Ala.1985), and has been decided to the contrary. Therefore, I must respectfully dissent.
In Abbott, this Court was confronted with the question "whether the State, by failing to record a condemnation order ..., can be *1138 divested of its title to a highway right-of-way under [Ala.Code 1975, § 35-4-90]." The condemnation order was dated December 21, 1939; therefore (because it was pre-1971) it was not required by statute (§ 35-4-136) to be recorded in the lis pendens record. In construing the recordation statute (§ 35-4-90) the Abbott Court held that (1) an order of condemnation is a conveyance of real property; (2) an order of condemnation is a transfer of title to real property; and (3) a mere entry of an order of condemnation is not sufficient notice that title to land has been transferred. Specifically, the Court held that § 35-4-90 included orders entered in condemnation proceedings, "even though the State of Alabama and the Alabama Power Company, as amicus curiae, both strongly insist that orders of condemnation have never been considered by them to be transfers of title which have to be recorded." 476 So.2d at 1226.
Justice Maddox, writing for the Court in Abbott, at 1228, concluded his analysis by noting that "[i]f our construction of § 35-4-90 is considered by the legislature to be contrary to its intent, the legislature is free to amend § 35-4-90 to specifically provide that orders of condemnation [prior to 1971] need not be recorded." As of this date, the legislature has not amended § 35-4-90.
In May 1992, writing for the Court, I authored Fort Payne Water Works Board v. Sparks, 600 So. 2d 230 (Ala.1992). The facts in Fort Payne reveal that a condemnation judgment dated 1984 was noted in the "minute book" of the probate court. It was not, however, recorded in any of the real property records (nor was it recorded in the lis pendens record as required by Act No. 181, Acts of Alabama, Second Special Session, 1971) at the time of the sale of the land to the Sparkses, the purchasers for value. We held in Fort Payne that the easement was outside the purchasers' chain of title and that they did not have constructive notice of it.
In deciding Fort Payne, this Court looked to Abbott and § 35-4-90. We held that "because the judgment of condemnation in which the prohibitive easement is contained was not recorded in the real property records of the probate court until after the [purchasers] had purchased the property, the easement was outside the chain of title to the property." 600 So.2d at 232. However, as Justice Houston points out in the majority opinion in the present case, we could have simply held that because the condemnation judgment was entered after 1971, the case was controlled by Ala.Code 1975, § 35-4-136, which required that the order be recorded in the lis pendens record. Because this was not done in Fort Payne, the requirements of the statute were not met and the easement was outside the chain of title.
Nevertheless, I believe some of the statements in Fort Payne are dicta; but the holding is sound. Rather than holding that the easement was outside the chain of title, based on § 35-4-136, we based the opinion in Fort Payne on Abbott and its construction of § 35-4-90. We held that because the easement was contained only in the minute entry and was not recorded in the real property records of the probate court, the easement was outside the chain of title. I am satisfied that this is what Abbott said.
As noted above, I am at odds with the majority only concerning pre-1971 condemnation orders that have not been recorded in the real property records. The recordation statutes are designed to aid the general public in determining the title to property. They are to provide a means whereby one desiring to purchase land may ascertain if there is anything that affects the title to that land. Although I believe that a purchaser is under an obligation to dutifully search the records to determine an accurate history of the title of the property in question, I cannot find it in the public interest to require a search of every minute entry or file folder in the probate judge's office. In my opinion, this would be an onerous burden on the would-be purchaser. I do not believe that pursuant to § 35-4-90 the "final record" or "minute entry" in a condemnation proceeding constitutes notice to a purchaser for value. Rather, I believe that the better reasoned solution (as stated in Abbott) is that for a pre-1971 condemnation order to be considered within the chain of title, the condemnation order must be recorded in the real property record books. I am satisfied that that is the solution *1139 this Court adopted in Abbott when it construed § 35-4-90.
For this reason, I respectfully dissent from the majority opinion as it concerns the trespass claim against the County. As to the negligence claim, I concur.
ALMON and SHORES, JJ., concur.
NOTES
[1] The plaintiffs also named Chicago Title as a defendant, seeking damages for breach of contract, negligence, and wantonness. After the summary judgment had been entered for the county and made final pursuant to Rule 54(b), A.R.Civ.P., the plaintiffs proceeded to trial on their claims against Chicago Title. However, the trial court directed a verdict for Chicago Title at the close of the plaintiffs' case and the plaintiffs did not appeal the judgment entered on that directed verdict.
[2] Attached to the county's brief on appeal is a copy of what is represented to be the 1902 condemnation judgment in favor of the county, as recorded in the probate court minutes. Because this document is outside the record, we cannot consider it in determining whether the summary judgment for the county was proper. See Sheetz, Aiken & Aiken, Inc. v. Louverdrape, Inc., 514 So. 2d 797 (Ala.1987).
[3] The county raised the statute of limitations defense in its answer to the plaintiffs' complaint, but it did not argue in support of its motion for summary judgment that it was entitled to a judgment based on that defense. However, the record indicates that the trial court specifically brought the issue up during the hearing on the motion and that the plaintiffs discussed the issue in a subsequent brief filed in support of their motion to vacate the summary judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617206/ | 347 N.W.2d 681 (1984)
In re the MARRIAGE OF Vickie Ann MAYER and Thomas Francis Mayer.
Upon the Petition of Vickie Ann Mayer, Petitioner-Appellee,
And Concerning Thomas Francis Mayer, Respondent-Appellant.
No. 83-913.
Court of Appeals of Iowa.
February 21, 1984.
*682 Max E. Kirk of Ball, Kirk & Holm, P.C., Waterloo, for respondent-appellant.
Joe Nutting, Waterloo, for petitioner-appellee.
Considered by OXBERGER, C.J., and SNELL and SCHLEGEL, JJ.
SCHLEGEL, Judge.
Thomas Mayer, respondent, appeals the trial court's order modifying the child support provisions of the decree of dissolution in this matter, and the court's refusal to grant him temporary custody of one of the parties' children. We affirm.
Vickie Ann Mayer and Thomas Francis Mayer were divorced in 1975. Under the terms of the decree of dissolution entered at that time, Vickie was granted custody of the parties' three children. Thomas was ordered to pay child support, and, at the time of the modification hearing, he was obligated to pay $600 per month as child support. Vickie and the children now live in a suburb of Atlanta, Georgia.
Initially, Thomas brought a modification action to deal with changes he urged in the visitation schedule fixed in the decree. No issue concerning visitation is preserved in this appeal. By amendment, Thomas asks that the decree be modified to place temporary custody of the parties' child, Dennis, born in 1970, with him, claiming that he is better able to deal with Dennis's emotional and educational needs than is Vickie. Thomas suggests that the court grant him temporary custody of Dennis so that he may attend to the child's emotional and educational needs.
Following the filing of Thomas's petition to modify the decree, Vickie filed her application for modification, seeking a modification of the child support provisions of the dissolution decree. Vickie alleged, as grounds for modification, a deterioration of her financial condition and an improvement of Thomas's financial condition. She also alleged that the parties' minor child, Dennis, was suffering from emotional and educational problems requiring him to attend a special school. She asked that the child support payable by Thomas be increased.
Following trial, the court required Thomas to pay an additional $400 per month for the tuition of a special school for Dennis. Such payment was ordered for as long as Dennis attended Howard School in Atlanta, Georgia, but not more than a total of eleven months. Such payment is in addition to the $600 child support payable under the original decree. Thomas's request for temporary custody of Dennis was denied.
Thomas contends, in his brief, that the trial court erred in finding that there was a substantial change in his financial circumstances which justified an award of additional support. We do not interpret the trial court's ruling as making such a finding. While the trial court did examine the financial condition of both parties as it is required to do under Iowa Code section 598.21(8), it commented that the company of which Thomas is president had reduced his salary and that certain of his real estate investments had fallen in value. Although the fact Thomas's new wife is employed and contributes substantially to the family income may be considered by the court in determining Thomas's overall financial condition, the record does not show that such fact was considered by the court in assessing Thomas's financial condition. Page v. Page, 219 N.W.2d 556, 558 (Iowa 1974). The trial court instead relied upon the needs of the parties' child, Dennis, for a change of circumstances and Thomas's superior ability to pay in determining the amount of increased support.
I. Our review of this equity action is de novo. Iowa R.App.P. 4. While *683 we are not bound by the findings of the trial court, we do give weight to them especially where credibility of witnesses is involved. Iowa R.App.P. 14(f)(7). While a substantial change in a party's financial circumstances may be a sufficient basis for modification of support provisions, it is not the sole change of circumstances that will justify modification. Iowa Code § 598.21(8); Moen v. McNamara, 272 N.W.2d 438 (Iowa 1978); Pucci v. Pucci, 259 Iowa 427, 143 N.W.2d 353 (1966); Jensen v. Jensen, 253 Iowa 1013, 114 N.W.2d 920 (1962) (wife injured and disabled from work an adequate change of circumstances to justify modification of support).
[T]he basic rules governing matters of this kind are that child custody and support provisions of a divorce decree are final as to the circumstances then existing, that such provisions will be modified only where it is proven by a preponderance of the evidence that subsequent conditions have so changed that the welfare of the children requires, or at least makes expedient, such modification, that in matters of this kind the children's welfare is the controlling consideration, that not every change of circumstances is sufficient basis for modification of a divorce decree, and that a decree will not usually be modified unless its enforcement will be attended by positive wrong or injustice as a result of the changed conditions.
Pucci v. Pucci, 259 Iowa at 432-33, 143 N.W.2d at 357.
Such changed conditions must be such as were not within the knowledge or contemplation of the court when the former decree was entered, and a modification should be based upon a change of circumstances more or less permanent or continuous, not temporary. Id., 259 Iowa at 433, 143 N.W.2d at 357; Simpkins v. Simpkins, 258 Iowa 87, 90, 137 N.W.2d 621, 623 (1965); Welch v. Welch, 256 Iowa 1020, 1025, 129 N.W.2d 642, 644 (1964); Jensen v. Jensen, 253 Iowa at 1014-15, 114 N.W.2d at 921.
In Pucci, the modification was sought partially because:
... one child, Lynne, age 9, because of poor health and a poor scholastic showing, was placed in an accredited parochial school, and the older boy, James, age 14, due to scholastic proficiency, had been admitted to Lane Technical High School. Both transfers, being unanticipated, had substantially increased plaintiff's school and transportation expenses.
Pucci v. Pucci, 259 Iowa at 434, 143 N.W.2d at 358.
II. Our de novo review indicates that there has been a substantial change in circumstances since the decree in this case. The trial court found, and our review of the record demonstrates ample support for the finding that Dennis is in need of special schooling. The emotional or educational problems that Dennis is having are not such matters as were contemplated at the time of the entry of the decree. We believe that to deny a modification to deal with Dennis's problems would result in a positive wrong or injustice as a result of the changed conditions.
It is the law of Iowa that the changes considered should be "more or less" permanent in nature and not a temporary condition. It appears in this case that Dennis's condition qualifies as one that is "more or less" permanent. His emotional problem or learning disability (as it seems likely from the record) is a long term condition. The record indicates that Dennis's scholastic difficulties commenced a few years after the entry of the dissolution decree and have continued for several years. The trial court acceded to a request to obtain additional support to make an effort to resolve the problem by the attendance of Dennis at the expensive special school.
As stated in the Pucci:
. . . [A] primary and governing consideration, we have often said, is the best interest of the children, and when occurring changes are substantial, and when an increase seems necessary for proper child care and support, and when the increase will not result in a positive *684 wrong, injustice, or undue burden on the father, it is proper. (citations omitted).
We hold that the difficulties being experienced by the parties' child, Dennis, constitutes a sufficient change in circumstances to justify modification of the child support provisions of the parties' dissolution decree. The award of additional child support for the period of Dennis's attendance at the special school, not to exceed the period of eleven months from the commencement of such extra support, was proper and we affirm the trial court in granting that award.
III. Thomas also complains of the trial court's refusal to make a temporary change in the custody of Dennis. It was his belief that he could take Dennis into his home for a brief period and, obtaining such special help as was available in the public schools at his place of residence, resolve Dennis's problems without the burdensome expense of the special school where Dennis has been going. Such a change in custody would require removal of Dennis from the home where he has lived in the custody of his mother since 1975, and separation of him from his siblings. Both of these conditions are discouraged under Iowa law. In re Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981) (siblings ordinarily should not be separated); Slidell v. Valentine, 298 N.W.2d 599, 605 (Iowa 1980) (noncustodial parent seeking modification of child custody must show a superior ability to minister to child's well-being); In the Interest of Voeltz, 271 N.W.2d 719, 724 (Iowa 1978) (child custody should be quickly fixed and little disturbed). The trial court was correct in refusing Thomas's request for a temporary change in custody.
We affirm the trial court on all issues.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617248/ | 623 So. 2d 1079 (1993)
James Bookout CANTLEY, et al.
v.
Howell HUBBARD, et al.[1]
1911384.
Supreme Court of Alabama.
June 25, 1993.
Terry McElheny and Mary P. Thornton of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, for appellants.
Charles M. Coleman of Crownover, Coleman & Standridge, Tuscaloosa, for appellees.
ALMON, Justice.
This appeal presents a question of construction of a mineral reservation in a 1929 deed. The trial court held that by that deed the grantor reserved all minerals; the heirs of the grantee appeal.
*1080 In 1924, the United States granted a land patent to George Hallman, reserving "to the United States all coal in lands so patented, and to it, or persons authorized by it, the right to prospect for, mine and remove coal from the same upon compliance with the conditions of and subject to the limitations of the Act of June 22, 1910 (36 Stat. 583)." On October 10, 1925, George Hallman conveyed the property to T.J. Hubbard, excepting from this conveyance "all coal in the lands above described and the right to prospect for, mine and remove coal from the same, as the coal is owned by the United States Government." On March 13, 1929, T.J. Hubbard conveyed the property by warranty deed to C.R. Bookout.[2] The deed to Bookout states: "All mineral reserved to the United States."
Pursuant to Rule 22, Ala.R.Civ.P., The River Gas Corporation brought an interpleader action to resolve competing claims to production royalties from three methane gas wells operated by River Gas in the Blue Creek Coal Degasification Field in Tuscaloosa County, Alabama.[3] The accrued royalties were deposited with the trial court pending resolution of the action. The interpleader complaint named as defendants two family groups, the heirs of C.R. Bookout (hereinafter "Bookout heirs")[4] and the heirs of T.J. Hubbard (hereinafter "Hubbard heirs").[5] Each family bases its claim on the 1929 warranty deed from Hubbard to Bookout.
The Bookout heirs moved for a summary judgment, claiming a superior right to the production royalties based on the 1929 warranty deed, which, they argued, conveyed full title to all mineral rights, excluding only the coal originally reserved to the United States. The Hubbard heirs thereafter moved for a summary judgment, arguing that the 1929 warranty deed reserved from the conveyance to Bookout all mineral rights and that all such rights not actually reserved by the United States remained with Hubbard, the grantor. The trial court entered a summary judgment in favor of the Hubbard heirs, holding that the Hubbard heirs were the owners of all accrued and future production royalties from the gas wells in question.
This Court has decided similar questions in Union Oil Co. of California v. Colglazier, 360 So. 2d 965 (Ala.1978); Turner v. Lassiter, 484 So. 2d 378 (Ala.1985); and Howell Petroleum Corp. v. Holliman, 504 So. 2d 277 (Ala.1987).
In Colglazier, the Court construed a deed providing:
"2. There are expressly excepted from the real property described under Paragraph 1 hereinabove the following
". . . .
"(c) An undivided one-half (½) interest in and to the oil and, gas and minerals, lying in, under or upon, [description of the property], same having been reserved to G.C. Coggin Company, Inc., in the certain deed dated December 22, 1950, recorded in Deed Book 520, page 86, of said Probate Records...."
360 So.2d at 967. It was undisputed, however, that the G.C. Coggin Company had never owned any of the mineral rights that it attempted to reserve for itself in the December 22, 1950, deed. 360 So.2d at 966. The question, therefore, was whether the undivided one-half interest, recited to have been reserved in an earlier deed, remained with the grantor or passed to the grantee. 360 So.2d at 967. The Court held that notwithstanding the erroneous reference to the attempted reservation in the prior deed, the deed reserved from the grant an undivided one-half *1081 interest in the oil, gas, and minerals. 360 So.2d at 968. The language referring to the prior ineffective reservation was held to be a mere erroneous recitation of fact that did not operate to void the reservation. Colglazier, 360 So.2d at 968. See 1 Will. & Myers, Oil and Gas Law § 310.1 & n. 8, at 580.13 (1991); 26 C.J.S. Deeds § 140(1), at 1010 (1956).
The Bookout heirs' principal argument is, in effect, that the prior deeds in the chain of title excepting "all coal" as owned by the United States create an ambiguity. In Colglazier, the Court addressed a similar argument by stating:
"Union raises the point that the deed on its face leaves no interest in Conservation [grantor], so that plaintiffs were forced to introduce an extrinsic chain of title to establish their interests in the property. It is contended that introduction of this chain of title created an ambiguity which must be resolved in favor of the grantee, Celeste.
"The fact that plaintiffs, in order to establish their interests, introduced a chain of title which proved that a statement in the Conservation-to-Celeste deed was false did not create an ambiguity in the deed itself. Either the deed was ambiguous or it was not. The question is whether the deed from Conservation to Celeste conveyed one-half of the mineral rights or all of the mineral rights. The trial court correctly found that there was a clear exception of one-half of the oil, gas and minerals. This issue is not affected by the truth or falsity of the disputed clause, since it was merely an erroneous reason for or description of the exception and could not operate to enlarge or diminish the exception. Pich v. Lankford, [157 Tex. 335, 302 S.W.2d 645 (1957) ]."
360 So.2d at 965. Just as the reference to the prior deeds that was necessary to ascertain the grantor's interest in Colglazier did not create an ambiguity, a reference to the prior reservation of coal similarly does not create an ambiguity here.
In Howell Petroleum v. Holliman, supra, the deed in question stated: "It is understood that the mineral rights are excepted." 504 So.2d at 277. Only coal had previously been reservedin the original patent, just as in this case. The opinion is not exactly clear on the point, but it appears that the question was whether the quoted language was merely a reference to the prior reservation of coal or a new reservation of minerals by the grantor. The opinion quotes language from Colglazier and Sanford v. Alabama Power Co., 256 Ala. 280, 54 So. 2d 562 (1951), to the effect that erroneous references to prior reservations did not prevent an effective reservation in the deed in question. Holliman can also be understood by reference to the distinction between exceptions and reservations:
"Typically, although not necessarily, an exception is used to withhold from the conveyance an interest already severed (and usually held by someone other than the grantor).... In contrast, a reservation typically severs an interest different in kind from the fee conveyed."
Earle v. International Paper Co., 429 So. 2d 989, 992 (Ala.1983). Thus, it can be seen that the grantees in Holliman argued in effect that the language in question was merely an exception of the coal interest previously reserved by the United States, not a reservation by the grantor of all other minerals. The Court held the language sufficient to effect a reservation. Similarly, in this case, the Bookouts argue, in effect, that the provision is an exception of the prior coal reservation, not a reservation by Hubbard of all other minerals. Just as in Holliman, the language here effectively reserves all minerals to Hubbard rather than simply excepting the coal previously reserved by the United States.
In Turner v. Lassiter, supra, this Court construed the following language in a deed from Lassiter to Turner:
"`LESS AND EXCEPT all oil, gas and minerals, one-half of which have been reserved by prior owners and one-half of which the undersigned expressly reserves unto himself, his heirs and assigns.'"
Id., 484 So.2d at 379. When Lassiter executed this deed, it was questionable whether one-half of the rights to the oil, gas, and minerals had actually been reserved by prior *1082 owners. The Court held the language of the exception to be unambiguous:
"`LESS AND EXCEPT ALL oil, gas and minerals.' Under the facts of this case: `All' is all. `All' is not ambiguous. `All' is not vague. `All' is not of doubtful meaning."
Id., 484 So.2d at 380. Turner argued that the erroneous recitation of fact concerning reservations by prior owners created an ambiguity and that, therefore, the granting clause, which contained words of inheritance without exception or reservation, should govern. This Court responded:
"We conclude that the deed in the case at issue was not ambiguous and clearly excepted all oil, gas, and minerals. The phrase `one-half of which have been reserved by prior owners' is merely a recitation of fact, which may or may not have been erroneous, and it does not make the deed ambiguous. The deed from Lassiter to the Turners clearly excepted all oil, gas and minerals."
Id., 484 So.2d at 380-81.
In this case, the language "All mineral reserved" clearly reserves all mineral rights from the conveyance to Bookout. The phrase "to the United States" is merely an erroneous recitation of the prior reservation. Therefore, the summary judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
The trial court, and now this Court, have determined as a matter of law that the words "all mineral [singular] reserved to the United States" are unambiguous and mean that the grantor reserved all the minerals, instead of just the coal, which everyone agrees had been reserved in the original patent from the United States. In reaching this conclusion, the majority holds that "[t]he phrase `to the United States' is merely an erroneous recitation of the prior reservation." Opinion at 1082.
I cannot agree with that holding. In view of the language used in the prior conveyances, and particularly the language in the original patent from the United States, which reserves "to the United States all coal in lands so patented, and to it, or persons authorized by it, the right to prospect for, mine and remove coal from the same upon compliance with the conditions of and subject to the limitations of the Act of June 22, 1910 (36 Stat. 583)," it seems to me that the reservation in the subject deed of "all mineral [singular] reserved to the United States," logically refers to the reservation of the coal to the United States in the original patent. At best, the language used in the subject deed contains a latent ambiguity; therefore, I conclude that the summary judgment was inappropriate. Consequently, I must respectfully dissent.
NOTES
[1] This case reached this Court with the style "James Bookout Cantley, et al. v. The River Gas Corporation, et al.," but we have restyled it to reflect the true parties in interest.
[2] We express no opinion as to the possible effect of other conveyances in the chain of title, as no such issue has been raised by either party.
[3] Cf. Vines v. McKenzie Methane Corp., 619 So. 2d 1305 (Ala.1993), which held that a lease of coal and other minerals included coalbed methane gas. The parties did not raise this question below or on appeal. We address this appeal only as it is framed by the parties, and we make no judgment as to possible interests held by any other parties.
[4] The Bookout heirs, the appellants in this case, include James Bookout Cantley, Gertrude B. Pruitt, Clarence C. Bookout, Charles R. Owen, James W. Owen, Foster G. Owen, Sarah B. Morris, Maria J. Bradley, Harriet O. Smith, Nancy N. Tullos, and Jonathan M. Bookout.
[5] The Hubbard heirs, who are the appellees, include Howell Hubbard, Jessie Hubbard Green, Hazel Hubbard Dickey, Sue Hubbard Williams, Margaret Hubbard Xanders, Alma Hubbard, and Betty Hubbard Bryant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617627/ | 135 F. Supp. 40 (1955)
W. J. OHLINGER and Viola Ohlinger, Plaintiffs,
v.
UNITED STATES of America, Defendant.
No. 2860.
United States District Court D. Idaho, S. D.
October 13, 1955.
*41 Branch Bird and Cecil D. Hobdey, Gooding, Idaho, for plaintiffs.
Sherman F. Furey, Jr., U. S. Atty., for defendant.
TAYLOR, District Judge.
This cause is presently before the Court on defendant's motion to reconsider the order of the Honorable Chase A. Clark, Chief Judge of this Court, made and entered herein on August 8, 1955, granting a jury trial.
Said cause was originally tried before the Court, without a jury, on August 26, 1952, and thereafter on March 20, 1953, judgment was made and entered dismissing the action from which judgment plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit. The opinion of the Court of Appeals was filed January 28, 1955, granting a new trial. On April 12, 1955, the defendant United States filed an amended answer and plaintiffs' demand and motion for a jury trial was made and filed herein on July 19, 1955.
At the time of the original trial of this action section 2402 of Title 28, U.S. C.A., provided as follows:
"Any action against the United States under section 1346 of this title shall be tried by the court without a jury."
While the cause was pending in the Court of Appeals, section 2402 was amended, on July 30, 1954, to read:
"Any action against the United States under section 1346 shall be tried by the court without a jury, except that any action against the United States under section 1346(a) (1) shall, at the request of either party to such action, be tried by the court with a jury."
The amended answer of the defendant United States was filed April 12, 1955, but plaintiffs' demand for jury trial was not made until July 19, 1955. Thus it is obvious that plaintiffs did not comply with the requirements of Rule 38(b), 28 U.S.C.A., which provides that any party may demand a jury trial as to any issue triable of right by a jury by serving a written demand therefor upon the other parties at any time after the commencement of the action, but not later than ten days after the service of the last pleading directed to such issue. Rules 6 (b) and 39(b), however, provide that a federal court may, upon motion, and in the exercise of its discretion, where the failure to make a timely demand for jury trial was due to excusable neglect, order a trial by a jury of any or all issues.
Plaintiffs' motion was made and based upon neglect of counsel and was supported by the affidavit of counsel setting forth the reasons and excuses therefor. The Honorable Chase A. Clark deeming said neglect excusable exercised his discretion and made the aforesaid order.
This Court, speaking through the late Honorable Charles C. Cavanah, in Krussman v. Omaha Woodmen Life Ins. Soc., D.C.Idaho, 2 F.R.D. 3, 4, held that "the bare oversight of counsel" was insufficient excuse to grant a jury trial after the ten-day period provided by Rule 38(b). Although the rule as announced there should be applied under ordinary circumstances, it is what might be termed a strict one, and not as liberal *42 as the rule applied by many other courts. Also, the case at bar is distinguishable from the Krussman case in that here plaintiffs' demand for a jury trial was based on circumstances "other than the bare oversight of counsel." At the time this case was originally tried counsel for plaintiffs knew that they were not entitled to a jury. It was reasonable for them to assume that the law would remain the same while the case was on appeal. It is doubtful that any lawyer, under the same or similar circumstances, would have discovered the change in the law any sooner than did plaintiffs' counsel, unless it would have been by mere chance. Counsel made their demand for a jury immediately upon discovering the change, and so it cannot be said they were dilatory after having knowledge of the amendment. Counsel for plaintiffs did not receive the pocket parts for the U.S.C.A. containing the amendment to section 2402 until January 17, 1955.
While the rules were new, any reasonable excuse was accepted as the basis for extending the time after the expiration of the period specified in the rules. 1 Barron and Holtzoff, § 216; Anderson v. Yungkau, 6 Cir., 153 F.2d 685, affirmed 67 S. Ct. 428, 329 U.S. 482, 91 L. Ed. 436; Gallagher v. Delaware & H. R. Corp., D.C.Pa., 15 F.R.D. 1. If unfamiliarity with the new rules during the first few months after their enactment constituted excusable neglect, it would seem that unfamiliarity with an amended statute for the first few months after its enactment should likewise constitute excusable neglect. 2 Barron and Holtzoff, § 892; Albert v. R. P. Farnsworth & Co., 5 Cir., 176 F.2d 198; Container Co. v. Carpenter Container Corp., D.C.Del., 9 F.R.D. 261; Alberti v. Automobile Shippers, D.C.Ohio, 9 F.R. D. 323; Paper Stylists v. Fitchburg Paper Co., D.C.N.Y., 9 F.R.D. 4; Ferris v. Farnsworth Television & Radio Corp., D.C.N.Y., 8 F.R.D. 489; Wilson v. Kennedy, D.C.Pa., 75 F. Supp. 592; Previn v. Barell, D.C.N.Y., 14 F.R.D. 466. The request for a jury trial was made several weeks prior to the opening of the term of court, and there is no showing that the tardy request will inconvenience or prejudice the defendant. The delay of plaintiffs in making the demand for jury trial was due to excusable neglect, and the court's order in allowing a jury trial was a proper exercise of discretion. Rule 39(b). Further, as fraud is alleged as a defense the action is peculiarly one to be decided by a jury, and under the existing circumstances of this case a jury trial should be provided.
The defendant further urges that the amended section 2402 does not apply to the new trial of this case in that the amendment applies only to actions instituted from and after the effective date of said amendment, and that "to hold otherwise would be to give the amendment a retrospective effect not permitted by the clearly expressed law on this question."
A retroactive or retrospective law, in the legal sense, is one that takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past. 82 C.J.S., Statutes, § 412. Remedial or procedural statutes which do not create, enlarge, diminish, or destroy contractual or vested rights, but relate only to remedies or modes of procedure are not within the general rule against retrospective operation, and are generally held to operate retrospectively. 82 C.J.S., Statutes, § 417. A statute merely affecting the remedy may apply to, and operate on, causes of action which had accrued and were existing at the time of the enactment of the statute, as well as causes of action thereafter to accrue, and to all actions, whether commenced before or after its enactment. 82 C.J.S., Statutes, § 421; 11 Am.Jur., Constitutional Law, §§ 373 and 382.
The amendment to section 2402 does not establish a new obligation or impair vested rights, but merely affects the remedy, and is such a law as may properly be applied to pending actions. The amendment relates to procedure only, and *43 is applicable to this action which was filed prior to the amendment. Whitney v. United States, 9 Cir., 8 F.2d 476; Hacker v. United States, 5 Cir., 16 F.2d 702; United States v. Salmon, 5 Cir., 42 F.2d 353; 55 A.L.R. 628; 147 A.L.R. 1228.
Therefore, it is ordered that defendant's motion to reconsider the granting of a jury trial be, and the same is hereby denied; that the order heretofore made and entered herein granting a jury trial is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617620/ | 190 S.W.3d 774 (2006)
TEXAS TECH MEDICAL CENTER, Appellant,
v.
Noemi GARCIA, Appellee.
No. 08-05-00216-CV.
Court of Appeals of Texas, El Paso.
March 2, 2006.
*775 Kamilla L. Stokes, Asst. Atty. Gen., Austin, for Appellant.
Thomas W. Hamrick, Armstrong & Hamrick, El Paso, for Appellee.
Before Panel No. 5 BARAJAS, C.J., McCLURE, and PARKS, JJ. PARKS, J., sitting by assignment.
OPINION
RICHARD BARAJAS, Chief Justice.
This is an interlocutory appeal from the trial court's order denying a plea to the jurisdiction filed by Appellant, Texas Tech Medical Center. In a single issue on appeal, Texas Tech Medical Center alleges the trial court erred in denying its plea to the jurisdiction because Appellee, Noemi Garcia, did not establish a waiver of sovereign immunity under the Texas Tort Claims Act. We affirm the judgment of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On or about December 16, 2002, Appellee fell on a sidewalk while attempting to visit Texas Tech Medical Center. Consequently, Appellee filed suit against Texas Tech Medical Center in which she raised a premises defect claim. Appellee's first amended petition alleged the following:
On or about December 16, 2002, NOEMI GARCIA fell on a sidewalk maintained by Defendant while attempting to visit TEXAS TECH MEDICAL CENTER in El Paso, Texas. At all times relevant herein, Defendant controlled the premises in questions [sic], including the sidewalk and its condition. The Defendant owed Plaintiff the same duty that a private landowner owes a licensee, i.e. the duty of ordinary care to protect the licensee from danger. See Tex. Civ. Prac. & Rem.Code Ann. § 101.022(b).
At the time in question: (1) a condition of the premises created an unreasonable risk of harm to the Plaintiff; (2) the Defendant actually knew of the condition; (3) the Plaintiff licensee did not actually know of the condition; (4) the Defendant failed to exercise ordinary care to protect the Plaintiff from danger; and (5) the Defendant's failure was a proximate cause of injury to the licensee. Defendant knew that the condition of the sidewalk presented a dangerous *776 condition for individuals like Plaintiff who utilized them and had an opportunity to remedy the dangerous condition prior to Plaintiff's injury by the exercise of ordinary care such to protect Plaintiff from the danger. Defendant failed to adequately warn Plaintiff of the dangerous condition and failed to make that condition reasonably safe. The damages and injuries described are the direct and proximate result of Defendant's negligence.
In response, Texas Tech Medical Center filed a plea to the jurisdiction and/or noevidence motion for summary judgment on February 2, 2005. Consequently, Texas Tech Medical Center filed an amended plea to the jurisdiction, no-evidence motion for summary judgment, and traditional motion for summary judgment on May 2, 2005. Texas Tech Medical Center claimed that Appellee's claim failed because she did not allege adequate grounds in her petition to satisfy a waiver of Texas Tech Medical Center's sovereign immunity. It further argued that Appellee "simply delineates the elements of a premises liability cause of action . . . against [Texas Tech Medical Center] as required by the Act and the Texas Supreme Court case law construing the Act." Further, Texas Tech Medical Center contends in its plea that Appellee's allegations are simply conclusory statements.
It appears from the record before this Court that the trial court heard Texas Tech Medical Center's plea to the jurisdiction on May 23, 2005. The record does not contain a transcript of that hearing. On June 8, 2005, the trial court signed an order denying Texas Tech Medical Center's plea to the jurisdiction. This appeal follows.
II. DISCUSSION
In a single issue, Texas Tech Medical Center asserts that the trial court erred in denying its plea to the jurisdiction because Appellee did not establish a waiver of sovereign immunity in accordance with the Texas Tort Claims Act.
Standard of Review
We review a trial court's ruling on a plea to the jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); Texana Cmty. MHMR Ctr. v. Silvas, 62 S.W.3d 317, 320 (Tex.App.-Corpus Christi 2001, no pet.). A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. City of San Augustine v. Parrish, 10 S.W.3d 734, 737 (Tex.App.-Tyler 1999, pet. dism'd). In deciding a plea to the jurisdiction, a court may not weigh the claims' merits but consider only the plaintiff's pleadings and the evidence pertinent to the jurisdictional inquiry. Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex.2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex.2000). When a plea to the jurisdiction challenges the existence of jurisdictional facts, implicating the merits of the plaintiff's cause of action, the trial court reviews the relevant evidence to determine if a fact issue exists. Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004). When we consider a trial court's order on a plea to the jurisdiction, we construe the pleadings in the plaintiff's favor and look to the pleader's intent. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Peek v. Equipment Serv. Co. of San Antonio, 779 S.W.2d 802, 804-05 (Tex.1989). When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. See Peek, 779 S.W.2d at 804-05; Texas Dep't of Corrections v. Herring, *777 513 S.W.2d 6, 9-10 (Tex.1974). On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. See Peek, 779 S.W.2d at 804-05.
The Texas Tort Claims Act contains only a limited waiver of sovereign immunity, including immunity to suit. See Tex. Civ. Prac. & Rem.Code Ann. § 101.025(a) (Vernon 2005). State entities such as Texas Tech Medical Center are ordinarily immune from suits and liability. See Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976). The Texas Tort Claims Act creates an exception to the general rule of immunity "only in certain, narrowly defined circumstances." Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001). The Texas Tort Claims Act specifically waives immunity under the following circumstances. Section 101.021, entitled "Governmental Liability," provides:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005). This grant of immunity permits recovery against the State for injuries in three general circumstances, including (1) the use of motor driven vehicles, (2) the condition or use of personal property, and (3) premises defects, or the condition of real property. County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002).
Recovery for premises liability based on the condition of real property is further restricted by section 101.022, which in relevant part imposes upon the State the duty that a private landowner owes a licensee:
(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.
Tex. Civ. Prac. & Rem.Code Ann. § 101.022(a) (Vernon 2005). This section provides the only means of establishing premises liability against the State. See Miranda, 133 S.W.3d at 233.
A private landowner's duty to a licensee requires that a landowner not injure a licensee by willful, wanton or grossly negligent conduct, and the owner must use ordinary care either to warn a licensee of a condition that presents an unreasonable risk of harm of which the possessor is actually aware and the licensee is not, or to make the condition reasonably safe. State Dep't of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992). Accordingly, the State may be liable for a dangerous or defective condition on its premises if it either (1) injured a person by willful, wanton or grossly negligent conduct, or (2) if the State had actual knowledge of the dangerous condition, the injured person had no such knowledge, and the State failed to warn the person of the condition or make the condition safe. Id.
Here, Appellee did not plead that Texas Tech Medical Center was grossly *778 negligent or that it injured her by willful or wanton conduct. Rather, Appellee pleaded that Texas Tech Medical Center had knowledge of the dangerous condition, the condition of the sidewalk, and it failed to warn her of the condition or make the condition reasonably safe. In this case, Appellee has alleged sufficient facts, that if true, waive Texas Tech Medical Center's immunity from Appellee's premises defect claim under the Texas Tort Claims Act.
Texas Tech Medical Center further argues that Appellee's evidence is not probative and is insufficient to establish a valid waiver of sovereign immunity. Appellee contends that she offered ample evidence in her response to Texas Tech's plea as well as in her response to Texas Tech's motion for summary judgment.
Ordinarily, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 227. However, in this case, after reviewing Texas Tech Medical Center's plea to the jurisdiction and its brief supporting this argument, we find that the plea is based solely on Appellee's pleadings and does not challenge the existence of jurisdictional facts. It is unnecessary in this case to consider the evidence in order to resolve the jurisdictional issue raised by Texas Tech Medical Center. Although in its brief, Texas Tech Medical Center is requesting that we review the evidence attached to the plea to the jurisdiction and no-evidence motion for summary judgment and traditional motion for summary judgment, we find that based on the plea to the jurisdiction, we do not need to inquire into the jurisdictional evidence and further that doing so would be a review of the merits of the suit.[1] As we stated above, the record before this Court does not contain a transcript from the hearing on the plea to the jurisdiction. We are unable to determine whether the trial court considered any jurisdictional evidence and based on a reading of the plea to the jurisdiction, we believe Texas Tech Medical Center does not raise such an issue. In reviewing a plea to the jurisdiction, we do not examine the merits of the case. See Morales v. Liberty Mutual Ins. Co., 169 S.W.3d 485, 487 (Tex.App.-El Paso 2005, pet. filed). Since an appeal on a plea to the jurisdiction is not the proper avenue to reach the merits of a case, we do not reach the second part of Texas Tech Medical Center's argument on appeal.
Having reviewed Texas Tech Medical Center's issue on appeal, we find that the trial court did not err in denying its plea to the jurisdiction. Appellant's sole issue is overruled. We affirm the judgment of the trial court.
NOTES
[1] We are cognizant of the Texas Supreme Court's decision in Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004), in which the Court stated that a court may delve into the merits of a claim when the jurisdictional issue is closely intertwined with the merits of the case and that this procedure generally mirrors that of a summary judgment under Tex.R. Civ. P. 166a(c). See Miranda, 133 S.W.3d at 227-28. The issue before this Court on this particular appeal is muddled by the fact that Texas Tech Medical Center filed its plea to the jurisdiction in conjunction with its no-evidence motion for summary judgment and traditional summary judgment motion. Based on a careful reading of the record, the plea to the jurisdiction does not require the consideration of any evidence. The review that Texas Tech Medical Center is requesting this Court to under take derives from the arguments raised in the no-evidence motion for summary judgment and traditional motion for summary judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617268/ | 190 S.W.3d 447 (2006)
NORTHWEST PROFESSIONAL CONDOMINIUM ASSOCIATION, Plaintiff/Respondent,
v.
Tshiswaka KAYEMBE, Defendant, and
Midwest Health Professionals, Garnishee-Defendant/Appellant.
No. ED 86289.
Missouri Court of Appeals, Eastern District, Division Three.
March 28, 2006.
Motion for Rehearing and/or Transfer Denied May 4, 2006.
Spencer Paresh Desai, Ryan J. Mason, Co-Counsel, St. Louis, for appellant.
Nelson Lewis Mitten, Clayton, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 4, 2006.
BOOKER T. SHAW, Judge.
Midwest Health Professionals ("Garnishee") appeals from the trial court's judgment denying its motion for "Relief from an Irregular and Void Judgment" pursuant to Rule 74.06(b). Garnishee sought to set aside a default judgment because the amount awarded to Northwest Professional Condominium Association ("Garnishor") was in excess of the amount Garnishee was liable to Tshiswaka Kayembe ("Employee").[1] We reverse and remand for proceedings consistent with this opinion.
Facts and Procedural History
A judgment was entered in favor of Garnishor and against Employee in the amount of $53,318.60 on June 27, 2002. On December 10, 2003, a garnishment was issued to Garnishee returnable March 9, 2004. Garnishee failed to respond or answer the garnishment and interrogatories, due ten days after the return date of the garnishment. Garnishor filed a Motion to Compel, and Garnishee failed to appear at the hearing. An Order to Compel was entered on June 1, 2004. Garnishor sent a certified letter, with a copy of this Order to Garnishee, again, advising Garnishee *448 that it had ten days to respond to the interrogatories. Garnishee failed to answer the interrogatories and Garnishor filed a Motion for "Judgment Against Garnishee" on June 21, 2004. Garnishee sought the entire unpaid balance of the judgment against Employee in the amount of $63,787.73. On September 7, 2004, a hearing was held on this Motion. Counsel for Garnishee entered his appearance. At this hearing, Garnishee was given leave to file a response to Garnishor's breakdown of the judgment and Garnishor's memorandum in support of the motion.[2] Garnishee, again, failed to answer the interrogatories or respond to Garnishor's breakdown of the judgment or memorandum. On September 10, the trial court entered a judgment against Garnishee in the amount of $64,161.30, which included the amount of Garnishor's underlying judgment against Employee and attorney's fees. On March 17, Garnishee filed a motion entitled "Motion for Relief From an Irregular and Void Judgment," pursuant to Rule 74.06(b), which was ultimately denied.[3] This appeal follows.
Analysis
Our standard of review is limited to whether the "record convincingly indicates an abuse of the broad discretion which is vested in the trial court when ruling on a Rule 74.06 motion." Jeffries v. Jeffries, 840 S.W.2d 291, 293 (Mo.App. E.D.1992). Garnishee's sole issue on appeal is that the trial court erred in entering a default judgment in favor of Garnishor because the trial court did not first determine the amount Garnishee owed to the Employee. We agree.
In a similar case, our Court held that "[a] default judgment is void or irregular unless the court first determines the amount due from garnishee, if any, to defendant. . . ." Butler v. Physicians Planning Service Corp., 724 S.W.2d 334, 336 (Mo.App. E.D.1987). In Butler, wife received an execution and garnishment against husband for unpaid child support, but garnishee failed to answer the interrogatories. Id. at 334. A default judgment was entered against garnishee. Id. Garnishee appealed and claimed the judgment was erroneously entered "absent proof of a sum due from garnishee to husband." Id. at 335. This Court agreed. We analyzed the statutes and rules governing garnishment procedures, specifically Section 525.170, RSMo 1986, and former Rule 90.16.[4]
Section 525.170, RSMo 2004,[5] states the following:
Such judgment by default may be proceeded on to final judgment, in like manner as in case of defendants in other civil actions; but no final judgment hall be rendered against the garnishee until there shall be final judgment against the *449 defendant, and in no case for a greater amount than the amount sworn to by the plaintiff, with interest and costs, or for a greater amount than the garnishee shall appear to be liable for to the defendant.
(Emphasis added). We find Section 525.170 controlling here. This finding is consistent with our caselaw and Missouri Supreme Court Rule 90.08. See Butler, 724 S.W.2d at 334; Beatty v. Conner, 923 S.W.2d 455 (Mo.App. W.D.1996); Rule 90.08.
Garnishor, however, argues that the enactment of Rule 90.08 in 1999 and Section 525.140, by implication, eliminate the conditions of Section 525.170, thereby allowing Garnishor to obtain a default judgment for the entire amount of the underlying judgment. Garnishor contends that the rationale in Butler can no longer be followed because Rule 90.08 was not in effect at the time Butler was decided. Rule 90.08 states:
If the garnishee fails to answer or improperly answers interrogatories, the court shall, upon motion, order the garnishee to answer or properly answer the interrogatories. Failure of the garnishee to comply with such an order may, upon motion of the garnishor or the court, subject the garnishee to a finding that the garnishee is in default, and the garnishor may take judgment by default against the garnishee.
When a garnishee files interrogatory answers after having been so ordered by the court, the garnishor shall be allowed to file exceptions to such answers in the same manner as provided by Rule 90.07(c).
Section 525.140 states the following:
Upon the filing of the interrogatories aforesaid, the garnishee shall exhibit and file his answer thereto, on oath, within six days thereafter, if the term shall so long continue, if not, during such term, unless for good cause shown the court shall order otherwise. In default of such answer, the plaintiff may take judgment by default against him, or the court may, upon motion, compel him to answer by attachment of his body; provided, in all cases where the garnishee is a corporation and fails to answer as above provided, the court may, upon motion, compel said corporation to answer by attaching the body of the president, secretary, treasurer, auditor, paymaster or deputy paymaster of such corporation, in which case the said corporation shall be liable for all the costs accruing by reason of such attachment.
We disagree with Garnishor. Garnishor seeks to have this Court interpret Rule 90.08 and Section 525.140, without regard to Section 525.170. However, a statute pertaining to a procedural matter which is not inconsistent with any supreme court rule, shall be enforced. See State ex rel. Kinsky v. Pratte, 994 S.W.2d 74, 76 (Mo. App. E.D.1999). Although we disapprove of Garnishee's conduct, this Court would be in error to interpret this Rule as granting a new right to garnishors or altering a substantive right of garnishees.
Rule 90.08 was promulgated by the Missouri Supreme Court pursuant to its authority under the Missouri Constitution. Article V, Section 5 reads in pertinent part: "The [S]upreme [C]ourt may establish rules relating to practice, procedure and pleading for all courts . . . which shall have the force and effect of law. The rules shall not change substantive rights. . . ." Mo. Const., Art. V, Section 5 (1945). The rules adopted by the Missouri Supreme Court supercede all statutes and court rules inconsistent therewith. See Rules 19.02 and 41.02. The Missouri Supreme Court has distinguished procedural law *450 and substantive law in the context of its authority as follows:
Procedural law prescribes a method of enforcing rights or obtaining redress for their invasion; substantive law creates, defines and regulates rights; the distinction between substantive law and procedural law is that substantive law relates to the rights and duties giving rise to the cause of action, while procedural law is the machinery used for carrying on the suit.
Kinsky, 994 S.W.2d at 76 (quoting Wilkes v. Missouri Highway and Transportation Commission, 762 S.W.2d 27, 28 (Mo. banc 1988)).
Here, Rule 90.08 and Sections 525.140 and 525.170 can be construed together and each can be given effect. See Kinsky, 994 S.W.2d at 76. Rule 90.08 creates a procedure to enforce garnishor's rights in a garnishment proceeding. It does not create a new substantive right. Rule 90.08 is a counterpart to Section 525.140. Section 525.140 and Rule 90.08 do not by implication, or otherwise, dispense with the requirements of Section 525.170. "If by any fair interpretation both [statutes] can stand, there is no repeal by implication and both should be given effect." Dillen v. Remley, 327 S.W.2d 931, 935 (Mo.App. 1959). Section 525.140 and Rule 90.08 relate to the time frame for a garnishee to file his answers and, most importantly, allow the trial court to compel answers from the garnishee. This Statute and Rule further provide that when garnishee fails to answer, the trial court may enter a default judgment. When a garnishee fails to answer and a trial court enters a default judgment, Section 525.170 sets forth the parameters of "such judgment by default." It informs the trial court that no default judgment may be rendered final until certain conditions are met. Those conditions are that there must be a final judgment against the garnishee, and the judgment must "in no case [be] for an amount greater than the amount sworn to by plaintiff" or a "greater amount than the garnishee shall appear to be liable to defendant." See Section 525.170.
Conclusion
The trial court did not err in entering a default judgment against Garnishee. However, such judgment could not be rendered as final until the trial court determined the amount Garnishee was liable to Employee. Further, the record reveals that Garnishee concedes that a judgment should have been entered against it, in amounts calculated under Section 525.030.[6] Therefore, we reverse and remand for the trial court to determine the proper amount of the default judgment pursuant to Section 525.030 and for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
KATHIANNE KNAUP CRANE, P.J., and LAWRENCE E. MOONEY J., concur.
NOTES
[1] Employee was also a shareholder of Garnishee.
[2] The record on appeal does not contain a transcript of this hearing.
[3] Because the motion for relief filed by Garnishee was filed within both a year and a reasonable time, this Court will not delve into the distinction between a "void" and "irregular" judgment. For a lengthy discussion regarding this distinction, see Beatty v. Conner, 923 S.W.2d 455, 458 (Mo.App. W.D.1996) (analyzing the distinction between the two judgments and noting that there is no need to delineate which type of judgment was actually rendered when the motion was brought within permissible time periods for either).
[4] Section 525.170, RSMo 1986 has not been amended. Rule 90.16 tracked the language of Section 525.170, RSMo 1986 and was repealed in the 1981 revision of the Rule. Notably, the Court still relied upon the Rule in its analysis as being a counterpart to Section 525.170. In 1999, Rule 90.08 was enacted.
[5] All further statutory references are to RSMo 2004, unless otherwise indicated.
[6] Section 525.030 is the statute whereby the amount of wages to be withheld are calculated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619924/ | 955 So.2d 300 (2007)
MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE
v.
Benton Rex GORDON, Jr.
No. 2006-JP-01452-SCT.
Supreme Court of Mississippi.
May 3, 2007.
*301 Luther T. Brantley, Darlene D. Ballard, attorneys for appellant.
Benton Rex Gordon, Jr., Appellee, pro se.
EN BANC.
DICKINSON, Justice, for the Court.
¶ 1. A municipal court judge involved himself in ticket fixing by "passing" fourteen traffic tickets to the file over the objections of the issuing officer. The Mississippi Commission on Judicial Performance ("Commission") filed a formal complaint against the judge alleging willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. The Commission and judge submitted to this Court a joint motion for approval of the recommendation of a public reprimand *302 and assessment of costs.[1] In accordance with our constitutional mandate,[2] we conduct the following review.
FACTS AND PROCEEDINGS BEFORE THE COMMISSION
¶ 2. On or about July 20, 2005, Benton Rex Gordon, Jr., Municipal Court Judge, Union, Mississippi, approached Officer Melody E. McNall prior to the afternoon court session to discuss a number of speeding tickets issued by the officer. Judge Gordon explained that several upset Union residents had contacted him, the police chief, and the clerks of the court about the citations. Judge Gordon informed Officer McNall that he intended to "pass" all of the citations to the files and issue warning letters to the defendants instead. Although Officer McNall expressed her disagreement with this course of action, the defendants were advised not to appear in court because their tickets had already been "passed" to the files. In total, Judge Gordon "passed" tickets for fourteen defendants without requiring them to appear in court.
¶ 3. Acting on Officer McNall's complaint, the Commission filed a formal complaint against Judge Gordon charging him with "willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute" in violation of Canons 1,[3] 2 A,[4] 2 B,[5] 3 A,[6] 3 B(2),[7] 3 B(7),[8] and 3 C(1)[9] of the *303 Mississippi Code of Judicial Conduct and Section 177A of the Mississippi Constitution of 1890, as amended.[10] The parties reached an agreement on the charges prior to Judge Gordon filing a response, and they have submitted to this Court a joint motion for approval of the Commission's recommendation of a public reprimand and assessment of costs.
DISCUSSION
¶ 4. "This Court conducts de novo review of judicial misconduct proceedings, giving great deference to the findings, based on clear and convincing evidence, of the recommendations of the [Commission]." Miss. Comm'n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993). However, because we "have the sole power to impose sanctions in judicial misconduct cases," we are obligated to render an independent judgment on the charges. Miss. Comm'n on Judicial Performance v. Gibson, 883 So.2d 1155, 1157 (Miss.2004) (citing Miss. Comm'n on Judicial Performance v. Peyton, 645 So.2d 954, 956 (Miss.1994)). Even though the Commission's findings are considered and are given great weight, this Court is not bound by the findings, and additional sanctions may be imposed. Miss. Comm'n on Judicial Performance v. Whitten, 687 So.2d 744, 746 (Miss.1997).
I. Whether Judge Gordon's conduct constituted willful misconduct prejudicial to the administration of justice which brings the judicial office into disrepute.
¶ 5. Our initial task is to determine whether the Commission appropriately charged Judge Gordon with willful misconduct, which we have defined as follows:
`Willful misconduct in office is the improper or wrongful use of the power of his [or her] office by a judge acting intentionally, or with gross unconcern for his conduct, and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his [or her] authority constitutes bad faith. . . .
`Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.'
In re Anderson, 412 So.2d 743, 745 (Miss. 1982) (quoting In re Nowell, 293 N.C. 235, 248-49, 237 S.E.2d 246, 255 (1977) (emphasis in original)).
¶ 6. Judge Gordon used his position as Municipal Court Judge to fix tickets by "passing" them to the file without requiring the defendants to appear in court and over the objections of the issuing officer. He also engaged in ex parte conversations with defendants. The Commission determined by clear and convincing evidence *304 that Judge Gordon's actions violated Canons 1, 2 A, 2 B, 3 A, 3 B(2), 3 B(7), and 3 C(1) of the Mississippi Code of Judicial Conduct and Section 177A of the Mississippi Constitution of 1890, as amended. We can find no error in the Commission's determination.
¶ 7. Whether Judge Gordon's behavior was actually willful is of no consequence. Miss. Comm'n on Judicial Performance v. Cowart, 936 So.2d 343, 347 (Miss.2006). "The result is the same regardless of whether bad faith or negligence and ignorance are involved and warrants sanctions." In re Anderson, 451 So.2d 232, 234 (Miss.1984).
¶ 8. This Court historically has taken a firm stance on the practice of ticket fixing. Gunn, 614 So.2d at 389 (citing In re Hearn, 542 So.2d 901, 902-03 (Miss.1989) (judge removed from office for continuing to fix tickets)). We have, without exception, found such behavior to constitute misconduct. See, e.g., Cowart, 936 So.2d at 347 (willful misconduct for judge to contact an officer and dispose of traffic violations without hearings or notice to the issuing officer); Miss. Comm'n on Judicial Performance v. Williams, 880 So.2d 343, 346 (Miss.2004) (willful misconduct for judge to find four defendants "not guilty" of speeding violations before defendants appeared in court or had their cases set for trial); Miss. Comm'n on Judicial Performance v. Boykin, 763 So.2d 872, 874 (Miss.2000) (willful misconduct for judge to dismiss tickets based on ex parte communications with the defendants without holding hearings or notifying the issuing officers); Gunn, 614 So.2d at 389 (willful misconduct for judge to dismiss traffic tickets without holding hearings or notifying the issuing officers).
¶ 9. Likewise, this Court has repeatedly characterized a judge's participation in ex parte communications as willful misconduct. See, e.g., Cowart, 936 So.2d at 347 (ex parte communication with plaintiff in a domestic violence case was willful misconduct); Miss. Comm'n on Judicial Performance v. Blakeney, 848 So.2d 824, 826 (Miss.2003) (ex parte communication with police officer in DUI and drug possession case was willful misconduct); Boykin, 763 So.2d at 874 (ex parte communications with multiple defendants in traffic violation cases was willful misconduct); Miss. Comm'n on Judicial Performance v. Vess, 692 So.2d 80, 84 (Miss.1997) (ex parte communications with criminal defendant, arresting officer, and prosecutor was willful misconduct).
¶ 10. In accordance with this precedent, we find that Judge Gordon's conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Accordingly, we adopt the Commission's findings.
II. Whether Judge Gordon should be publicly reprimanded and assessed all costs as recommended by the Commission.
¶ 11. The Commission has recommended that Judge Gordon be publicly reprimanded and assessed all costs associated with this proceeding in the amount of $100. The Commission and Judge Gordon have signed an Agreed Statement of Facts and Proposed Recommendation to this effect, and the agreement was unanimously accepted and adopted by the Commission. However, "[i]mposing sanctions is left solely to the discretion of this Court," and we endeavor to match the sanction with the offense at issue. Cowart, 936 So.2d at 347.
¶ 12. Pursuant to this Court's holding in Gibson, 883 So.2d at 1158, this Court must review the following mitigating *305 factors when determining the appropriateness of a recommended sanction:
(1) The length and character of the judge's public service.
¶ 13. The violations at issue occurred during Judge Gordon's twelfth year as a municipal court judge. The record is silent as to the character of his service.
(2) Whether there is any prior case law on point.
¶ 14. A great deal of judicial precedent exists on these issues. See case law cited infra.
(3) The magnitude of the offense and the harm suffered.
¶ 15. Judge Gordon's willful misconduct violated Canons 1, 2 A, 2 B, 3 A, 3 B(2), 3 B(7), and 3 C(1) of the Mississippi Code of Judicial Conduct and Section 177A of the Mississippi Constitution of 1890, as amended. The violation of multiple Canons and the Mississippi Constitution itself reflects the seriousness of the misconduct.
¶ 16. The harm caused by Judge Gordon's behavior extended beyond injuries to the integrity of his judicial office. His conduct compromised in multiple ways the integrity of Officer McNall, as well as our system of justice. For instance, Judge Gordon's actions gave the impermissible (but apparently correct) impression to some Union residents that they had sufficient influence over him to deny the prosecution a fair opportunity to present its case against the defendants at trial. Finally, as stated by the Commission, "the residents of Union, Mississippi, were deprived of the municipality's legitimate interest in punishing drivers who violate the [city's speed limits]."
(4) Whether the misconduct is an isolated incident or evidences a pattern of conduct.
¶ 17. The only prior disciplinary matter involving Judge Gordon is an unrelated, informal Commission action in 1994. Therefore, the record does not demonstrate that Judge Gordon's actions evidence a pattern of misconduct.
¶ 18. Judge Gordon improperly "passed" fourteen tickets to the file for fourteen different defendants without requiring any of them to appear in court. This action was taken despite the clearly voiced objection of the issuing officer. However, these violations were relatively close in time and were collectively the subject of one disciplinary action against Judge Gordon.
(5) Whether moral turpitude was involved.
¶ 19. In Gibson, this Court defined moral turpitude to include "actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute." 883 So.2d at 1158 n. 2. The Commission argues that "[t]he act of `ticket fixing' interferes with the administration of justice by interfering with the judicial process," and therefore, Gordon's conduct involves moral turpitude. See Cowart, 936 So.2d at 350.
¶ 20. The bottom line of this element is that we must determine whether a judge's conduct crosses the line from simple negligence or mistake, to willful conduct which takes advantage of a judge's position for greed or other inappropriate motives. If the conduct willfully subverts justice, more punishment is warranted. In this instance, we hold that "fixing tickets" willfully subverts justice; therefore, Judge *306 Gordon has crossed the line of moral turpitude.
(6) The presence or absence of mitigating or aggravating circumstances.
¶ 21. Although there is little in the record before us concerning mitigating or aggravating circumstances, we find it quite significant that Judge Gordon readily acknowledged his inappropriate conduct and took responsibility for his actions.
¶ 22. The above Gibson factors, when considered together under our standard of review, lead us to the conclusion that the Commission's recommendation is insufficient considering the egregious nature of Judge Gordon's conduct. We therefore find that the Commission's recommendation should be enhanced to provide for a thirty-day suspension.
¶ 23. In several prior judicial misconduct cases involving ex parte communications in conjunction with improper ticket fixing, this Court has found a public reprimand and assessment of costs to be appropriate. See Williams, 880 So.2d at 347 ("Often the sanction for `fixing' tickets is a public reprimand, fine, and assessment of costs."); Miss. Comm'n on Judicial Performance v. Warren, 791 So.2d 194, 196 (Miss.2001) (imposing a public reprimand, a $765 fine, and $100 in court costs for "fixing" tickets based on ex parte communications); Gunn, 614 So.2d at 388 (adopting Commission's recommendations for public reprimand and a $400 fine for a judge who "fixed" eight traffic tickets by writing on the ticket or docket book that the charges were dismissed).
¶ 24. In the instant case, Judge Gordon involved himself in ticket fixing by "passing" fourteen tickets to the file without requiring the defendants to appear in court and over the specific objections of the issuing officer. This misconduct was precipitated by Judge Gordon's ex parte communications with some of the defendants. It is true that, in the past, this Court has not always required a suspension for similar conduct. However, since Miss. Comm'n On Judicial Performance v. Sanford, this Court has made it very clear that conduct akin to Judge Gordon's warrants a more severe penalty, including a suspension. 941 So.2d 209 (Miss.2006). In Sanford, we recognized the need for consistency in imposing sanctions but held that where egregious conduct is apparent, the appropriate sanction is not only a reprimand, but also a suspension. Accordingly, Judge Gordon's conduct was egregious, and we find that the Commission's recommendation should be enhanced to provide for a thirty-day suspension.
CONCLUSION
¶ 25. For the reasons herein, we find the egregious conduct of Benton Rex Gordon, Jr., Municipal Court Judge, Union, Mississippi, constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Section 177A of the Mississippi Constitution of 1890, as amended. The Joint Motion for Approval of Recommendations filed by the Commission and Judge Gordon is granted, and accordingly, Judge Gordon is to be publicly reprimanded, suspended for thirty days and assessed $100 in court costs.
¶ 26. JUDGE BENTON REX GORDON, JR., MUNICIPAL COURT JUDGE, SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE OF THE NEWTON COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT AFTER THIS DECISION BECOMES FINAL; IS SUSPENDED WITHOUT PAY FOR THIRTY (30) DAYS FROM AND AFTER *307 THE DATE OF ISSUANCE OF THE MANDATE IN THIS CASE AND ASSESSED COURT COSTS OF $100.00.
CARLSON AND RANDOLPH, JJ., CONCUR. EASLEY AND GRAVES, JJ., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. SMITH, C.J., WALLER AND DIAZ, P.JJ., NOT PARTICIPATING.
NOTES
[1] With regard to this joint motion, we hereby grant in part and deny in part based on the enhanced sentence imposed pursuant to this opinion.
[2] "On recommendation of the commission on judicial performance, the Supreme Court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: . . . (b) willful misconduct in office; . . . or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute. . . ." Miss. Const. art. 6, § 177A.
[3] "An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code should be construed and applied to further that objective." Miss. Code of Judicial Conduct, Canon 1.
[4] "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Miss.Code of Judicial Conduct, Canon 2 A.
[5] "Judges shall not allow their family, social, or other relationships to influence the judges' judicial conduct or judgment. Judges shall not lend the prestige of their offices to advance the private interests of the judges or others; nor shall judges convey or permit others to convey the impression that they are in a special position to influence the judges. . . ." Miss.Code of Judicial Conduct, Canon 2 B.
[6] "The judicial duties of judges take precedence over all their other activities. The judges' judicial duties include all the duties of their office prescribed by law. . . ." Miss.Code of Judicial Conduct, Canon 3 A.
[7] "A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism." Miss.Code of Judicial Conduct, Canon 3 B(2).
[8] "A judge shall accord to all who are legally interested in a proceeding, or their lawyers, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding. . . ." Miss.Code of Judicial Conduct, Canon 3 B(7).
[9] "A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and shall cooperate with other judges and court officials in the administration of court business." Miss.Code of Judicial Conduct, Canon 3 C(1).
[10] See footnote 1, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620345/ | 294 S.W.2d 125 (1956)
Alta CAMPBELL, Appellant,
v.
The STATE of Texas, Appellee.
No. 28208.
Court of Criminal Appeals of Texas.
May 9, 1956.
Rehearing Denied October 3, 1956.
*126 McCarthy, Rose & Haynes, by George S. McCarthy, Amarillo, for appellant.
Gib K. Howard, Dist. Atty., Wayne Bagley, Asst. Dist. Atty., Amarillo, Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
Appellant was convicted under Art. 95, V.A.P.C., of the offense of misapplication of county funds and assessed punishment at two years' confinement in the penitentiary.
The conviction is under the Sixteenth Count of the indictment, which charged that on or about the 31st day of August, 1953, the appellant did fraudulently take, misapply and convert to her own use and benefit, $100 in lawful current money of the United States, being then and there the property of Potter County, Texas.
The state's evidence shows that the appellant was employed as a Deputy County Clerk of Potter County from September 1, 1950, until January 1, 1955, and during such time was in charge of the Court Department of the office, where other deputies worked under her supervision.
It is shown that through this department all fines and costs in criminal cases and fees in civil and probate cases were collected. The records in the office showing the collection of fees in the department consisted of a receipt book, a fee book, cash book, certain envelopes, bank deposit slips, and monthly reports to the County Auditor.
According to the testimony, it appears that when a collection was made in a case, a receipt was issued therefor from a printed receipt book in which the duplicate receipt was retained. The amount collected was also entered in the cash book and fee book. At the end of each day's business the amount collected during the day was placed in an envelope and on the outside of the envelope was written the date, the number of each receipt issued and the amount for which each receipt was written, and the total amount of all receipts listed. The envelope was then delivered to the bookkeeper in the Clerk's Office and would be returned to the Court Department on the following morning and each succeeding day until the bookkeeper made a deposit in the bank of the funds contained in the envelopes, after which time the envelopes were not returned to the Court Department but were kept stored in various places in the Clerk's Office.
It is further shown that the records of the County Clerk's Office for the years 1947 through 1954 were audited by Harvey Todd, a certified public accountant, under a contract of employment made with the Commissioners Court of Potter County in December, 1954.
Auditor Todd testified that from his examination of the records he found evidence of erasures and alterations of the receipt books, fee books, and envelopes in the Court Department and discovered the first evidence of a shortage existing in the department *127 in August or September, 1951. He further testified that in checking the total amount of the bank deposits against the total amounts on the envelopes for which the deposit was made it was ascertained, in many instances, that the bank deposit was for an amount less than the total on the envelopes. His testimony reflects that a shortage existed in the department for each of the years covered by his audit.
The state offered in evidence numerous Exhibits, including duplicate receipts issued in the Department for fines and costs, which indicated erasures and alterations of the words and figures in the amount for which the receipts were originally written.
Among the Exhibits offered by the state was a duplicate receipt No. 6094, dated August 31, 1953, for fine and costs in a certain Case No. 16984, styled The State of Texas v. Arnold Althaus, for the amount of $127.55. The amount for which the receipt was issued was written in words and figures as follows: "127.55 One hundred twenty seven & 55/100," and was signed under the printed name of the Clerk by "AC Deputy." The receipt further shows total fine and costs in the amount of $227.55 and a jail credit of $100.
As a witness for the state, Althaus testified that on August 31, 1953, he paid to the Clerk's Office a total amount of fine and costs in the sum of $227.55, and that he was only confined in jail from a noon on Sunday until the following morning. The witness produced the original receipt No. 6094 issued to him, which was for the sum of $227.55 and did not contain a jail credit of $100.
The evidence further shows that the receipt issued to Althaus was listed on the envelope dated August 31, 1953, and the amount was shown on the envelope as $227.55, and that the bank deposit of the receipts of the department listed on a series of envelopes, including the envelope in question, was $100 less than the totals of the envelopes from which the receipts were deposited.
The testimony further shows that on the morning of April 5, 1955, which was two days before her arrest, the appellant was interrogated in the Sheriff's Office of Potter County, in the presence of Sheriff Paul Gaither, District Attorney Gib Howard, County Auditor Boone Mooreland, and Auditor Harvey Todd, in regard to the shortage in the Clerk's Office.
Sheriff Gaither testified that in the conversation the appellant, upon being shown certain receipt books which had been altered or erased, stated that they were in her handwriting; that she had done the alterations and that they were in her handwriting; and then stated she had a list upstairs or at her home "that might help;" that she left and returned saying that the paper was at her home and then left again and returned with three sheets of paper upon which were listed many dates, numbers and amounts. The three sheets of paper delivered by the appellant and introduced in evidence as State's Exhibit No. 182 include the following notation: "8-31-53 XXXX-XXXXX 227.55 200.00 100.00."
Auditor Mooreland testified that in the interview the appellant admitted that she had changed some of the receipts which appeared to have been altered and further testified: "As best I remember, she said she had a list of the alterations `I made, as to the alterations I have made.'" before she left and returned with the papers introduced as State's Exhibit No. 182.
District Attorney Gib Howard testified that after the interview with the appellant on the morning of April 5 the appellant came to his office that afternoon, at which time they had the following conversation:
"Then she asked me, `well, Mr. Howard, couldn't you tell the grand jury that this list I brought in is an IOU, and that some way I can pay the *128 money back?' and I again informed her we would just have to present the facts to the grand jury and let them be developed, and that she should get out of her mind the idea of ending her life; and then I asked her if she wouldn't like to talk to her minister, and she said yes, and I asked who her minister was and she said Dr. Carl Bates, of the First Baptist Church. I then asked if she was the only person involved in the theft of the money down in the county clerk's office, and she stated that she was the only one; that she didn't want anyone else to get into trouble, that she was the only one involved in it."
Appellant did not testify, but offered character witnesses who testified that her reputation for truth and veracity and for being a peaceable and law-abiding citizen was good.
Dr. Carl Bates, Pastor of the First Baptist Church of Amarillo, testified that he had a conversation with the appellant on the afternoon of April 5, 1955, and in the conversation the appellant stated: "I am not responsible for what I am being accused of, I am not involved in the thing," and that she was not responsible for the shortages.
By Bill of Exception No. 1 appellant complains of the action of the court in overruling her motion to quash the indictment on the ground that it charged the commission of nineteen (19) separate and distinct offenses in separate counts.
The record reflects that, after overruling the motion, the court granted the appellant's motion to require the state to elect upon which count it would proceed to trial and the state elected to proceed to trial under Count Number 16 of the indictment and that such count was the only count in the indictment submitted to the jury in the court's charge.
An indictment charging separate and distinct offenses in different counts is subject to the objection of misjoinder; however, an election by the court or by the state will cure a mere misjoinder of offenses set out in different counts. Branch's Ann.P.C., Sec. 506, Page 259; Collins v. State, Tex.Cr.App., 43 S.W. 90.
The record reflects that the evidence admitted relative to offenses charged under the other counts of the indictment was not offered for the purpose of proving such counts but was admitted as showing system, intent, or as a circumstance showing appellant's guilt of the offense charged in the one count submitted to the jury.
The election by the state to proceed to trial upon Count Number 16 of the indictment therefore cured any error of misjoinder in the indictment and no error is shown in the refusal of the court to sustain appellant's motion to quash.
By Bills of Exception Nos. 2 and 3 appellant contends that the court violated the rule prohibiting proof of extraneous offenses in permitting the state to introduce testimony and Exhibits pertaining to other transactions in the Court Department on various dates from the year 1951 through the year 1954.
The record reflects that over the appellant's objection the state was permitted to offer in evidence 174 Exhibits consisting of duplicate receipts, envelopes, bank deposits, entries in the fee and cash books, which related to fines and costs collected in certain cases on various dates during the years 1951 through 1954 which reflected erasures and alterations on the duplicate receipts and discrepancies in the records and resulting shortage of funds in the Court Department during such period of time.
It is the appellant's contention that since the Exhibits related to separate transactions on dates other than the date that the offense was charged to have been committed in Count Number 16 of the indictment they were inadmissible as being extraneous *129 transactions, while the state insists that such evidence was admissible to show the system used by appellant in the transaction of August 31, 1953, which was the basis of the offense charged in the Sixteenth Count of the indictment and also admissible as proof of appellant's intent in the transaction.
The general rule which prohibits evidence of extraneous offenses has certain well-recognized exceptions. Under the exceptions to the rule, evidence of extraneous offenses is admissible where it shows system, intent, knowledge, identity, etc. Crutchfield v. State, 144 Tex.Cr.R. 291, 162 S.W.2d 699; and Lawson v. State, 148 Tex.Cr.R. 140, 185 S.W.2d 439.
In West v. State, 140 Tex.Cr.R. 493, 145 S.W.2d 580, 584, this Court in discussing the meaning of the term "system," said:
"By `system', as we understand the term, is meant the use of the same means, the same manner and method of accomplishing a previously planned objective."
In the early case of Hennessey v. State, 23 Tex.App. 340, 5 S.W. 215, in which the appellant was charged with forging or altering an account against the State of Texas, the Court, in holding certain post-office receipts in other transactions admissible in evidence, quoted with approval the rule set out in Sec. 38 of Wharton's Criminal Evidence, as follows:
"When the object is to show system, subsequent as well as prior offenses, when tending to establish identity or intent, can be put in evidence. The question is one of induction, and the larger the number of consistent facts, the more complete the induction is. The time of the collateral inculpatory facts is immaterial, provided that they be close enough together to indicate that they are part of a system."
The rule referred to and quoted in the Hennessey case was again quoted with approval in the case of Vaughn v. State, 138 Tex.Cr.R. 62, 134 S.W.2d 290, in which case it was held that in a prosecution for theft by means of a confidence scheme testimony as to other similar transactions engaged in by the accused was admissible to show intent and system.
In Vigil v. State, 148 Tex.Cr.R. 91, 184 S.W.2d 926, 928, the accused, who was a route salesman for the Coca Cola Company, was prosecuted for embezzlement growing out of his changing the figures on a slip showing the number of empty cases he was returning to the company. Over objection, the state was permitted to introduce in evidence some twenty other slips made during a period of two months prior to the date of the alleged offense on which the figures had been changed.
In holding the evidence admissible, Judge Graves, speaking for the Court, said:
"We think the admission of such other offenses evidence a system, as well as are usable by the jury in establishing appellant's intent in thus altering or changing the slip on the recording machine."
In proving the appellant's guilt, it was incumbent upon the state to prove her identity and fraudulent intent in the transaction of August 31, 1953. Although appellant did not testify, the testimony of Dr. Bates that she had told him she was not involved or responsible for the shortages, together with her plea of not guilty, was a denial of guilt and raised the issue of her identity and intent in the transaction.
We think that the evidence of the other transactions similar to the transaction in question was admissible to show system and in proof of the appellant's identity and fraudulent intent.
The fact that some of the altered receipts admitted in evidence may not have been issued by the appellant did not render them inadmissible as the record reflects that *130 they were written and issued in the department over which the appellant had supervision.
Bills of Exception Nos. 4 and 5 relate to appellant's objection to that portion of the court's charge which limited the jury in their consideration of the evidence offered concerning extraneous offenses and to the refusal of the court to give appellant's requested charge which would in substance have instructed the jury not to consider for any purpose the evidence introduced of extraneous offenses.
The court instructed the jury as follows:
"If there is evidence before you concerning various other transactions other than the alleged offence particularly set out in this indictment, you are instructed that this evidence was admitted before you solely for the purpose of showing, if it does, the system, if any, by or under which this defendant operated in the handling of the transaction specifically mentioned in the indictment, and of showing, if it does, the intent of this defendant as to the handling of the transaction alleged in the indictment and the obtaining of the money as alleged in the indictment, and for no other purpose. If you consider it at all, you will consider it solely for the purpose for which it was admitted, and for no other, as proof of any other transaction is not proof of the charge contained in this indictment."
In Vigil v. State, supra, a similar instruction was approved by this Court as a correct instruction limiting the jury's consideration of evidence offered of extraneous offenses.
Under the record, the appellant was shown to have been sufficiently connected with the extraneous transactions as to authorize the instruction given in the court's charge.
Finding the evidence sufficient to support the conviction, and no reversible error appearing in the record, the judgment is affirmed.
Opinion approved by the court.
On Appellant's Motion for Rehearing
WOODLEY, Judge.
Though some of the altered receipts introduced over objection were written and issued by other deputy clerks working under appellant's supervision, it was the theory of the State, supported by the circumstances and the admissions of appellant, that she made the alterations and erasures shown in the receipt books and was the only person involved in the theft of money from the Clerk's office. We remain convinced that these altered receipts were admissible, including those originally written and issued by other deputy clerks.
The testimony offered in appellant's behalf through her pastor, Dr. Bates, appears to raise the issue that any shortages or discrepancies disclosed by the audit were in some way due to the system of accounting used in the clerk's office and perhaps to the carelessness of others, for which she was not responsible.
If, as contended, it was necessary that a defense of lack of fraudulent intent be raised, the testimony of Dr. Bates made the testimony as to altered records other than the receipt dated August 31, 1953, admissible.
Appellant's motion for rehearing is overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617251/ | 38 So. 3d 1243 (2010)
STATE of Louisiana
v.
Bianca TURNER.
No. 09-1541.
Court of Appeal of Louisiana, Third Circuit.
June 2, 2010.
Hon. Charles A. Riddle III, District Attorney, Miche', Moreau, Assistant District Attorney, Marksville, LA, for Plaintiff/Appellee, State of Louisiana.
Donald Ray Dobbins, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant, Bianca Turner.
Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
SAUNDERS, Judge.
Defendant, Bianca Turner, was charged by bill of information with one count of aggravated second degree battery, a violation of La.R.S. 14:34.7. A jury trial commenced on July 7, 2009, and on the same date, Defendant was found guilty as charged. Defendant was sentenced on August 25, 2009, to six years at hard labor with credit for time served. A "Motion to Reconsider Sentence," was filed on September 10, 2009, which was denied without a hearing or written reasons.
Defendant has perfected a timely appeal wherein she raises one assignment of error, that the sentence of six years is excessive under the circumstances of the case. For the following reasons, we find that the trial court did not abuse its vast discretion when it sentenced Defendant to six years imprisonment. Accordingly, we affirm Defendant's sentence.
*1244 FACTS:
Defendant went to the home of the victim, Audra Stelly, looking for another friend whom she had fought with earlier in the day. Defendant was armed with a kitchen knife. She argued with Ms. Stelly, they began to fight, and Defendant stabbed Ms. Stelly several times. Ms. Stelly sustained serious, life-threatening injuries and permanent physical damage.
ASSIGNMENT OF ERROR:
For her sole assignment of error, Defendant asserts that the six-year imprisonment at hard labor sentence is constitutionally excessive under the circumstances of her case. We disagree.
While discussing a six-year sentence imposed on a defendant for the offense of aggravated second degree battery, this court stated:
Louisiana Revised Statutes 14:34.7(B) provides that "[w]hoever commits the crime of aggravated second degree battery shall be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not more than fifteen years, or both." Thus, the defendant received a sentence that is less than one-half of what he could have received. Still, a sentence which 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). To constitute an excessive sentence, the penalty must be grossly disproportionate to the severity of the crime or be nothing more than needless imposition of pain and suffering. State v. Howard, 414 So. 2d 1210 (La.1982). Additionally, the trial court is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. Id. Thus, the question before this court is not whether imposition of another sentence would be more appropriate, but whether the trial court abused its discretion. 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).
State v. Lee, 08-456, pp. 6-7 (La.App. 3 Cir. 11/5/08), 996 So. 2d 1217, 1221-22.
In brief, Defendant argues that the trial court failed to take into consideration several compelling mitigating factors when it fashioned her sentence, with the Defendant's children being the "second most compelling factor for as[sic] lesser sentence[,] because courts traditionally recognize `undue hardship' on innocent children when imposing sentence." Defendant also points out that she was a first-time felony offender and that she "showed remorse, apologized to the victim, court and their friends."
At the sentencing hearing, Ms. Stelly briefly described her injuries and stated that she thought Defendant should do some time. Defendant also spoke at the hearing, stating "I just want to apologize to Audra and her family for what I did."
The trial court noted for the record that it had received several letters regarding Defendant's potential to be an upstanding, law-abiding citizen, noting that while several of the letters indicated that she would not deliberately hurt anyone, it was obviously not true in the current case. The trial court stated:
What I did in deciding sentencing is I looked at the factors that are set forth in Article 894.1 of the Louisiana Code of Criminal Procedure. I do find that there is an undue risk concerning the activity committed by Bianca Turner in this case. There is a undue risk that during any period of a suspended sentence she would commit another crime. She is in definite need of correctional treatment which can be provided most effectively by commitment to an institution *1245 and any lesser sentence that I issue herein would deprecate or lessen the seriousness of her crime. In reviewing aggravated factors, Ms. Turner[,] I find the following to exists[sic]. First of all[,] your conduct during the commission of this crime manifested deliberate cruelty to Audra Stelly. The evidence adduced at trial confirmed that after the initial altercation between you and another individual you had several occasions and a long period of time wherein you could have removed yourself from any further conflict or refrain from any further criminal activity. Instead, the evidence confirmed that you made a cold and calculated decision to arm yourself with a knife. To go to the home of Audra Stelly seeking out the other person that you were fighting that you had fought with [sic]. However, then getting into an argument with Ms. Stelly[,] and in doing and inflicting [sic] a serious near fatal stab wound to the chest of Audra Stelly. The medical evidence confirms that Audra Stelly was near death. This is deliberate cruelty. The second aggravating factor is that you knowingly created a risk of death or great bodily harm by arming yourself with a knife and you even testified that you had the intent to use the knife. Although not the intent initially on Audra Stelly, you had the intent to use it. The third factor is that you used actual violence, an admission of the offense. The fourth factor is that this offense resulted in a significant, permanent injury to Ms. Stelly which will be the scarring to the chest area and the injuries to the nerve damage in her hand. Also, an aggravating factor is you used a dangerous weapon in the commission of the offense. In considering mitigating factors, these are factors that I have to consider that would help to lessen the sentence. I find the following: No. 1, you have no history of a prior of [sic] any prior criminal activity. No. 2, the imprisonment of you will entail a hardship on your children and No. 3, I received several letters which would constitute mitigating factors.
....
I also looked at prior cases such as yours that went before the higher courts that were reviewed. I found one similar case in State v. Lee, where a first offender such as you received on the crime of this same crime Aggravated Second Degree Battery a six year sentence was not considered to be excessive considering that this was less than one half of the maximum which is fifteen years. I looked at many other cases which seven, eight, nine, ten, eleven, twelve years were given but never for a first offender was that upheld. It was always on a second or third offender or if other crimes were involved. We must also remember that in this case very easily you could have been charged with Attempted Murder instead of Aggravated Second Degree Battery and therefore and which would be facing a much [more] serious sentence.
Given the above, we find that the trial court took adequate consideration of the mitigating factors that contributed to lessening Defendant's sentence, including comparing her situation to similarly situated defendants. See Lee, 996 So. 2d 1217.
In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So. 2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So. 2d 1061, this court noted:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences *1246 imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So. 2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste, 594 So. 2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook, 95-2784 (La.5/31/96); 674 So. 2d 957, 958.
In State v. Livingston, 39,390 (La.App. 2 Cir. 4/6/05), 899 So. 2d 733, our second circuit did not find a thirteen-year sentence excessive for a first-time felony offender who was originally charged with attempted manslaughter, but pled guilty to aggravated second degree battery. The defendant had kicked the victim several times in the face and stomach with steel-toed boots. While the injuries sustained by the victim in the current case were not as severe as the injuries sustained by the victim in Livingston, they were no less life-threatening. In the current case, the trial court presided over Defendant's trial and heard the testimony and was in the best position to sentence Defendant. During the sentencing hearing, the trial court noted that he knew Defendant and her family personally and was aware of the hardships imposed on her and her children, yet had to consider the seriousness of the crime and injury she caused the victim. For all of the above reasons, this court cannot say that the trial court abused its considerable discretion when it sentenced Defendant to six years at hard labor. The term of imprisonment is not such that would shock this court's sense of justice.
DECREE:
Defendant's sentence is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617267/ | 347 N.W.2d 338 (1984)
STATE of South Dakota, Plaintiff and Appellee,
v.
Richard TCHIDA, Defendant and Appellant.
14185.
Supreme Court of South Dakota.
Considered on Briefs January 16, 1984.
Decided April 18, 1984.
Roxanne Giedd, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
*339 David Alan Palmer of Strange, Strange & Palmer, Sioux Falls, for defendant and appellant.
FOSHEIM, Chief Justice.
Richard Tchida was convicted on two counts of grand theft for receiving stolen firearms[1] and two counts of possession of a firearm by one with a prior violent crime conviction.[2] He appeals. We reverse.
In December 1982 two pistols were unlawfully removed from the Schiltz Foods Company in Sisseton, South Dakota. Both firearms were retrieved from a cemetery by the local sheriff's office on January 11, 1983, following an anonymous phone call. Investigation revealed that the pistols had been stolen by two fourteen-year-old boys. The lads arranged with Jonathan and Harlan DuMarce to dispose of the weapons, who together with another adult, Keith DuMarce, allegedly sold the pistols to appellant Tchida. The three DuMarces were given immunity for their testimony which implicated Tchida. Keith DuMarce testified that he told appellant at the time of the sale that the pistols were stolen. That testimony was supported by Harlan DuMarce. The pistols, however, were never found in appellant's possession or linked to him by fingerprints. Appellant claims inadequate assistance of counsel and insufficiency of the evidence. Because we reverse on the first issue, we need not reach the evidence question. We cannot know what quantum of evidence will be received at a new trial.
The State counters that ineffective assistance of counsel may not be raised on direct appeal. In State v. McBride, 296 N.W.2d 551 (S.D.1980), we did hold that post-conviction relief is the most appropriate means to present that issue. In State v. Phipps, 318 N.W.2d 128 (S.D.1982), however, we identified an exception which allows the issue of incompetent counsel to be raised on direct appeal when the representation was "so casual that the trial record evidences a manifest usurpation of appellant's constitutional rights." Phipps, 318 N.W.2d at 131. We reaffirmed that exception in State v. Iron Shell, 336 N.W.2d 372 (S.D.1983).
Appellant notes sixteen areas in which he claims his trial counsel was incompetent. We examine these contentions from the perspective that an attorney is presumed competent and the party alleging incompetency has a heavy burden of establishing ineffective assistance of counsel. Jibben v. State, 343 N.W.2d 788 (S.D.1984); Grooms v. State, 320 N.W.2d 149 (S.D. 1982); State v. McBride, 296 N.W.2d 551 (S.D.1980); State v. Pieschke, 262 N.W.2d 40 (S.D.1978). The test is whether defense counsel exercised "the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances." United States v. Easter, 539 F.2d 663, 666 (8th Cir.1976). In making this review it is not our function to second-guess the tactical decisions of the trial attorney. We will not substitute our own theoretical judgment for that of appellant's defense counsel. Jibben, 343 N.W.2d 788; Grooms, 320 N.W.2d 149.
Viewed in this light, most of appellant's contentions fail, since they relate to making, or not making, motions or objections which are generally trial decisions within the discretion of the attorney. Trial counsel's candid preliminary statement that her experience in the practice of law was limited and that it was her feeling that someone who had practiced criminal law for a longer period would be better able to represent appellant did not overcome her presumed competency. Ineffective counsel must be demonstrated by acts or omissions which cause actual prejudice to the defense. Jibben, 343 N.W.2d 788; Pieschke, 262 N.W.2d 40. Inexperience alone does not mean incompetency.
In examining the record, however, we feel that several other aspects of the representation prejudiced Tchida's defense. The record demonstrates that Tchida *340 stands convicted on the uncorroborated testimony of three accomplices. SDCL 23A-22-8 provides:
A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.
Defense counsel failed to challenge the conviction on the grounds that it was based on uncorroborated testimony. The motion for directed verdict at the close of the State's case did not zero in on the defect, but rather concentrated on the inadequacy of the accomplice testimony. Proper focus on the corroboration question might very well have meant a different result. We conceive no possible defense strategy which would justify allowing the case to go to the jury in that posture without vigorous objection. Additionally, defense counsel failed to propose any jury instructions on the necessity for corroboration, nor did she object when the prosecution moved to have the three accomplices declared hostile witnesses. The record indicates that each was granted immunity from the first day of investigation and that they evidenced no hostility at the preliminary hearing. Despite the trial court's warning of the consequences of declaring them hostile witnesses, defense counsel persevered in declaring that she had no objection.
Another unexplainable inadequacy was counsel's failure to give timely notice of an alibi defense. The information alleged the receipt of stolen firearms occurred on December 25, 1982. On the back of both informations the prosecuting attorney requested that the defense give timely notice of intention to use an alibi defense pursuant to SDCL 23A-9-1 and 23A-8-4. The defense did not provide notice within the statutory ten days after request but moved for the first time during trial to allow introduction of an alibi defense that appellant was with his relatives on that day and evening. The motion was properly denied. Due to the untimely notice, Tchida was accordingly deprived of an alibi defense. From the informations, defense counsel had early notice of the date an alibi defense would have to meet. State v. Reiman, 284 N.W.2d 860 (S.D.1979).
The scant record available on direct appeal makes it difficult to assess the other alleged deficiencies of counsel. We do, however, deem the inadequacies discussed to be a "manifest usurpation of appellant's constitutional rights," Phipps, 318 N.W.2d at 131, and therefore reverse on direct appeal.
We reiterate our previously stated preference, however, for a means of review other than direct appeals on the adequacy of counsel issue. Our review is facilitated if a record is available which likely would include the testimony of trial counsel. The post-conviction statutes were repealed by the 1983 legislature. The same legislative session correspondingly amended and augmented the habeas corpus procedures of SDCL ch. 21-27. This is now the preferred procedure.
Reversed.
WOLLMAN, DUNN and MORGAN, JJ., concur.
HENDERSON, J., concurs specially.
HENDERSON, Justice (specially concurring).
We must first confront the threshold question. Does this appellant have the right to raise the issue of ineffective assistance of counsel on direct appeal, or must he raise the issue in a habeas corpus proceeding?
As we start down a new fork in the road, by stating that it is preferable to use the habeas corpus vehicle on a journey to determine the effective assistance of counsel, I wish to go on record concerning the journey.
Appellant is entitled, as a matter of constitutional law, to assistance of counsel for his defense. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). *341 Assistance of counsel means adequate and effective assistance of counsel. State v. McBride, 296 N.W.2d 551 (S.D.1980). This right follows the Sixth Amendment standards under the United States Constitution. McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). Adequate and effective assistance of counsel in a criminal case, to my way of thinking, means competent counsel. It means an attorney who can competently prepare and try a criminal case. In McMann, 397 U.S. at 771, 90 S.Ct. at 1449, a test was set forth by the United States Supreme Court which pierced the generic phrase of adequate and effective assistance of counsel to equate it with whether the lawyer's performance "was within the range of competence demanded of attorneys in criminal cases."
I do not believe that this Court has ever postulated a blanket of prohibition against raising a question of ineffective assistance of counsel upon direct appeal. To the contrary, case law has repeatedly held that the plain error rule precludes the need for habeas corpus relief in exceptional circumstances when an appellant's rights are substantially affected. State v. Phipps, 318 N.W.2d 128 (S.D.1982); State v. Lufkins, 309 N.W.2d 331 (S.D.1981); State v. Brammer, 304 N.W.2d 111 (S.D.1981). Indeed, in Phipps, 318 N.W.2d at 131, we stated:
Generally, this court has considered the issue of inadequacy of counsel only on appeal from post-conviction hearings, but where the defense at trial was so ineffective and counsel's representation so casual that the trial record evidences a manifest usurpation of appellant's constitutional rights, the claim of ineffective assistance of counsel will be reviewed on direct appeal. (Citation omitted.)
There is, therefore, a historic case law exception.
The Habeas Corpus Act, SDCL ch. 21-27, was amended by 1983 S.D.Sess.Laws ch. 169, §§ 1-14, inclusive. Under these amendments, the issue of ineffective assistance of counsel can directly be brought before a circuit court for hearing. A record can be then made and a ruling be had thereon. If necessary, an appeal may flow therefrom. SDCL 21-27-1; SDCL 21-27-14.1. I do not consider this an exclusive remedy and if there are egregious cases of noneffective assistance of counsel, I do not wish to see this Court defer the matter to the circuit courts of this state. We are, in the end, the deciders of constitutional law questions. There can be cases where the appellant's rights were so neglected or unattended to by an attorney that we should speak out and call a spadea spade.
In this specific case, appellant and his appellate counsel are caught in a period of transition in this state. The notice of appeal was filed on April 28, 1983, and appellate counsel was not appointed until on or about May 26, 1983. The Post-Conviction Procedure Act was repealed by the 1983 Legislature. Appellate counsel, having been appointed, and a notice of appeal having been filed, was in no position, in my opinion, to forsake this appeal and to gamble on a habeas corpus proceeding as a substitute when the latter was in a nebulous stage. Thus, I address the contentions in this appeal and conclude that the Habeas Corpus Act, as amended, although the new preferred route to go, is not the only route where an appellant has suffered a manifest usurpation of constitutional rights resulting from the incompetence of an attorney in a criminal case.
According to the record, it took the jury thirty-seven minutes to deliberate on four felony counts and return a verdict. Appellant was sentenced to serve twelve years for each grand theft conviction and five years for each conviction of possession of a firearm by one with a prior violent crime conviction. These sentences were ordered to be served concurrently. Total sentence: Thirty-four years in the State Penitentiary.
I respect the frankness of this attorney's position before the trial court. Bluntly, she told the court that she had a limited practice of law, limited resources, and questioned her own ability to effectively represent appellant. After the preliminary *342 hearing, she told appellant (all of this in front of the trial court in open court) that she felt someone else who had experience in criminal law in South Dakota should represent appellant and that one of the reasons was the seriousness of the charges. With reference to the limited resources, she expressed that her limited resources would not avail appellant the best possible defense. This attorney indicated, prior to trial, that she felt her resources would pose a problem in her representation and the ability to spend the necessary time to prepare for trial.
Trial counsel failed (1) to file any motion for discovery, (2) to file notice of an alibi defense, yet tried to bring it in through a witness to question the credibility of a State witness, (3) to make a motion to sever the charges which resulted in a prior felony conviction being paraded before the jury when appellant had elected not to take the stand, (4) to interview witnesses endorsed on the information because she had received a letter just one week before the trial notifying her of these additional witnesses because she had not had an opportunity to communicate with the witnesses (emphasis mine), (5) to sequester the State's witnesses making it possible for the Sheriff to remain in the courtroom during the trial and to then be called as a witness to establish the consistency of the State's witnesses, (6) to object to the State's request to declare three witnesses as "hostile witnesses" when there was absolutely no showing that these witnesses were hostile, but rather, were friendly to the State, (7) by a repeated failure to make any objections to highly damaging evidence to appellant's defense, (8) to object to the Sheriff's testimony concerning the operability of the guns in question (Sheriff fired same on the second day of trial even though this matter was not in dispute and was called to the witness stand to dramatize that guns would fire), (9) to move the court for a directed verdict relative to noncorroborative evidence of the three DuMarces; this was at least a fact question as to whether they were accomplices, see State v. Dominiack, 334 N.W.2d 51 (S.D.1983), (10) with respect to the latter, failed to move for a judgment of acquittal upon the same grounds, (11) to prevent the destruction of the credibility of a witness called on behalf of appellant by failing to object to the State cross-examining this witness on misdemeanors that the witness had been convicted of, and (12) to propose any jury instructions on behalf of appellant and further failed to object to numerous jury instructions which were highly damaging to appellant and which contained many errors of law; most specifically, court's instruction no. 11 contained language which shifted the burden of proof from the State to the accused. It was an instruction dealing with the "natural, probable, and usual consequences" language which had been condemned in the United States and recently in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). In reviewing these instructions, it is noted that the cover sheet should have been objected to for it contained an instruction which omitted a material element of the offense. Surely, trial counsel should have suggested to the trial court that an instruction of some kind should have been given to the jury concerning the accused's right not to testify.
Writing for this Court in State v. McBride, 296 N.W.2d at 555, we expressed that "[a]ll men charged with crimes are entitled to complete equality at law ...." You cannot have that equality unless you have a fair trial. Further, in McBride, this Court tried to convey the thought that a trial must be viewed as a whole. Each act of omission or commission must be viewed cumulatively so that the composite conclusion is sound. You cannot compartmentalize the effectiveness of an attorney in a trial. His overall performance is either effective or it is not. Not second-guessing this attorney, who openly and frankly confessed inexperience, lack of resources, and time, I simply must conclude that appellant did not receive the constitutional requirement of effective assistance of counsel. This lawyer did not competently prepare and try this criminal case and the overall *343 performance was not within the range of competence demanded by attorneys in criminal cases. Hence, the incompetence was so egregious that this Court should, without benefit of an application of a writ of habeas corpus, rule thereupon. Accordingly, I join the majority.
NOTES
[1] SDCL 22-30A-7 and SDCL 22-30A-17.
[2] SDCL 22-14-15. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617292/ | 347 N.W.2d 873 (1984)
217 Neb. 147
Nancy Kay DENNIS, Appellant,
v.
Kenneth Eugene SMITH, Appellee.
No. 83-692.
Supreme Court of Nebraska.
April 27, 1984.
*875 Avis R. Andrews, Fremont, for appellant.
No appearance for appellee.
KRIVOSHA, C.J., WHITE, and CAPORALE, JJ., and McCOWN and BRODKEY, JJ., Retired.
CAPORALE, Justice.
The petitioner mother, Nancy Kay Dennis, appeals from the denial of her application for custody of the younger of the two minor daughters of the parties. Both daughters are presently in the custody of the respondent father, Kenneth E. Smith, and live with the paternal grandparents. We affirm.
Dennis and Smith were divorced in October of 1978. Custody of their two daughters (the elder having been born in 1965 and the younger in 1968) was awarded to Dennis. In March of 1980 the court decreed, pursuant to a stipulation and agreement made by Dennis and Smith, that custody of the two daughters be placed with Smith. Dennis remarried in April of 1982. In February of 1983 she filed the application at bar, alleging a change in circumstances and asking that she be given custody of both children and that Smith be required to pay appropriate child support. At trial she abandoned her effort for custody of the older child and sought custody only of the younger child, then 15 years of age. This change in Dennis' position was apparently prompted by the older child's desire to continue her present living arrangement.
The scope and nature of our review is set forth in Haake v. Haake, 215 Neb. 889, 891, 341 N.W.2d 911, 912-13 (1983):
In actions such as this, seeking modification of the trial court's order as to custody of children in a dissolution of marriage case, on appeal this court must review de novo the determinations of the trial court with regard to whether a change in circumstances has occurred which justifies the modification of the earlier custody order. We are required to make independent conclusions of fact without reference to the conclusion reached by the trial court, recognizing, however, that we will give weight to the fact that the trial court observed the witnesses and has accepted one version of the facts rather than the opposite.
The record establishes that Dennis attributed the 1980 agreed-upon change in the custody arrangement to the fact that she was then receiving Aid to Families with Dependent Children and Smith was more financially able to provide for the children. It is further the fact, however, that she was involved with a man who was sexually abusing one of the children.
Upon receiving custody of the children pursuant to the 1980 decree, Smith, with Dennis' knowledge, entrusted them to the care of his parents in Fremont, Nebraska, with whom the children continue to live. Smith testified he made those arrangements because he was at that time driving a truck and worked long hours. He has since opened a body shop, where he nets $300 per month. He lives with a woman who does not wish to have the children live with them. Smith makes small contributions to his parents for the support of his daughters.
The children's paternal grandparents have done an admirable job of caring for and nurturing the children. They assure both children's attendance at school and take an interest and participate in the girls' school activities. The children are happy, attend church, and have friends.
Neither Dennis nor her present husband is employed, and they live on a monthly income of $80 in a one-bedroom, rent-subsidized apartment in Lincoln, Nebraska. At the time of trial they were in the process of *876 applying for vocational rehabilitation training and were willing to rent an apartment with two bedrooms. Dennis relies upon the fact that she would be eligible for Aid to Families with Dependent Children payments to supplement her and her husband's present $80-a-month income.
Dennis' mother, although she has not been in contact with her daughter for the last 4 years, states that her daughter is slovenly.
The trial court found that the change in Dennis' circumstances did not warrant a change in custody and that the best interests of the younger child required that the application be denied.
Dennis' 10 assignments of error present the following issues: (1) Was the trial court required to join the grandparents as parties? (2) Did the court err by granting, in Dennis' language, "constructive, if not actual, custody" to the grandparents when Dennis was not proven to be unfit? (3) Were there sufficient changes in circumstances to warrant modification of the previous custody order? (4) Did the trial court fail to give proper weight to the wishes of the younger child?
In support of her contention that there was a defect of parties by failing to join the grandparents, Dennis directs our attention to Tautfest v. Tautfest, 215 Neb. 233, 338 N.W.2d 49 (1983). In that case the original custody order awarded custody of a child to her mother. Shortly thereafter, the mother delivered the child to her parents, who thereafter cared for the child. The father then petitioned for custody. The trial court, on the father's application that custody be awarded to him, awarded custody to the grandparents. We reversed that award, finding that there was no notice given to the father that custody was sought in the grandparents. We further retained custody in the mother, recognizing that the living arrangements the mother had made served the best interests of the child.
We do not understand what support Dennis draws from Tautfest. In the present case the paternal grandparents did not seek, and the court did not award them, custody of the child in question. It simply refused to take custody of the younger child from her father, who had arranged for her to reside with his parents.
Dennis further argues that Neb.Rev. Stat. § 43-1210 (Cum.Supp.1982) requires joinder of the grandparents. That statute provides:
If the court learns from information furnished by the parties pursuant to section 43-1209 or from other sources that a person not a party to the custody proceeding has physical custody of the child or claims to have custody or visitation rights with respect to the child, it shall order that person to be joined as a party and to be duly notified of the pendency of the proceeding and of his joinder as a party. If the person joined as a party is outside this state he shall be served with process or otherwise notified in accordance with section 43-1205.
That statute may, although we do not decide the issue, have provided the paternal grandparents with a basis for complaint had they been deprived of physical possession of the younger child, but it provides no basis upon which Dennis may complain. It was Dennis who, knowing of her daughter's living arrangement, instituted the action; under the circumstances she was not prejudiced by the failure to implead the grandparents if they were required as parties.
Dennis next contends that the trial court erred in failing to modify the 1980 custody order, because there was no showing she was unfit. In support of this proposition she cites us to Nielsen v. Nielsen, 207 Neb. 141, 149, 296 N.W.2d 483, 488 (1980), wherein it is stated: "The courts may not properly deprive a parent of the custody of a minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship, or has forfeited that right." That case balanced the right of a parent to have custody as against the right of the grandparents. Here, no such dispute is involved; as pointed out previously, the grandparents do not seek custody. The rule to be applied *877 is found in Haake v. Haake, 215 Neb. 889, 896, 341 N.W.2d 911, 915 (1983): "`[O]rders fixing custody of minor children will not be modified unless there has been a change of circumstances indicating that the person who has custody is unfit for that purpose or that the best interests of the child require such action.'" Accordingly, it was Dennis' burden to prove Smith unfit to be the custodial parent or that the best interests of the child required a change. Although one who prefers to live with his paramour rather than with his children cannot be considered a model parent, and such is a factor to be considered in determining fitness, under the circumstances of this case Dennis failed in her burden to prove Smith unfit.
The significant changes in circumstances are that Dennis is now married and no longer involved with a man who sexually abuses one of the children. The former paramour has been replaced by an untrained and unemployed husband. However, the circumstances in which the younger child was placed immediately after her removal from her mother's custody have not changed. She has lived, without complaint and in good style, with her paternal grandparents ever since 1980. The change in the mother's circumstances is not such as to warrant upsetting the custody and living arrangements of the daughter.
Lastly, Dennis argues that the younger daughter's express wish to live with her natural mother must be respected. Neb.Rev.Stat. § 42-364(1)(b) (Cum.Supp. 1982) provides that the desires and wishes of a child if of an age of comprehension regardless of chronological age, when the desires are based on sound reasoning, are to be considered in determining the best interests of a child. There are, however, no facts which justify the 15-year-old's express desire to live with her mother. The reasons she states for wanting a change in custody are that she believes a child should live with her regular parent and that she could be helped and also help her mother. We do not find that reasoning sound or persuasive when the present living arrangements provide excellent care and nurturing. Although § 42-364(1)(b) requires that when of an age of comprehension a child's desires are to be considered, neither this nor any other court may abdicate its responsibility to decide custody on the basis of what it deems to be in a child's best interests based upon the totality of the circumstances. See Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980). A child's statement of preference may be considered, but it is not controlling. State ex rel. Speal v. Eggers, 181 Neb. 558, 149 N.W.2d 522 (1967).
We conclude from our de novo review that custody of the younger daughter should remain in Smith and physical possession remain with her paternal grandparents.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617296/ | 749 F. Supp. 427 (1990)
TENNESSEE GAS PIPELINE CO.
v.
104 ACRES OF LAND MORE OR LESS, IN PROVIDENCE COUNTY OF the STATE OF RHODE ISLAND, Perry L. Olson et als., and Unknown Owners.
Civ. A. No. 89-700B et seq.
United States District Court, D. Rhode Island.
October 29, 1990.
*428 *429 Fran R. Robins-Liben, Tillinghast, Collins & Graham, Providence, R.I., for plaintiff.
Michael Rubin, Asst. Atty. Gen., S. Michael Levin, Robert D. Fine, Richard C. Tallo, Barry J. Kusinitz, Anthony F. Muri, Laurel K. Bristow, Jay M. Elias, Domenic Tudino, Richard A. Licht, Joseph LoBianco, David Schechter, Joel D. Landry, Robert E. Davignon, Carl B. Lisa, George E. Lieberman, James M. Sloan, III, Carol E. Najarian, Richard Kelaghan, Thomas C. Plunkett, James A. Currier, Robert J. Cosentino, Thomas L. McDonald, Stephen J. Reid, Jr., Robert S. Bruzzi, Harris K. Weiner, Adler, Pollock & Sheehan, Harold I. Kessler, Friedman & Kessler, Shelia High King and Michael A. Kelly, Providence, R.I., John McBurney, Pawtucket, R.I., Vincent Piccirilli, Paul A. Sassi, Robert D. Murray, William F. Holt and Jeffrey A. Lanphear, Cranston, R.I., James V. Paolino, Robert V. Colagiovanni, David M. Campanella, Sandra A. Blanding and Dennis R. Gannon, Warwick, R.I., Thomas E. Hefner, Greenville, R.I., Paul P. Baillargeon and Robert D. Natal, No. Smithfield, R.I., Scott K. Keefer and Joseph Dugan, Woonsocket, R.I., John A. Murphy, Jamestown, R.I., Nolan & Dailey, Coventry, R.I., Everett A. Petronio, Johnston, R.I. and George Prescott, Lincoln, R.I., for defendants.
OPINION
FRANCIS J. BOYLE, Chief Judge.
On May 18, 1989, the Federal Energy Regulatory Commission (FERC or Commission) granted Tennessee Gas Pipeline Company (Tennessee Gas) a Certificate of Public Convenience and Necessity authorizing construction of a 36 mile high-pressure natural gas pipeline extension from Worcester County in Massachusetts to a southern terminus in Cranston, Rhode Island. The certificate was issued following a hearing before the Commission for which notice was given in accord with statute and FERC regulations.[1] After the certificate was issued, a rehearing was thereafter granted to some affected property owners and the certificate was amended on September 9, 1990 to alter the southern end of the route to "reduce potential land use impact." Tennessee Gas Pipeline Co., F.E.R.C. No. CP87-75-002. The Commission has yet to consider additional requests for rehearing filed by Consolidated Edison Company of New York, Inc., Tennessee Gas Pipeline Company, and Peoples Gas Light and Coke Company.
As amended, the certificate authorizes the construction of a 20-inch high-pressure natural gas pipeline from Tennessee Gas' existing line in Massachusetts to Sherman Road, just over the Massachusetts/Rhode Island state line in Burrillville, Rhode Island. From Sherman Road, the certificate permits construction of a 16-inch pipeline to Cranston, Rhode Island. Over the entire route, the certificate authorizes acquisition of temporary easements 75 feet in width for use during construction and the retention of permanent rights of way and easements that are no more than 50 feet wide. The certificate also allows acquisition of a parcel of land at the southern end of the line for a metering facility. The certificate is conditioned on Tennessee Gas' adherence to specific environmental mitigation measures before and during construction, including the obligation to obtain a permit before construction from the FERC's Office of Pipeline and Producer Regulation after review of cultural resource surveys and mitigation plans.
Tennessee Gas now asks this Court, pursuant to Section 7(h) of the Natural Gas Act, 15 U.S.C. § 717f(h), to condemn rights of way, easements and land for the construction and maintenance of the pipeline. Tennessee Gas asserts, and Defendants do not contest, that Tennessee Gas was unable *430 after good faith negotiations to purchase the property that is the subject of this complaint. In its complaint, Tennessee Gas seeks perpetual or permanent easements and rights of way to transport "oil, gas, petroleum products or any other liquids, gases or substances which can be transported through a pipeline." In addition to the right to construct, maintain, and operate a pipeline, Tennessee Gas seeks the right to "alter ... renew, remove, change the size of and replace a pipeline."
The Defendants are various landowners whose land is the subject of this condemnation proceeding. In their challenge to Tennessee Gas' claim of eminent domain, Defendants make two basic arguments: first, that Tennessee Gas' FERC certificate is invalid and, second, that the extent of the condemnation exceeds the scope or otherwise violates the terms of the certificate.
Validity of the FERC Certificate
Defendants argue: (1) that FERC lacked authority to enter an order issuing a certificate to Tennessee Gas because the affected property owners were not afforded personal notice and an opportunity to intervene in the administrative hearings; and (2) that the FERC certificate is not "final" because the Commission has before it applications for rehearing on matters relating to the certificate. For the reasons stated below, this Court lacks jurisdiction to determine these issues.
United States District Courts have a limited scope of review in condemnation proceedings brought under Section 7(h) of the Natural Gas Act. Disputes over the reasons and procedures for issuing certificates of public convenience and necessity must be brought to the Federal Energy Regulatory Commission for rehearing. 15 U.S.C. § 717r(a). Appeals may thereafter be brought to a United States Court of Appeals. 15 U.S.C. § 717r(b). The District Court's role is to evaluate the scope of the certificate and to order condemnation of property as authorized in the certificate. See Williams Natural Gas Co. v. Oklahoma City, 890 F.2d 255, 262 (10th Cir. 1989) ("Judicial review ... is exclusive in the courts of appeals once the FERC certificate issues."), cert. denied, ___ U.S. ___, 110 S. Ct. 3236, 111 L. Ed. 2d 747 (1990); Transcontinental Gas Pipe Line Corp. v. 118 Acres of Land, 745 F. Supp. 366 (E.D. La.1990) ("review of FERC orders are to be made only to United States Circuit Courts of Appeal"). District Courts, therefore, are limited to jurisdiction to order condemnation of property in accord with a facially valid certificate. Questions of the propriety or validity of the certificate must first be brought to the Commission upon an application for rehearing and the Commission's action thereafter may be reviewed by a United States Court of Appeals.
Defendants' argument that the Commission improperly denied landowners notice and a hearing on the issue of the necessity of the condemnation is a collateral attack on the validity of the certificate. The issue is, therefore, not a matter which this Court may decide. Tennessee Gas Transmission Co. v. Violet Trapping Co., 200 So. 2d 428, 431 (La.Ct.App.1967) (refusing to rule on validity of certificate issued without notice).
Even if this Court could consider this issue, it is beyond doubt that Defendants' argument lacks merit. To hold that the FERC certificate is invalid because landowners were not afforded personal notice of the hearings would require the Court to overlook a long line of decisions holding that landowners have no due process right to notice and a hearing in agency proceedings to determine the need for condemnation. See Bragg v. Weaver, 251 U.S. 57, 58, 40 S. Ct. 62, 63, 64 L. Ed. 135 (1919); Joiner v. City of Dallas, 419 U.S. 1042, 95 S. Ct. 614, 42 L. Ed. 2d 637 (1974), reh'g denied, 419 U.S. 1132, 95 S. Ct. 818, 42 L. Ed. 2d 831 (1975), aff'g, 380 F. Supp. 754 (N.D.Tex.1974); Bailey v. Anderson, 326 U.S. 203, 205, 66 S. Ct. 66, 67, 90 L. Ed. 3, reh'g denied, 326 U.S. 691, 66 S. Ct. 228, 90 L. Ed. 407 (1945); Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 677, 43 S. Ct. 684, 688, 67 L. Ed. 1167 (1923); United States v. 125.2 Acres of Land, 732 F.2d 239, 243 (1st Cir.1984) ("The [Supreme] Court has long held that takings in advance of compensation *431 do not violate due process."). Thus, even if this Court had jurisdiction to decide the matter, which it does not, Defendants' argument would fail in light of long established law and Tennessee Gas' otherwise compliance with statutory notice requirements.
Defendants' contentions concerning the finality of the certificate are similarly without effect. Applications for rehearing by three public utility companies are presently before the Commission. However, The Natural Gas Act directs that an application for a rehearing shall not operate as a stay of the Commission's order unless specifically ordered by the Commission or by a reviewing Court of Appeals. 15 U.S.C. § 717r(c); see Ecee, Inc. v. Federal Power Comm'n, 526 F.2d 1270, 1274 (5th Cir.) (order is final "unless and until it is stayed, modified, or reversed"), cert. denied, 429 U.S. 867, 97 S. Ct. 176, 50 L. Ed. 2d 147 (1976); Jupiter Corp. v. Federal Power Comm'n, 424 F.2d 783, 791 (D.C.Cir. 1969) (commission's orders effective during disposition of review proceedings), cert. denied, 397 U.S. 937, 90 S. Ct. 944, 25 L. Ed. 2d 118 (1970). Rather than seeking relief from this Court, Defendants' remedy is to ask for a stay from the Commission or from the Court of Appeals. Because in this case the Commission's order has not been stayed, condemnation pursuant to that order may proceed.
Scope and Construction of the FERC Certificate
In their second basic argument, that the condemnation sought exceeds the scope or violates the terms of the FERC certificate, Defendants make five points. The defendants argue that Tennessee Gas' petition is overbroad or otherwise violates the terms of the certificate because: (1) the easements sought are perpetual, (2) the easements sought allow the size of the pipeline to be changed at a future date, (3) the easements sought specifically allow the transport of substances other than natural gas, (4) condemnation pursuant to the certificate is premature because the Commission's order and state and federal law require permits which have not yet been obtained, and (5) as to some of the affected landowners, the original FERC certificate did not authorize acquisition of their property due to the Commission's failure to specify their property in its May 18, 1989 order.
Regarding the perpetual or permanent quality of the easements sought, the defendants argue that easements must be limited to the life of the project. Defendants, however, offer absolutely no supporting law. Furthermore, the text of the statute belies this contention. The statute contemplates two types of condemnation: the condemnation of rights of way to construct, operate, and maintain pipelines and the condemnation of land necessary to locate surface equipment for the operation of pipelines. 15 U.S.C. § 717f(h). Because the statute contains no language to the contrary, it must be concluded that the rights of way may be easements in perpetuity. Furthermore, in its order issuing the certificate in this case, the Federal Energy Regulatory Commission authorizes the condemnation of "permanent" rights of way with restrictions as set forth in its order. Plaintiff's Exhibit C, ¶ J, at 17. This Court may not alter this authorization.
Defendants next object to the fact that Tennessee Gas seeks an easement giving it the right to "alter ... renew, remove, change the size of and replace a pipeline." Unquestionably, Tennessee Gas' easement includes the right to maintain and repair a pipeline. Accordingly, Tennessee Gas has the right to replace or repair the line as necessary to maintain it. At issue, however, is whether the easement can properly include replacement to increase the size of the line to accommodate future needs. Because Tennessee Gas has no authorization in the certificate from the Commission, it may not now do so.
Tennessee Gas acknowledges that the right of way and easement that it seeks exceeds the scope of the certificate (Plaintiff's Memo at 35). The scope of a certificate of public convenience and necessity is to be construed narrowly against the party *432 exercising the power. Columbia Gas v. An Exclusive Gas Storage Easement, 578 F. Supp. 930, 935 (N.D.Ohio 1983), aff'd, 776 F.2d 125 (6th Cir.1985); United States v. 67.59 Acres of Land, 415 F. Supp. 544, 547 (M.D.Pa.1976); cf. Delaware, Lackawanna & W. R.R. v. Morristown, 276 U.S. 182, 192, 48 S. Ct. 276, 278, 72 L. Ed. 523 (1928) ("the taking of private property for public use is deemed to be against the common right and authority so to do must be clearly expressed"). This is so because exercise of the power of eminent domain is in derogation of property rights and may be subject to abuse. Tennessee Gas seeks a confirmation now of the right to hereafter dig up and remove an existing pipeline and to replace it with a larger line at some unspecified time in the future, with the likelihood of causing additional damage to neighboring landowners whose property is subject to the easement. Tennessee Gas does not now have a certificate to do this. Nothing justifies such an anticipatory taking of property rights.
Tennessee Gas cites only one case to support its argument for an easement that includes the right to hereafter expand the size of the pipeline. In Panhandle Eastern Pipe Line Co. v. S.E.C., 170 F.2d 453, 458 (8th Cir.1948), the Court of Appeals for the Eighth Circuit held that modifications in the manner of construction, including changes in the size of a pipeline, did not invalidate a certificate of convenience and necessity issued by the Federal Power Commission. The Panhandle Court, however, was concerned with the validity of the certificate itself and did not address the future scope of a condemnation pursuant to a valid certificate. Furthermore, in Panhandle, the modifications in the size of the pipeline were made before initial construction and did not implicate future burdens on future landowners. This case is inapposite.
Defendant's third objection is to the assertion that Tennessee Gas has an easement to transport "oil, gas, petroleum products or any other liquids, gases or substances which can be transported through a pipeline." As defendants cogently note, the district court's jurisdiction is limited to condemnation of property for purposes authorized by the certificate. But the certificate only authorizes construction of a natural gas pipeline. Indeed, given the purposes of the Natural Gas Act, the Commission's authority to authorize construction of a pipeline for other purposes is non-existent. Accordingly, the easement is restricted to a right of way for a natural gas pipeline and not a pipeline for any other purpose.
Defendant's next argument is that condemnation is premature because Tennessee Gas has not obtained permits required by the FERC order and by federal and state law. According to the terms of the certificate, the FERC's Director of the Office of Pipeline and Producer Regulation must approve the pipeline project after reviewing cultural resource surveys and mitigation plans and after consultation with Massachusetts and Rhode Island State Historic Preservation Officers. As Defendants note, this provision in the certificate reflects Federal policy as enacted in the National Historic Preservation Act. 16 U.S.C. § 470 et seq. Defendants also argue that Tennessee Gas has not obtained wetland permits required under the Clean Water Act and state enviornmental law. See 33 U.S.C. § 1344; R.I.Gen.Laws § 2-1-21. Defendants assert that because route changes may be necessary to acquire these permits, condemnation should be deferred until the permits are obtained.
As noted above, this Court does not have jurisdiction to review the Commission's decision to issue the certificate to Tennessee Gas and thereby to authorize condemnation of property to construct the pipeline. Disputes over the validity of the certificate based on FERC's failure to require compliance with the Clean Water Act or state law must be brought to the Commission for rehearing. The inquiry, therefore, is whether the Commission's order requires that condemnation must be deferred pending the grant of the permits.
The FERC order provides that prior to construction and operation of the pipeline Tennessee Gas must obtain written approval *433 from the Office of Pipeline and Producer Regulation after review of state cultural resource surveys and mitigation plans. This portion of the order cannot be construed to prevent condemnation of property based on the possibility that approval will not be granted. The requirements in the FERC order arise after ownership of the rights of way are obtained and do not operate as a "shield" against the exercise of eminent domain power. Cf. U.S. v. 162.20 Acres of Land, More or Less, 639 F.2d 299, 305 (5th Cir.), reh'g denied, 644 F.2d 34, cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103 (1981) (statutorily mandated compliance with National Historic Preservation Act does not limit eminent domain power); United States ex rel. Tennessee Valley Auth. v. Three Tracts of Land, 415 F. Supp. 586, 588 (E.D.Tenn. 1976) (same). Thus, while failure to comply with the terms of the order may delay or prevent construction of the pipeline, absent a stay of the FERC order by the Commission the lack of a required permit does not prevent condemnation of land in preparation for construction.
As a last argument, Defendants Lawrence and Moreau object that the scope of the original FERC order did not authorize condemnation of their property. This argument, however, is rendered moot by the Commission's September 19, 1990 modification of the certificated route. The route, as modified, bypasses the Lawrence property and bisects a different portion of the Moreau property than that described in the original complaint. Tennessee Gas has filed a second amended complaint which does not include the Lawrences as defendants and which revises the legal descriptions of properties affected by the change in the route. Condemnation is warranted along the route as modified by the September 19, 1990 order.
Accordingly, the condemnation of perpetual easements and land for the construction and maintenance of a natural gas pipeline as described in the FERC certificate issued on May 18, 1989, and as modified by the Commission's September 19, 1990 order is granted. Plaintiff shall prepare and present a form of order in accord with this opinion.
NOTES
[1] See 15 U.S.C. § 717f(d) ("notice ... shall be served upon such interested parties and in such manner as the Commission shall, by regulation, require."); 18 C.F.R. § 157.9 (1990) ("Notice of each application filed ... will be published in the Federal Register and copies of such notice mailed to states affected thereby."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617300/ | 623 So. 2d 413 (1993)
Danny Lee STEWART
v.
STATE.
CR 91-1895.
Court of Criminal Appeals of Alabama.
April 16, 1993.
Rehearing Denied May 28, 1993.
*414 C. Lawson Little, Dothan, for appellant.
James H. Evans, Atty. Gen., and Gregory Griffin, Sr., Asst. Atty. Gen., for appellee.
BOWEN, Presiding Judge.
The appellant, Danny Lee Stewart, was convicted of murder and was sentenced to thirty years' imprisonment. He raises two issues on this appeal from that conviction.
I
First he contends that he was entitled to a change of venue because his jury did not represent a fair cross section of the community in which the offense occurred.
The appellant makes the following claims with respect to the foregoing argument: There were six black persons on the jury venire. Three of those were excused for cause. With only three black persons remaining on the jury venire, it was impossible for him to obtain a "racially balanced" jury. Therefore, he argues that he was entitled to a change of venue to another county where few, if any, black persons would have knowledge of the case, and where, presumably, the venire would include more black persons available for jury service.
There are several flaws in this argument. First of all, the appellant has attempted to link two unrelated rightsthe due process right to a fair trial by an unbiased jury and *415 the Sixth Amendment right to a "representative" jury. Even if the two rights were somehow connected, the appellant has failed to show that he suffered any infringement of either right. Neither the change of venue rule nor the fair cross-section requirement exists to ensure that a particular jury will be "racially balanced."
An accused is entitled to a change of venue only "if he can demonstrate that he cannot receive a fair trial in the county where he is to be tried." Ex parte Fowler, 574 So. 2d 745, 747 (Ala.1990). See Rule 10.1(b), A.R.Crim.P. (a criminal defendant may move for a change of venue if "a fair and impartial trial and an unbiased verdict cannot be had for any reason"). The accused has the burden of showing that he cannot receive a fair trial in the county in which he is indicted. Rule 10.1(b), A.R.Crim.P. See also Ala.Code 1975, § 15-2-20 (accused must "set[ ] forth specifically the reasons why he cannot have a fair and impartial trial in the county in which the indictment is found"). In moving for a change of venue, the accused may not rely on assumptions of bias but must prove "actual prejudice against the defendant." See Ex parte Grayson, 479 So. 2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S. Ct. 189, 88 L. Ed. 2d 157 (1985). The appellant made no showing of actual prejudice, and he therefore failed to demonstrate the necessity of a change of venue.
Finally, even assuming that the appellant had grounds for a change of venue, his motion was untimely. A motion for change of venue must be made "at the earliest opportunity prior to trial." Rule 10.1(c), A.R.Crim.P. The appellant waited until the trial begun and the jury selection process was underway to make his motion.
In order to establish a Sixth Amendment fair cross-section requirement violation, the accused has the burden of proving a systematic exclusion of blacks resulting in their under-representation on the jury rolls. See Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979); Robinson v. State, 560 So. 2d 1130, 1132 (Ala.Cr. App.1989). In this case, the prosecutor stated that the jury list was derived from drivers' license records. The practice of using drivers' licenses as the sole source for compiling a master jury list has been upheld against claims that it violates the fair cross section requirement. Joyce v. State, 605 So. 2d 1243 (Ala.Cr.App.1992); Rayburn v. State, 495 So. 2d 733 (Ala.Cr.App.1986); Vaughn v. State, 485 So. 2d 388 (Ala.Cr.App. 1986). The appellant presented no evidence to support the conclusion that the method of summoning jurors in Houston County resulted in the exclusion of any distinctive group in the community; he therefore failed to demonstrate a violation of the Sixth Amendment fair cross-section requirement. See Brundage v. State, 585 So. 2d 238, 239 (Ala.Cr.App. 1991); Childs v. State, 574 So. 2d 1023, 1024 (Ala.Cr.App.1990); White v. State, 587 So. 2d 1218, 1221 (Ala.Cr.App.1990), affirmed, 587 So. 2d 1236 (Ala.1991), cert. denied, ___ U.S. ___, 112 S. Ct. 979, 117 L. Ed. 2d 142 (1992); De Fries v. State, 597 So. 2d 742, 750 (Ala.Cr. App.1992).
In the absence of a showing of systematic exclusion, the showing of a disparity between the percentage of blacks in the population of the county in which venue is situated and the percentage of blacks on the venire does not establish a violation of the fair cross-section requirement. See Johnson v. State, 620 So. 2d 679 (Ala.Cr.App.1992), reversed on other grounds, 620 So. 2d 709 (Ala. 1993); Pierce v. State, 576 So. 2d 236, 241 ((Ala.Cr.App.1990), cert. denied, 576 So. 2d 258 (Ala.1991).
Even if the appellant had established a violation of the fair cross-section requirement, which he did not, his remedy would have been the drawing of another jury, see Ala.Code 1975, §§ 12-16-55 through 12-16-64, and not a change of venue.
II
The appellant maintains that his motion for judgment of acquittal should have been granted because the verdict was contrary to the evidence of self defense.
The evidence was undisputed that the appellant shot the victim during an argument in the kitchen of a residence shared by State's witnesses Lisa Jernigan and Alvin Hudspeth. *416 Neither Jernigan nor Hudspeth witnessed the actual shooting, but both heard angry words spoken by the appellant to the victim and Hudspeth saw the appellant with a gun. Hudspeth did not see the victim with a knife or any other weapon. He heard the victim say to the appellant, "[M]an, please don't shoot me," R. 73, and then he heard a gunshot. The appellant claimed that he shot the victim after the victim first came at him with a knife.
"`Where, as here, the killing was admitted, the question of whether or not it was justified under the theory of self defense was for the jury.' Townsend v. State, 402 So. 2d 1097, 1098 (Ala.Cr.App.1981). The issue of self-defense invariably presents a question for the jury, whose verdict will not be disturbed on appeal. `[E]ven if the evidence of self-defense is undisputed, the credibility of the defendant with respect to the evidence of self-defense is for the jury, and they may, in their discretion, accept it as true or reject it.' Mack v. State, 348 So. 2d 524, 529 (Ala.Cr.App.1977).
"This court's observation in Hilliard v. State, [610] So.2d [1204] (Ala.Cr.App.1992), a recent case with similar facts, is applicable here:
"`The only evidence at trial concerning the appellant's theory of self-defense was the appellant's testimony in which he stated that he stabbed the victim only after the victim pulled a knife on him. The jury does not have to accept the accused's version of what happened.
"`"Whether the killing of another was justified as an act of self-defense is a question for the jury, Turner v. State, 160 Ala. 40, 49 So. 828; and this is true even though the defendant's testimony as to how the difficulty occurred is uncontradicted." Collier v. State, 49 Ala. App. 685, 275 So. 2d 364, 367 (1973). "The weight and credence given the testimony of the accused as to the issue of self-defense is a question for the jury." Garraway v. State, 337 So. 2d 1349, 1353 (Ala.Cr.App.1976). See also Atchley v. State, 393 So. 2d 1034, 1051 (Ala.Cr.App. 1981); Warren v. State, 380 So. 2d 305, 307 (Ala.Cr.App.1979), cert. quashed, 380 So. 2d 307 (Ala.1980); Graham v. State, 339 So. 2d 110, 113 (Ala.Cr.App.), writ denied, 339 So. 2d 114 (Ala.1976).
"`The trial court in its oral instructions to the jury set forth the law of self-defense. The jury resolved the issue against the appellant by finding him guilty.... That verdict is supported by evidence presented at trial. The trial court committed no error in failing to grant the appellant's motion for judgment of acquittal.' Hilliard v. State, [610] So.2d at [1205]."
Quinlivan v. State, [Ms. CR-91-620, November 13, 1992], 1992 WL 330722, *5 (Ala.Cr. App.1992).
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617302/ | 132 Mich. App. 244 (1984)
347 N.W.2d 739
PEOPLE
v.
BISOGNI
Docket No. 71750.
Michigan Court of Appeals.
Decided February 8, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, James C. Cotant, Prosecuting Attorney, and Jann Ryan Baugh, Assistant Attorney General, for the people.
State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.
Before: MacKENZIE, P.J., and J.H. GILLIS and T.C. MEGARGLE,[*] JJ.
PER CURIAM.
Defendant pled guilty to conspiracy to commit larceny under $100. MCL 750.157a, 750.356; MSA 28.354(1), 28.588. Defendant was sentenced to two years probation, with the first year to be served in jail as a condition of probation. Defendant appeals as of right.
Defendant first claims that he was deprived of effective assistance of counsel because his attorney failed to argue at the sentencing hearing that defendant's alleged co-conspirator, who had pled guilty to receiving and concealing stolen property under $100, was sentenced to only six months probation with no jail time, and that the court should consider this factor in mitigation of defendant's sentence. This claim is without merit. Sentences are to be individualized and tailored to fit the offender. People v McFarlin, 389 Mich. 557, 574; 208 NW2d 504 (1973). There is no requirement *246 that a court consider the sentence given to a co-participant in the crime in sentencing a defendant. People v Dorsey, 104 Mich. App. 528, 529; 305 NW2d 257 (1981). We decline to find defendant's counsel ineffective for failing to argue a point which the sentencing court was not required to consider.
Defendant also argues that, because the statutory maximum sentence for the offense of which he was convicted is one year imprisonment, once he has served the one year imposed by the court he may not then be required to serve any additional probation period. We agree. There is no dispute that the maximum sentence of imprisonment which could be imposed on defendant is one year. The offense of larceny under $100 is a misdemeanor, MCL 750.356; MSA 28.588, and is punishable by imprisonment of not more than 90 days, MCL 750.504; MSA 28.772. Consequently, for the crime of conspiracy to commit larceny under $100, the maximum period of incarceration is one year under MCL 750.157a(c); MSA 28.354(1)(c).
The probation term of two years imposed by the court was within the statutory maximum provided in MCL 771.2(1); MSA 28.1132(1). Also, the court was statutorily authorized to impose the one-year sentence as a condition of probation under MCL 771.3(2)(a); MSA 28.1133(2)(a). However, once defendant has served that one-year sentence, he will have served the maximum period of imprisonment authorized by statute. Therefore, even if defendant subsequently violates the terms of his probation, he cannot be punished with any additional imprisonment because, once he is given credit for the one year that he has served, People v Sturdivant, 412 Mich. 92; 312 NW2d 622 (1981), he will have already served the maximum imprisonment authorized *247 by statute. The sentencing court's imposition of a period of probation to succeed defendant's completion of the one-year jail sentence, the statutory maximum, is meaningless since the terms of probation would not be enforceable. Once the maximum sentence has been served, any additional sentence imposed is void and must be vacated. People v Rose, 117 Mich. App. 530, 536-537; 324 NW2d 25 (1982) (one-year maximum sentence already served, so additional sentence of three years probation vacated); see also People v Dorsey, 107 Mich. App. 789, 792; 310 NW2d 244 (1981). Therefore, we vacate defendant's sentence to the extent it would impose a period of probation after defendant has completed serving the one year of imprisonment.
Affirmed, with defendant's sentence being partially vacated.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617305/ | 190 S.W.3d 97 (2005)
Jack DOUGLAS, Appellant,
v.
PETROLEUM WHOLESALE, INC., Appellee.
No. 01-04-00260-CV.
Court of Appeals of Texas, Houston (1st Dist.).
December 8, 2005.
*98 Herbert W. Fortson, III, Fortson, Frazer & Siegrist, P.C., Houston, TX, for appellant.
Stuart W. Lapp, and Daniel Prescott McManus, Herzog, Carp & McManus, Houston, TX, for appellee.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
OPINION
SAM NUCHIA, Justice.
Appellant, Jack Douglas, sued appellee, Petroleum Wholesale, Inc. ("PWI"), for violation of the Petroleum Marketing Practices Act ("PMPA")[1] by terminating Douglas's use of the Diamond Shamrock trademark, signage, branded motor fuel, and credit card facilities. Following a bench trial on the merits, the trial court entered a take-nothing judgment in favor of PWI, concluding that the relationship between Douglas and PWI was not a franchise within the meaning of the PMPA. We affirm.
BACKGROUND
PWI was an authorized wholesale distributor of several brands of motor fuel, including Diamond Shamrock. In October 1997, Douglas purchased a gas station and convenience store business that had operated as a Diamond Shamrock station under a Fuel Marketing Location Agreement ("FMLA") between PWI and the owner of the premises. Douglas leased the real property and fuel equipment, including gas storage tanks and dispensing lines, from the premises owner.
The FMLA provided for mandatory assignment of the FMLA in the event that the business was sold. The assignment provision also required written consent of assignment by PWI, but PWI never signed an acknowledgment of assignment to Douglas. However, with knowledge of the transfer in ownership of the business, PWI continued to do business with Douglas under the terms of the FMLA, as it had with the previous owner. Although Douglas testified that he never saw the FMLA, he knew of its existence and that he was required to assume the agreement when he purchased the business. The parties did not enter into any other written agreement. In August 1998, Douglas purchased the real property and fuel equipment.
The FMLA provided, "Title to all such fuel inventories shall remain in PWI until purchased by and delivered to a customer." It further provided, under the heading "LEGAL CONSTRUCTION," "This contract shall be construed as a contract of consignment for sale and not a contract of agency."
From October 1997 until March 2000, PWI supplied Douglas with Diamond Shamrock branded motor fuel. During this time, Douglas used the existing Diamond Shamrock credit card facilities and the Diamond Shamrock trademark, signage, uniforms, and decals. PWI delivered motor fuel into Douglas's tanks on an as-needed basis, sometimes at Douglas's request and sometimes on PWI's own initiative. Douglas did not pay for the fuel upon delivery. PWI invoiced Douglas weekly for the wholesale price for the fuel *99 that had been dispensed during the previous week. The wholesale price charged by PWI included a two-cents-per-gallon transportation markup. PWI neither set the retail price of the gasoline nor had any stake in the profit margin at the retail level. Douglas's profit from the sale of the gasoline consisted of the difference between the wholesale price paid to PWI and the retail price charged to the consumer.
Credit card payments went directly to Diamond Shamrock, who notified PWI of the amount. The invoice from PWI credited Douglas for the amount of the credit card payments. Douglas received all cash and check payments for gasoline and deposited them in his bank account. PWI drafted Douglas's bank account for the balance due as shown on the invoice.
Both Douglas and PWI testified that they paid personal property taxes on the gasoline inventory at the property, and both produced personal property tax statements to support their claims. However, Douglas testified that the Wharton County taxing authority simply sent him a bill, which showed the same valuation for improvements in 1997, 1998, and 1999. He stated that he never told the authority the value of the gasoline in his storage tanks. On the other hand, PWI testified that the fuel was the only personal property it owned at that location and that its tax statement showed that it paid personal property taxes on that fuel.
In March 2000, a PWI sales manager informed Douglas that his store was being "de-branded" by Diamond Shamrock and that he could no longer sell Diamond Shamrock fuel. Douglas received no written notice of the de-branding. Diamond Shamrock arranged within the month to pick up the signs at Douglas's station.
Douglas sued PWI, alleging that PWI had wrongfully terminated its franchise relationship with him in violation of the PMPA.
DISCUSSION
Findings of Fact
The trial court recited its findings of fact and conclusions of law in the final judgment. Findings of fact recited in a judgment do not satisfy the requirement of rule 299a, which states, "Findings of fact shall not be recited in a judgment" and requires that they be separately filed. TEX.R. CIV. P. 299a. In the absence of separately filed findings of fact, "it is implied that the trial court made all the necessary findings to support its judgment." Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989).
We deem the following findings of fact as necessary to support the trial court's judgment:
1. PWI supplied fuel to Douglas on consignment;
2. PWI paid personal property taxes on the fuel in Douglas's underground pumps;
3. The fuel belonged to PWI while it was in Douglas's underground pumps; and
4. Douglas did not purchase fuel from PWI.
Standard of Review
On appeal, in his only point of error, Douglas contends, "The Trial Court was incorrect as a matter of law in finding that Douglas' relationship with PWI was not a franchise within the meaning of the PMPA because Douglas met all the necessary indicia of economic risk and entrepreneurial responsibility to be a retailer as defined by the PMPA."
Statutory construction is a question of law for the court to decide. Havlen v. *100 McDougall, 22 S.W.3d 343, 345 (Tex.2000). We review a trial court's legal conclusions de novo. See In re E.I. du Pont de Nemours and Co., 92 S.W.3d 517, 522 (Tex. 2002). Whether a gas station operator is a "retailer" under the PMPA is a question of law. Farm Stores, Inc. v. Texaco, Inc., 763 F.2d 1335, 1342 (11th Cir.1985).
In interpreting a statute, we must first look to the language of the statute itself. Lewis v. United States, 445 U.S. 55, 60, 100 S. Ct. 915, 918, 63 L. Ed. 2d 198 (1980); Texas Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). We must regard that language as conclusive unless the legislature has clearly expressed its intention to the contrary. Consumer Prods. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056, 64 L. Ed. 2d 766 (1980); see also Checkrite Petroleum, Inc. v. Amoco Oil Co., 678 F.2d 5, 7 (2nd Cir.1982) (applying standard of review to interpretation of PMPA).
The Petroleum Marketing Practices Act
Congress enacted the PMPA in 1978 in response to concerns that franchisees selling motor fuels needed greater protection from arbitrary termination of their franchises. Brach v. Amoco Oil Co., 677 F.2d 1213, 1216 (7th Cir.1982). Congress designed the PMPA to address specific concerns regarding both the disparity in bargaining power between motor fuel retailers and distributors/refiners as well as the concern that franchise terminations and non-renewals were disrupting the reasonable expectations of the parties that the franchise would be a continuing one. Id. Because the PMPA is a remedial statute, the courts are called to construe its provisions liberally in conformity with its overriding purpose to protect franchisees in the motor fuels marketing industry. Id. at 1221. However, its shield is only available if the hypothetical franchisee can fit into the PMPA's statutory definitions of "distributor" or "retailer" of motor fuels under a brand name. Farm Stores, Inc., 763 F.2d at 1339-40. For the purposes of this case, only the statutory definitions of "franchisee," "distributor," and "retailer" are pertinent. The PMPA provides the following definitions for these terms:
(4) The term "franchisee" means a retailer or distributor (as the case may be) who is authorized or permitted, under a franchise, to use a trademark in connection with the sale, consignment, or distribution of motor fuel.
. . . .
(6) The term "distributor" means any person, including any affiliate of such person, who
(A) purchases motor fuel for sale, consignment, or distribution to another, or
(B) received motor fuel on consignment for consignment or distribution to his own motor fuel accounts or to accounts of his supplier, but shall not include a person who is an employee of, or merely serves as a common carrier providing transportation service for, such supplier.
(7) The term "retailer" means any person who purchases motor fuel for sale to the general public for ultimate consumption. (Emphasis added.)
15 U.S.C. § 2801(4), (6), (7).
Under the PMPA, consignments are protected only for distributors who take motor fuels on consignment from refiners; retailers, by definition, must purchase motor fuel in order to gain PMPA protection. Thus, in order to recover as a PMPA franchisee, Douglas must show that he is a "retailer" who purchased motor fuel for sale to the general public.
Douglas contends that he is a retailer under the PMPA because he meets the *101 test of having "significant indicia of entrepreneurial responsibility or economic risk in the operation of the motor fuel sales at his store." Douglas cites Johnson v. Mobil Oil Corp., 553 F. Supp. 195 (S.D.N.Y. 1982); Farm Stores, Inc., 763 F.2d at 1335; Miller v. W.H. Bristow, Inc., 739 F. Supp. 1044 (D.S.C.1990); Sigmon v. Widenhouse Service, Inc., 638 F. Supp. 808 (M.D.N.C.1986); and Automatic Comfort, Corp. v. D & R Service, Inc., 620 F. Supp. 1349 (D.Conn.1985) as examples of courts' application of the entrepreneurial-responsibility test to determine the issue of whether a gas station operator is a retailer under the PMPA.
The Johnson court was the first to employ a "broader analysis that looks to the totality of the business relationship" to determine whether a gas station operator fell within the protection of the PMPA. 553 F.Supp. at 198. After recognizing that "the `starting point' must be the language of the statute itself," citing Checkrite Petroleum, 678 F.2d at 7, and concluding that the plaintiff did not purchase the gasoline for resale and did not qualify as a franchisee, the court went on to analyze the facts to determine whether there were sufficient indicia of entrepreneurial responsibility and risk for the plaintiff to be an independent businessman and, thus, to qualify as a franchisee. Id. at 198-99. The court concluded that, although there were some indicia of independent status, there were not enough to find that the plaintiff was a franchisee. Id. at 201.
By engaging in its analysis of entrepreneurial responsibility and risk, the Johnson court was not in step with the Checkrite Petroleum court. Not only did the court in Checkrite Petroleum state that the language of the statute was the starting point and was conclusive, absent clearly expressed legislative intent otherwise; it also stated, "Strict construction is particularly appropriate where, as here, the statute in question is in derogation of common law rights." Checkrite Petroleum, 678 F.2d at 7, 8.
Other courts have often followed Johnson rather than Checkrite Petroleum. They generally look first to the statutory definitions to determine whether the party seeking protection meets the definition of "retailer" or "distributor." Upon a determination that it does not, they go on to analyze the relationship of the parties to determine whether the party seeking protection meets the entrepreneurial responsibility and risk test. Invariably, it does not. See, e.g., Farm Stores, 763 F.2d at 1342, 1345-46 (holding that Farm Stores did not purchase motor fuel, then considering level of Farm Stores' business independence);[2]Sigmon, 638 F.Supp. at 810, 811, *102 813 (stating that courts have followed two approaches in determining whether parties come under protection of PMPA, express language of statute and totality of circumstances, and concluding that plaintiff did not meet either test); Automatic Comfort, 620 F.Supp. at 1354, 1358 (finding that defendant did not qualify for protection under PMPA as purchaser and, in spite of some indicia of entrepreneurial responsibility, did not prove enough to be franchisee). In light of the clear language of the PMPA, we decline to take this dual approach.
CONCLUSION
We consider the indicia of entrepreneurial responsibility to be relevant only to the extent that it establishes that a gas station operator purchases motor fuel for resale to the public. An operator who purchases fuel necessarily undertakes the risks involved in the resale of that fuel. In the present case, the evidence established that Douglas took the motor fuel on consignment and that PWI owned the fuel until it was purchased by the consumer. Because Douglas did not purchase fuel from PWI, he does not meet the statutory definition of "retailer" and does not come under the protection of the PMPA.
We overrule Douglas's sole issue and affirm the judgment of the trial court.
NOTES
[1] 15 U.S.C. §§ 2801-06.
[2] Although the court in Farm Stores considered the issue of the plaintiff's indicia of entrepreneurial responsibility, the court stated, with reference to the district court's analysis,
We believe the district court erred because it did not adhere to the clear language of the PMPA. Rather, the district court began its interpretation of the statute by seizing upon the antitrust language of Simpson v. Union Oil Co., 377 U.S. 13, 84 S. Ct. 1051, 12 L. Ed. 2d 98 (1964), hypothesizing that the PMPA was intended to protect motor fuel marketers and dealers who have enough of the indicia of entrepreneurial responsibility and risk to be considered independent dealers and businessmen. By assuming that Farm Stores fell within the Simpson antitrust description of entrepreneurial responsibility, the district court concluded that Farm Stores could be considered a "constructive retailer" or a "constructive distributor" even though it did not meet the statutory definitions. However, we believe the PMPA was not intended to protect every "independent businessman" engaged in the marketing of motor fuel. To be protected the businessman must be a "retailer" or "distributor," and have a "contract" with a "distributor" or "refiner."
Farm Stores, Inc. v. Texaco, Inc., 763 F.2d 1335, 1343 (11th Cir.1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617326/ | 623 So. 2d 1146 (1993)
Rose Mary McDANIEL, dependent widow of Larry Joe McDaniel, deceased
v.
FRENCH OIL MILL MACHINE COMPANY, et al.
1920685.
Supreme Court of Alabama.
July 30, 1993.
*1147 R. Bradford Wash and Thomas Marshall Powell of Emond & Vines, Birmingham, for appellant.
G. Steven Henry of Clark & Scott, P.C., Birmingham, for appellees.
HORNSBY, Chief Justice.
The plaintiff, Rose Mary McDaniel, as the dependent widow of Larry Joe McDaniel, appeals from a summary judgment in favor of the defendant, French Oil Mill Machine Company ("French Oil"), in a wrongful death action alleging liability under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD). We affirm.
Mr. McDaniel worked for Bunge Corporation ("Bunge") in its soybean solvent extraction facility ("the facility") in Decatur, Alabama. He was responsible for lubricating the gears of a rotary soybean conditioner used to toast soybeans. The conditioner is a cylindrical drum, 60 feet long and 15 feet in diameter; it is rotated by two gears turned by a 75-horsepower motor. One gear, a pinion gear, is attached to the motor. It meshes with and turns a ring gear that encircles the drum's exterior. To lubricate these gears, Mr. McDaniel would spread grease on them with a spatula as they turned. On March 11, 1988, while Mr. McDaniel was lubricating the gears, he was pulled into them at the point where the ring and the pinion gears mesh, called the "nip point," and was crushed to death. There were no witnesses to the accident.
Mrs. McDaniel sued French Oil, and several others, under the AEMLD, alleging that French Oil had negligently, wantonly, and defectively designed, manufactured, fabricated, distributed, and assembled the soybean conditioner that caused her husband's death. The trial court entered a summary judgment for French Oil, and Mrs. McDaniel appealed.
"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., *1148 531 So. 2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So. 2d 872 (Ala.1979)); Rule 56(c) Ala.R.Civ.P. When the movant has carried the burden of making a prima facie showing, by admissible evidence, that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the party opposing the summary judgment motion has the burden of presenting substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); Ogle v. Long, 551 So. 2d 914, 915 (Ala.1989).
Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant, resolving all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990); Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1383 (Ala.1986).
To establish liability under the AEMLD, the plaintiff must show:
"1) he suffered injury or damages to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as ultimate user or consumer, if
"(a) the seller is engaged in the business of selling such product, and
"(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
"2) Showing these elements, the plaintiff has proved a prima facie case although
"(a) the seller has exercised all possible care in the preparation and sale of his product, and
"(b) the user or consumer has not bought the product from, or entered into any contractual relation with, the seller."
Casrell v. Altec Industries, Inc., 335 So. 2d 128, 132-33 (Ala.1976); Atkins v. American Motors Corp., 335 So. 2d 134, 141 (Ala.1976).
In 1972, Gold Kist, Inc., hired French Oil to design and supervise the construction of the facility in which Mr. McDaniel was working when he died.[1] French Oil purchased the soybean conditioner for the facility from Superior Welding Company, Inc. ("Superior"). Superior designed, manufactured, fabricated, and assembled the conditioner and shipped it to the facility for installation. French Oil sold the conditioner to Gold Kist under the contract to construct the facility, and French Oil supervised the installation of the conditioner in 1974.
In its motion for a summary judgment, French Oil contended, that it was not liable for Mr. McDaniel's death, because, it said, his death was caused by defects in the conditioner that were created by substantial alterations to it after it had left French Oil's control. The trial court apparently agreed.
The mere fact that a product has been altered subsequent to its sale does not necessarily relieve the seller of liability. Johnson v. Niagara Machine & Tool Works, 555 So. 2d 88, 91 (Ala.1989). Instead, the question of a seller's liability under the AEMLD for injuries caused by a defective product altered subsequent to its purchase turns upon whether the defect causing the injury existed in the product as sold or was created by the alteration. Banner Welders, Inc. v. Knighton, 425 So. 2d 441, 451 (Ala. 1982) (citing Annotation, Products Liability: Alteration of Product After It Leaves Hands of Manufacturer or Seller as Affecting Liability for Product-Caused Harm, 41 A.L.R. 3d 1251, 1253 (1972)). When a defect created by an alteration to a product after it left the seller's control is the factual and proximate cause of an injury, and the alteration was not foreseeable, the alteration amounts to an intervening or superseding cause of the injury and relieves the seller from liability under the AEMLD. See *1149 Clarke Industries, Inc. v. Home Indemnity Co., 591 So. 2d 458, 462 (Ala.1991) (replacing the disposable dust collection bag on floor sander with a bag not manufactured by the seller was a foreseeable alteration that would not relieve the manufacturer of liability for injuries caused by spontaneous combustion of the dust collection bag attached to the sander); Burkett v. Loma Machine Manufacturing, Inc., 552 So. 2d 134, 136 (Ala.1989) (modifying the blade guard on a billet saw to expose an additional 15 inches of the blade was a substantial change that relieved the manufacturer of liability); Fenley v. Rouselle Corp., 531 So. 2d 304, 306 (Ala.1988) (removing the safety devices from a machine press constituted a superseding cause of employee's accident that relieved the press's manufacturer of liability); Williams v. Michelin Tire Co., 496 So. 2d 743, 746 (Ala.1986) (recapping a tire was a substantial alteration that relieved the tire manufacturer of liability); Bullen v. Roto Finishing Systems, 435 So. 2d 1256, 1258 (Ala.1983) (adding a catwalk and platform to an embossing/printing machine did not relieve the manufacturer of liability when there was evidence that the nip point was unsafe as originally designed); Banner Welders, Inc. v. Knighton, 425 So. 2d 441, 451 (Ala.1982) (adding grounding blocks to a shuttle welder would not relieve the welder's manufacturer of liability when the blocks merely increased the frequency of malfunctions); Beloit Corp. v. Harrell, 339 So. 2d 992, 996 (Ala.1976) (removing doctor blades from a paper-making machine would not relieve the manufacturer of the machine of liability when the blades would not have prevented the accident).
Through affidavits, depositions, and photographs, submitted to the trial court with its motion for a summary judgment, French Oil established that when the facility began operating in 1974 a steel mesh screen guarded the nip point of the conditioner's gears to prevent accidents such as the one that caused Mr. McDaniel's death. French Oil and Gold Kist were jointly responsible for providing this screen after the conditioner had been installed at the facility. The screen was manufactured at a local machine shop. Employees from the maintenance department at Gold Kist installed it, and French Oil's employees supervised the installation. The screen was designed so that it could be removed for maintenance, but it could not be removed while the conditioner was operating.
French Oil further established that, when installed, the conditioner had an automatic oil-drip system for lubricating its gears. A light weight oil ran from a cylinder through a copper tube and dripped onto the nip point of the gears. No manual lubrication was required.
After the facility had been operating for approximately one year, Gold Kist altered the conditioner's lubrication system so that it could use a heavier weight of lubricating oil on the gears and thereby reduce the speed at which the conditioner's gears were wearing out. There is no evidence that the gears were wearing out faster than they should have been. Apparently, Gold Kist sought to delay replacing the gears because they were expensive.
When Gold Kist removed the oil-drip lubrication system, it placed a sheet metal trough filled with lubricating oil beneath the pinion gear. It also placed a sheet metal trough beneath the ring gear to catch oil as it dripped off that gear and to route the oil back to the trough beneath the pinion gear. In order to situate the trough beneath the ring gear, Gold Kist permanently removed the steel mesh screen guarding the nip point of the conditioner's gears. It constructed a two-rung, metal pipe barricade, 40 to 45 inches high, around the motor, to serve as a guard. An individual performing maintenance on the conditioner would have to climb over the barricade to reach the motor. Although no safety device ensured that the conditioner would not be operating during maintenance work, the trough beneath the ring gear prevented an individual from having direct contact with the nip point of the gears and, therefore, would have prevented injuries such as the one that caused Mr. McDaniel's death. No manual lubrication was required with the oil-trough lubrication system.
Sometime after Bunge purchased the facility from Gold Kist in 1982, but before 1984, Bunge changed the lubrication system again. *1150 Bunge's reason for changing was the same as Gold Kist'sto use a heavier lubricant that would further reduce the speed at which the conditioner's gears were wearing out and, thereby, to delay the need to purchase new gears. Bunge removed the oil troughs and began using a lubricating grease that had to be applied manually. Mr. McDaniel used a spatula to apply the grease to the gears while the conditioner was operating. To reach the gears, he could attach a broom handle to his spatula and stand outside the pipe barricade, or he could climb over the barricade and stand within arm's reach of the gears.
According to French Oil's evidence, Mr. McDaniel would not have been pulled into the conditioner's gears if the original steel mesh screen had not been removed, because the nip point of the conditioner's gears would not have been exposed while the conditioner was operating. Also, Mr. McDaniel would not have been in a position to be pulled into the gears if the original automatic oil-drip lubrication system had not been removed, because Mr. McDaniel would have had no need to be lubricating the gears manually. Thus, French Oil made a prima facie showing that the defects created by the alterations to the conditioner after its installation, not any defects existing in the conditioner when it was installed, were the factual and proximate cause of Mr. McDaniel's death.[2]
In her brief, Mrs. McDaniel argues that the summary judgment was improper because, she says, there exists a genuine issue of material fact as to whether French Oil and Gold Kist fulfilled their responsibility to supply a guard for the nip point of the conditioner's gears when the conditioner was installed. In support of her argument, she presented the original affidavits of William Davis and Tommy Raney, employees of Bunge who had worked for Gold Kist in 1974 and 1975. Initially, neither Davis nor Raney recalled the existence of a screen at the nip point in 1974. However, after looking at pictures of the soybean conditioner taken in 1974, both men recalled the screen's existence and amended their affidavits accordingly.
Mrs. McDaniel also presented incomplete testimony from the deposition testimony of Ralph Hutchins, an employee of French Oil who supervised the construction of the facility. Hutchins stated that French Oil and Gold Kist would have been jointly responsible for designing and installing a guard for the nip point of the conditioner's gears, but the portions of his testimony provided do not address whether French Oil and Gold Kist actually supplied such a guard. However, Wayne Ray Pressley, an employee in Gold Kist's maintenance department in 1974, stated specifically in his affidavit that employees from Gold Kist's maintenance department, under the supervision of employees of French Oil, installed the screen at the nip point of the conditioner's gears shortly before the facility began operating.
We conclude that Mrs. McDaniel presented no substantial evidence to rebut French Oil's showing that there were no genuine issues of material fact as to the existence in 1974 of a steel mesh screen guarding the nip point of the gears. Because the presence of the steel mesh screen and the automatic lubrication system would have prevented Mr. McDaniel's accident, we must conclude that the removal of the screen and the change to a manual lubrication system were substantial changes that relieved French Oil from liability. Accordingly, the summary judgment for French Oil is due to be affirmed.
AFFIRMED.
MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur.
NOTES
[1] Gold Kist operated the facility until 1982 and then sold it to Bunge.
[2] Mrs. McDaniel does not argue, and there is no evidence, that French Oil could reasonably have foreseen that Gold Kist and Bunge would change the lubrication system, particularly to a manual lubrication system, in order to delay incurring the cost of replacing the conditioner's gears. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617342/ | 38 So. 3d 781 (2010)
TRENCO
v.
STATE.
No. 3D10-1669.
District Court of Appeal of Florida, Third District.
July 14, 2010.
Decision Without Published Opinion Belated Appeal granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617309/ | 623 So. 2d 1387 (1993)
Beverly EDWARDS, Individually and on Behalf of her Minor Child, Alexander Hale Lashley, Plaintiff-Appellant,
v.
ST. FRANCIS MEDICAL CENTER, et al., Defendants-Appellees.
No. 25105-CA.
Court of Appeal of Louisiana, Second Circuit.
September 22, 1993.
John W. deGravelles, Baton Rouge, for plaintiff-appellant.
Bruce A. Cranner, Metairie, for defendant-appellee.
*1388 Before MARVIN, LINDSAY and VICTORY, JJ.
VICTORY, Judge.
Appellants, William T. Edwards and Ruby Jeanette Edwards (collectively "Edwards"), are the grandparents and legal custodians of Alexander Lashley, a medical malpractice victim. In an earlier proceeding, the child's natural mother, Beverly Edwards, sued St. Francis Medical Center, the attending nurses, her obstetrician and their insurers. The subsequent settlement with the defendants contained a reservation of rights against the Louisiana Patient's Compensation Fund ("PCF") to determine excess damages. The Edwards appeal a trial court judgment in favor of the PCF denying the Edwards' motion to compel payment for medical, custodial and rehabilitative services which they render to Alexander. For the following reasons, we reverse the judgment of the trial court and render judgment in favor of the Edwards.
FACTS
During his birth, on May 30, 1987, Alexander Lashley suffered fetal distress resulting in severe brain damage. He has since been diagnosed with a seizure disorder, spastic quadriplegia, and cerebral palsy. He has no control over his body, cannot care for himself in any way and has no meaningful interaction with his environment. He requires constant care and supervision.
Since September 1988, Ruby Edwards and to a lesser extent, William Edwards, have cared for Alexander in their home. On a typical day, Mrs. Edwards dresses, spatula feeds and suctions the child as he is unable to swallow without assistance. The feeding technique requires that excess food particles be suctioned out in order to limit the amount of aspiration, a leading cause of the child's frequent bouts with pneumonia. Mrs. Edwards also daily administers medications, pulmonary aid treatments and percussion therapy. In addition to spending time with Alexander playing and listening to music, Mr. Edwards bathes the child and gives him physical therapy in the form of range of motion exercises. Twice a week, Mrs. Edwards takes Alexander to Ruston for physical, occupational, recreational and speech therapy.
The Edwards sought to recover for physical rehabilitation and custodial services rendered by them from the date of Alexander's birth, on May 30, 1987, through the date of trial. Mrs. Edwards requested that she be compensated at the rate of $25 per hour. Mr. Edwards requested that he be compensated at the rate of $15 per hour. The Edwards also sought to recover for future custodial and rehabilitative care to be rendered to the child.
The PCF objected to any award to the Edwards for past or future custodial care rendered by them. The PCF argued that guardians, just as parents, have a duty to care for their children during their minority, pursuant to LSA-C.C. Art. 227. Further, the PCF contended that it has been its policy, codified one day prior to trial in its "Future Medical Care Case Guidelines," to prohibit the payment to a patient's family, spouse, or household member for providing nursing care or custodial services. The PCF also argued at trial that the Edwards lacked standing, as the tutor or tutrix is the proper party to assert a claim on behalf of a minor. We note initially that Alexander's mother, Beverly Edwards, as tutrix of the minor child, was allowed to join with the Edwards in their demand for compensation for custodial care, without objection by the PCF. As such, the Edwards are properly before the court to assert their demands.
This matter was tried on February 7, 1992. On September 30, 1992, the trial court entered a judgment in favor of the PCF, finding that the Edwards were not entitled to recover for past and future custodial care.
In its reasons for judgment, the trial court adopted the criteria set forth in Tanner v. Fireman's Fund Insurance Companies, 589 So. 2d 507 (La.App. 1st Cir.1991), writ denied 590 So. 2d 1207 (La.1992). Tanner held that (1) the need for services must be shown, (2) the reasonableness of the fee must be established and (3) the extent and duration of the services must be proven.
*1389 DISCUSSION
Since the trial court's judgment, this court has addressed and resolved, in Bower v. Schumpert Medical Center, 618 So. 2d 600 (La.App.2d Cir.1993), several of the issues raised by the parties on appeal. In Bower, supra, a factually similar case, we found to be invalid the PCF's rule prohibiting payment to medical malpractice victim's relatives for nursing care and custodial care, and that the three-prong Tanner test is the proper one to be applied in determining whether to allow payment for such services.
Under LSA-R.S. 40:1299.43, once a settlement is reached or a judgment is entered in a medical malpractice case, the PCF is to provide for future medical care and related benefits. LSA-R.S. 40:1299.43(B)(1) defines "future medical care and related benefits" as
all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services [including] drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services, after the date of the injury.
Nothing in the statutes regulating the PCF and its Oversight Board prohibits payments to relatives, friends or family members for custodial care. The only authority cited to this court for denying such payments is the PCF Oversight Board rule which we found to be invalid in Bower, supra.
In ordinary damage suits, the fact that medical attention and nursing services have been rendered gratuitously will not preclude the injured party from recovering the value of such services. Tanner v. Fireman's Fund Insurance Companies, supra; Carpenter v. Hartford Fire Insurance Company, 537 So. 2d 1283 (La.App.2d Cir.1989); Bordelon v. Aetna Casualty and Surety Company, 494 So. 2d 1283 (La.App.2d Cir.1986); Williams v. Campbell, 185 So. 683 (La. App.2d Cir.1938). However, a claim for nursing care rendered gratuitously by nonprofessional family members must be closely scrutinized. The need for services must be shown, the reasonableness of the fee must be established and the extent and duration of the services must be proven. Tanner v. Fireman's Fund Insurance Companies, supra.
In the instant case, the trial court applied the proper standard in determining whether custodial care payments should be allowed for services rendered, and concluded that an award should not be made for the care rendered to Alexander by the Edwards. It found that, although the appellants had proven that the child needs constant care, they did not demonstrate that the fees claimed were reasonable or prove the extent and duration of the services.
A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Nevertheless, when the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to determine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So. 2d 840 (La.1989); Collier v. Southern Builders, Inc., 606 So. 2d 885 (La.App.2d Cir. 1992). Our review of the record leads us to conclude that the Edwards have offered sufficient proof to justify an award for care, though not at the rate or for the extent of time originally sought.
REASONABLENESS OF THE FEE AND EXTENT OF SERVICES
Mrs. Edward's claim for $25 per hour and Mr. Edward's claim for $15 per hour is not supported by the record. Patrice Delcambre, R.N., is the director of All Children's Health Care, an agency which has provided the services of licensed practical nurses (LPNs) to the family. She testified that the hourly rate for LPNs is $28 to $32 per hour gross, and $9.50 to $11.50 per hour net. Sherri Lofton, R.N. and the assistant administrator for Nursing PRN, testified that her company compensates its LPNs at the rate of $12 per hour. In her experience, sitters, who are not medically trained, can be hired for $5 hourly.
Mrs. Edwards, who is not a high school graduate, has no formal nursing training or training in the care of severely handicapped children. With the exception of a certificate issued by the Association of Retarded Citizens/Ouachita (ARC/O) for successful completion *1390 of CPR training, she has developed her caregiving methods by observing other health care professionals. Likewise, Mr. Edwards has no formal health care training and supplements Alexander's physical therapy by manually exercising his limbs, a technique only learned from observing trained physical therapists.
Dr. Howard Katz, Alexander's treating physician, offered the most recent assessment of the child's medical condition. Although he believed the grandparents to be competent and caring, he opined that they do not always make the right decisions with regard to Alexander's care. For example, Dr. Katz felt that, in order to limit the recurring bouts of pneumonia, spatula feeding should be discontinued. He recommended further evaluation and possible surgical implantation of a feeding tube. As of the trial date however, the grandparents had not followed this recommended course of action. Dr. Katz also disagreed with the grandparents' suctioning out of food not swallowed. In his opinion, this procedure resulted in more foreign material entering the lungs.
Without formal training or qualifications, the Edwards should not be compensated at the rate of other health care professionals. Although they are dedicated and caring, the services which they provide are more comparable to that of a sitter. Under these circumstances, we find $6 per hour to be an appropriate rate of compensation considering the level of care given and the modest informal training they have received.
DURATION OF SERVICES
In the motion to compel payment of medical expenses, Mrs. Edwards avers that for the period May 30, 1987 through August 31, 1988, she cared for Alexander for 72 hours per week totaling 4,968 hours. For the same period, Mr. Edwards claims that he spent 35 hours per week totaling 2,415 hours. There is no testimony or evidence of record however, detailing the scope and type of care provided. For this time period, we cannot say that the trial court was manifestly erroneous in declining to recompense the Edwards. Rosell v. ESCO, supra.
Mrs. Edwards claims that for the period September 1, 1988, through the date of trial, February 7, 1992, she has cared for Alexander for not less than 15 hours per day. For the same period, Mr. Edwards claims that he has provided not less than five hours of care per day. However, Mr. Edward's employment necessitates that he spend five-week periods out of town three to four times yearly, time periods not deducted from Mr. Edward's calculation of hours spent. In addition, documents submitted by the PCF indicate that extensive nursing and sitter services have already been provided by All Children's Health Care, Nursing PRN, Ruby Young, and other unspecified LPNs.
After September 1, 1988, when Alexander moved into the Edwards' home, the parties established a routine of care which, according to their testimony, has not varied barring the child's illness or hospitalization. Alexander usually arises at 6:00 a.m. and is bathed, dressed, fed and administered medications and breathing treatments. Since the middle of September 1991, Alexander has attended, five days a week, a non-categorical pre-school class in the Monroe City School System. An LPN provided by All Children's Health Care takes Alexander to school and stays with him during the day. Twice weekly the LPN accompanies Alexander to Ruston for the various therapy described above. In the evenings after school, the Edwards feed, medicate and play with Alexander until he retires for bed at approximately 8:00 p.m.
From this schedule, we conclude that approximately 15 hours of custodial care per day is required. This figure takes into account the time spent by the Edwards during the night administering to Alexander suctioning and other treatments as needed. Therefore, we will award compensation for 15 hours per day, with deductions for simultaneous professional nursing or sitter care evident from the record.
We have calculated the number of hours of professional care per day by averaging the cost of service over the time period indicated by the PCF's records. Those hours were then deducted from a 15-hour care period with the resulting hours credited to the Edwards. Where it could not be determined at what rate or for how many hours such care *1391 was provided, no allocation of time was made in favor of the Edwards. Unless it was evident that professional care was provided while Alexander was hospitalized, no deductions were made for these periods since it has already been established that the child requires constant supervision. Thus, we find that from September 1, 1988 through February 7, 1992, the Edwards are entitled to be compensated for 16,962.5 hours of care at a rate of $6 per hour. Therefore, the Edwards are entitled to recover the amount of $101,775.00 for past custodial care.[1]
We further order the Louisiana Patient's Compensation Fund, in accordance with the foregoing guidelines and restrictions, to pay, for a period of 12 months after February 7, 1992, future custodial and rehabilitative care to be rendered by Mr. and Mrs. Edwards upon their submission of claims for such compensation. The trial court will maintain continuing jurisdiction over the case to review future awards for custodial care.
DECREE
Based on the foregoing, we reverse the trial court's judgment and render judgment in favor of William T. and Ruby Jeanette Edwards against the Louisiana Patient's Compensation Fund in the amount of $101,775.00, plus legal interest from date of judicial demand until paid on $93,762.60, and from date of judgment on the remainder of $8,012.40.[2] We further order the Louisiana Patient's Compensation Fund, in accordance with the foregoing guidelines and restrictions, to pay, for a period of 12 months after February 7, 1992, future custodial and rehabilitative care to be rendered by Mr. and Mrs. Edwards upon their submission of claims for such compensation. Costs in the trial court and in this court are assessed to appellees.
REVERSED AND RENDERED.
NOTES
[1] Our ruling renders moot all other errors claimed by appellants.
[2] Our calculations show $93,762.60 was due when suit was filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617341/ | 623 So. 2d 1228 (1993)
The STATE of Florida, Petitioner,
v.
Michael Lee CHRISTOPHER, Respondent.
No. 93-1606.
District Court of Appeal of Florida, Third District.
September 14, 1993.
Robert A. Butterworth, Atty. Gen., Katherine Fernandez Rundle, State Atty., and Paul Mendelson, Asst. State Atty., for petitioner.
Carl L. Masztal, Miami, Rhonda A. Anderson, Coral Gables, for respondent.
Before SCHWARTZ, C.J., and NESBITT and LEVY, JJ.
*1229 LEVY, Judge.
The State petitions for certiorari to review an order disqualifying an assistant state attorney from prosecuting a perjury charge. We grant the petition and quash the order under review.
The respondent, Michael Lee Christopher, is a City of Miami police Lieutenant who is being prosecuted for perjury stemming from a statement he gave on September 24, 1991, regarding the Leonardo Mercado use of force incident. John Kastrenakes, one of the two Assistant State Attorneys who was present for the taking of Christopher's statement, is now one of the prosecutors in the pending perjury charge. Christopher moved to disqualify Kastrenakes from acting as a prosecutor in the case, claiming that Kastrenakes might be called as a defense witness, and that Kastrenakes' participation in the trial would prejudice Christopher's right to a fair trial. The State responded to this motion by stating that nothing Kastrenakes could testify about was helpful to the defense, and even if his testimony would be helpful, Christopher had made no showing that such testimony was unavailable from other sources. The trial judge reserved ruling on the question of whether Kastrenakes would be allowed to testify, but nevertheless found that "his presence as prosecutor poses too great a threat to defendant's due process rights." The State has petitioned for a writ of certiorari to quash this order.
Assuming that Kastrenakes does not testify, we disagree with the trial judge's conclusion that his participation violates Christopher's due process rights. In cases where members of state attorneys' offices are either material witnesses, or otherwise involved with the facts or outcome of a case, our courts have required that a showing of actual prejudice be made before a motion for disqualification of the prosecuting attorney is properly granted. See State v. Cote, 538 So. 2d 1356, 1358 (Fla. 5th DCA 1989); Meggs v. McClure, 538 So. 2d 518, 519 (Fla. 1st DCA 1989); Clausell v. State, 455 So. 2d 1050, 1051 (Fla. 3d DCA 1984), original panel opinion approved, 474 So. 2d 1189 (Fla. 1985).
Here, Christopher has made no showing as to how he will be prejudiced by Kastrenakes' participation in the prosecution. Although Christopher claims that certain circumstances surrounding the taking of his statement will be material to his defense, he has not specified what those circumstances are. Christopher has not indicated how Kastrenakes might have been involved in those circumstances, nor how Kastrenakes' testimony could establish anything that might be deemed remotely favorable to Christopher's defense.
Moreover, Kastrenakes' mere presence at the giving of the statement does not, without more, disqualify him from prosecuting the case. "[M]ere first-hand knowledge of facts that will be proved at trial is not a per se bar to representation." United States v. Hosford, 782 F.2d 936, 938 (11th Cir.), cert. denied, 476 U.S. 1118, 106 S. Ct. 1977, 90 L. Ed. 2d 660 (1986). The fact that Kastrenakes heard the statement aurally, absent a showing of some prejudice flowing from that occurrence, does not bar his participation. See People v. District Court In And For The Third Judicial District, 192 Colo. 480, 560 P.2d 463 (1977) (prosecutor's eliciting of grand jury testimony did not bar his later prosecution of perjury charges stemming from that testimony). While we share the trial judge's concerns with assuring that Christopher receives a fair trial, we do not see Kastrenakes' participation as an obstacle to that end. Rather, we see it as the State proceeding with the assistance of the most qualified and prepared lawyer available to it, an aspect of this case not considered in the trial judge's order.
We recognize that the functions of a witness and a prosecuting attorney must be kept separate and distinct and that "the practice of acting as [both] prosecutor and witness is not to be approved and should be indulged in only under exceptional circumstances." Shargaa v. State, 102 So. 2d 809, 813 (Fla.), cert. denied, 358 U.S. 873, 79 S. Ct. 114, 3 L. Ed. 2d 104 (1958). See also Clausell v. State, 455 So.2d at 1051 n. 1. However, the order under review here was specifically not based upon the "witness-advocate" rule, but was based upon a due process approach. Consequently, the above line of cases is inapplicable to our analysis. Although the trial *1230 judge did not specifically rule on the question of whether Kastrenakes would be allowed to testify, we note that the record that exists in this case suggests that he will not testify. First, the State has clearly and unequivocally stated that it will not call Kastrenakes to testify on its behalf in this case. Second, the record is completely devoid of any proffer, suggestion, or intimation as to what possible knowledge, if any, that Kastrenakes might possess about which Christopher could have him testify in furtherance of Christopher's defense. In other words, the record contains nothing to suggest what the substance of Kastrenakes' testimony might be if he were to be called to testify by Christopher.
Accordingly, we grant the writ of certiorari, quash the order under review, and remand for further consistent proceedings.
Certiorari granted; order quashed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617377/ | 190 S.W.3d 237 (2006)
Hany ABDELNOUR, Appellant,
v.
MID NATIONAL HOLDINGS, INC. and MDS-Mid National, Ltd., Appellees.
No. 01-04-00573-CV.
Court of Appeals of Texas, Houston (1st Dist.).
January 5, 2006.
*239 Gary F. Cerasuolo, Smith & Cerasuolo, LLP, Houston, for Appellant.
Jack Wilson Higdon, Barry Abrams, Abrams Scott & Bickley, LLP, Houston, for Appellee.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
OPINION
SHERRY RADACK, Chief Justice.
This is an appeal of a no-evidence summary judgment granted in favor of appellees, Mid National Holdings, Inc. and MDS-Mid National, Ltd. [collectively, "Mid-National"]. We affirm.
BACKGROUND
In 1998, appellant, Hany Abdelnour, filed suit in Canada against Midanco Canada, Inc. and Midanco (U.K.) [collectively, "Midanco"] and Joseph Zaidan, alleging that they breached a contract to purchase Midanco stock from him. On May 20, 1998, the Canadian court granted a default judgment against Midanco for $359,054 and against Zaidan for $129,054. On May 11, 2002, Abdelnour filed suit against Mid-National here, contending that it was the alter-ego of Midanco and Zaidan, and, therefore, should be responsible for payment of the debt created by the Canadian judgment.
On December 23, 2002, Zaidan, one of the Canadian defendants, filed a motion in revocation of judgment, which requested that the Canadian court revoke the default judgment. On December 27, 2002, the Canadian court entered an interim stay of execution of the judgment pending a ruling on Zaidan's motion in revocation. It is undisputed that Zaidan's motion in revocation is still pending in the Canadian court. As such, the default judgment has not yet been set aside, but Abdelnour is prohibited from enforcing it.
PROPRIETY OF "NO EVIDENCE" MOTION FOR SUMMARY JUDGMENT
Mid-National filed a no-evidence motion for summary judgment, contending that *240 (1) Abdelnour cannot base his alter ego claims on an unenforceable underlying claim; (2) Abdelnour's alter-ego claims are barred by limitations; (3) Abdelnour does not have standing to bring a suit to collect the Canadian court debt; and (4) there is no evidence to show that Mid-National was Zaidan's or Midanco's alter-ego.
The trial court granted Mid-National's motion for summary judgment, and this appeal followed. On appeal, Abdelnour contends the trial court erred in (1) proceeding on the motion for summary judgment despite a pending motion to abate or continue, (2) ruling that the underlying suit, upon which this suit is predicated, was unenforceable; (3) ruling that Abdelnour did not have standing; (4) ruling that Abdelnour's claims were barred by limitations; and (5) granting Mid-National's no-evidence summary judgment.
Standard of Review
A no-evidence motion for summary judgment is essentially a directed verdict granted before trial, to which we apply a legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App.-Austin 1998, no pet.). In general, a party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the non-movant's claims on which it would have the burden of proof at trial. Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex.App.-Austin 2000, no pet.). Once the movant specifies the elements on which there is no evidence, the burden shifts to the non-movant to raise a fact issue on the challenged elements. TEX.R. CIV. P. 166a(i). A no-evidence summary judgment will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751. We view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id.
A no-evidence summary judgment is improperly granted if the non-movant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. When the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, more than a scintilla of evidence exists. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). A defendant who moves for summary judgment need only negate one element of the plaintiff's cause of action. See Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).
In its motion for summary judgment, Mid-National contended it was entitled to summary judgment because there was no evidence to merit the submission of Abdelnour's alter-ego theory to the jury on any of the following elements:
(1) unity in identity of shareholders, directors, officers, and employees;
(2) failure to distinguish in ordinary business between the two entities;
(3) failure to observe corporate formalities;
(4) whether operating capital of one corporation is provided by the other corporation of whether the capital is borrowed from other sources;
(5) the extent to which separate books and accounts have been kept;
(6) whether the two entities have common departments of business;
*241 (7) whether the two entities have separate meeting of shareholders and directors;
(8) whether an officer or director of one corporation is permitted to determine the policies of the other; or
(9) whether the two entities filed consolidated tax returns.
See Stewart & Stevenson Servs. v. Serv-Tech, 879 S.W.2d 89, 107 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (listing some factors available to prove an alter-ego theory).
Mid-National also contended there was no evidence to pierce the corporate veil under a "sham to perpetuate a fraud" theory because there was no evidence that Abdelnour had fallen victim to an unfair device by which a corporate entity has been used to achieve an inequitable fault. See Lucas v. Texas Indus., Inc., 696 S.W.2d 372, 375 (Tex.1984).
Abdelnour responded to the motion for summary judgment, but did not offer any summary judgment proof on any of the elements listed above in the "piercing the corporate veil" theories of recovery. Instead, he attached (1) the Canadian judgment and (2) an "affidavit" by Victor Doche, a former employee of Zaidan. The Doche "affidavit" was not notarized, was submitted to the court in camera, and was never provided to Mid-National.
We begin by noting that documents may be tendered in camera for the purpose of obtaining a ruling on the admissibility of such documents. See TEX.R. CIV. P. 76a(2)(a)(1). Documents tendered under 76a(2)(a)(1) are not "court records" and need not be given to the opposing party until the trial court rules on their admissibility. However, the issue in this case is not the admissibility of the Doche "affidavit." Instead, the issue is whether Abdelnour may use the Doche "affidavit" as evidence without making it public and showing it to Mid-National. We hold that he may not. There is simply no provision whereby evidence, whether at trial or in a summary judgment motion, may be held in camera, i.e., kept secret, absent a sealing order under rule 76a, and, in any event, must be provided to opposing counsel. Because the Doche "affidavit" was never filed with the district clerk or provided to Mid-National's counsel, it is an ex parte communication. See Barnes v. Whittington, 751 S.W.2d 493, 495 (Tex.1988). This Court cannot properly consider any ex parte communication, which has been submitted outside of, and is not part of, the appellate record. Nguyen v. Intertex, Inc. 93 S.W.3d 288, 293 (Tex.App.-Houston [14th Dist.] 2002, no pet.).
PROPRIETY OF DENIAL OF ABATEMENT OR CONTINUANCE
In issue one, Abdelnour contends that the trial court erred in proceeding with the motion for summary judgment despite the Canadian court's stay of execution and the pending motions to abate and/or continue the case. However, Abdelnour's brief on this issue contains no citations to authorities or the record.
Texas Rule of Appellate Procedure 38.1(h) requires appellate briefs to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Issues on appeal are waived if an appellant fails to support his contention by citations to appropriate authority or cites only to a single non-controlling case. Wolfe v. C.S.P.H., Inc., 24 S.W.3d 641, 647 (Tex. App.-Dallas 2000, no pet.); see also Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim. App.2000). This rule does not prohibit an appellant from making a novel argument for which there is no authority "directly on *242 point." However, a novel contention must be grounded in analogous case law or provide a relevant jurisprudential framework for evaluating the claim. See Tong, 25 S.W.3d at 710.
Abdelnour's brief provides no citation to the record, nor any discussion of relevant or analogous authorities to assist the Court in evaluating its claim that the trial court erred by proceeding with the motion for summary judgment. As such, issue one on appeal is waived.
CONCLUSION
In light of our dispositions of issues one and five, we need not address the remaining issues on appeal, and we decline to do so. We affirm the judgment of the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617368/ | 38 So. 3d 874 (2010)
BDO SEIDMAN, LLP., Appellant,
v.
BANCO ESPIRITO SANTO INTERNATIONAL, etc., et al., Appellees.
Nos. 3D09-324, 3D09-197, 3D07-2746, 3D07-2472.
District Court of Appeal of Florida, Third District.
June 23, 2010.
Greenberg Traurig, and Elliot H. Scherker, Elliot B. Kula, Julissa Rodriguez, and Brigid F. Cech Samole; Greenberg, Traurig and Karen Y. Bitar and Adam D. Cole, New York; Alvarez Armas & Borron, and Arturo Alvarez, for appellant/cross-appellee.
Holland & Knight, and Rodolfo Sorondo, Jr., Miami and Christopher N. Bellows; Gamba & Lombana, and Hector J. Lombana, Coral Gables; Thomas Alexander & Forrester and Steven W. Thomas, Emily Alexander and Mark Forrester; Billbrough *875 & Marks and Geoffrey B. Marks, Coral Gables; Gonzalo Dorta, for appellees/cross-appellants.
Before COPE, WELLS, and SALTER, JJ.
SALTER, J.
The accounting firm of BDO Seidman, LLP appeals a jury verdict and final judgment awarding the appellees over $159 million in compensatory damages and over $351 million in punitive damages. The appelleesBanco Espirito Santo and two of its affiliates (collectively, "Banco") cross-appeal the denial of prejudgment interest on the compensatory award from the date the losses allegedly occurred through the date of the jury verdict. We reverse the final judgment and remand the case for a new trial, finding that the "trifurcation" of the trial into three distinct phases impermissibly allowed the jury to render a verdict on BDO's liability for gross negligence (a determination pertinent in this case as a predicate for the later consideration of punitive damages)[1] two months before the jury's consideration of, and verdict deciding, the intertwined issues of causation, reliance, and comparative fault.
Because of the prejudice inherent in the premature, first-phase gross negligence finding, we do not address in detail other aspects of the trial. Our conclusion regarding the "trifurcation" issue renders moot or pretermits our consideration of most of the other parts of the jury's verdicts and the remaining points on appeal and cross-appeal.
I. The Bifurcation Rulings
The trial court's good intentions are apparent from this record, and the bifurcation of liability and damages is ordinarily within the sound discretion of the trial court. Florida Rule of Civil Procedure 1.270(b); Roseman v. Town Square Ass'n, 810 So. 2d 516 (Fla. 4th DCA 2001). The salutary objectives of judicial economy (no phase II damages trial is required if the jury returns a defense verdict in phase I), and the reduction of a longer case into more digestible "phases," often support bifurcation and the exercise of that discretion. These objectives are much harder to achieve, however, in a complex case brought by plaintiffs not in privity with the accounting firm/defendant. In such a case, liability ultimately turns on specific demonstrations of knowledge, intent, and reliance.[2] The evidence pertaining to those issues is inextricably intertwined with the claims and affirmative defenses on issues of comparative fault, causation, and gross negligence.
In this case, the parties did not move for bifurcation. The trial court notified the parties that the case would be tried in phases. First, the jury would hear evidence on whether BDO breached its professional duties to its former client, the bankrupt non-party E.S. Bankest L.L.C. ("Bankest"), whether BDO's duties extended to the appellees and, if so, whether the appellees relied on BDO's audit reports. Second, if the first phase culminated in a verdict finding duty and breach of duty, a trial on damages would proceed. This plan was later modified, however.
The trial court ultimately determined that comparative fault and causation issues *876 would be tried and determined in the second, compensatory damages phase rather than in the first phase. The question of whether BDO was "personally guilty of gross negligence"[3] would be determined in the first phase. The jury would then be asked at the close of phase II whether Banco was entitled to punitive damages against BDO (and if so, the amount of those punitive damages would be determined in phase III). This meant that the phase I jury deliberation regarding negligence and gross negligence did not include specific evaluations of the alleged negligence and fault, including failures to report or act, on the part of the Banco parties and ten third-party or Fabre[4] actors. Those determinations occurred instead at the close of phase II, when all of the evidence in that phase was viewed against the backdrop that BDO had already been found not merely negligent, but so negligent (or "guilty") as to arise to the level of intentional disregard for the rights of others. The jury's phase I finding of gross negligence required them to find that "guilt" by clear and convincing evidence as well, and they were reminded of this in the phase II instruction on "entitlement" to punitive damages:
You already have found Defendant BDO Seidman grossly negligent by clear and convincing evidence. If you now find for Plaintiff ESB Finance or Plaintiff Banco Espirito Santo, S.A. (Nassau Branch) and against Defendant BDO Seidman, you should consider whether in addition to compensatory damages, Plaintiffs are entitled to punitive damages in the circumstances of this case as punishment and as a deterrent to others.
As noted, the jury returned a phase II verdict finding no comparative fault by Banco or others, finding compensatory damages totaling $170 million, and finding an entitlement to punitive damages. The next day, the jury returned its phase III verdict for $351,689,343.
II. Analysis
A. The Impact of the Phase I Gross Negligence Verdict
Punitive damages are a form of extraordinary relief for acts and omissions so egregious as to jeopardize not only the particular plaintiff in the lawsuit, but the public as a whole, such that a punishmentnot merely compensationmust be imposed to prevent similar conduct in the future:
Under Florida law, the purpose of punitive damages is not to further compensate the plaintiff, but to punish the defendant for its wrongful conduct and to deter similar misconduct by it and other actors in the future. See W.R. Grace & Co.-Conn. v. Waters, 638 So. 2d 502, 504 (Fla.1994); see also White Constr. Co. v. Dupont, 455 So. 2d 1026, 1028 (Fla.1984); St. Regis Paper Co. v. Watson, 428 So. 2d 243, 247 (Fla.1983). In White Construction Co., we reaffirmed the standard necessary to justify the imposition of punitive damages:
The character of negligence necessary to sustain an award of punitive damages must be of a "gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of *877 the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them."
455 So.2d at 1029 (quoting Carraway v. Revell, 116 So. 2d 16, 20 n. 12 (Fla. 1959)). Hence punitive damages are appropriate when a defendant engages in conduct which is fraudulent, malicious, deliberately violent or oppressive, or committed with such gross negligence as to indicate a wanton disregard for the rights and safety of others.
Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483, 486 (Fla.1999) (footnote omitted).
The Legislature codified the definition of "gross negligence" (as a predicate for a punitive damages claim) in section 768.72(2)(b), Florida Statutes (2007):
"Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.
This definition is also found in the standard jury instruction on punitive damages[5] as adapted and given in this case. The phase I jury instructions at issue here did not use the specific term "punitive damages," but they did include the definition of "gross negligence" in the standard instruction and the further requirement that the standard of proof for such a finding is "by clear and convincing evidence":
"Clear and convincing evidence" differs from the "greater weight of the evidence" in that it is more compelling and persuasive. "Greater weight of the evidence" means the more persuasive and convincing force and effect of the entire evidence in the case. In contrast, "clear and convincing evidence" is "evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue" (emphasis added).
Thus, two months before the jury retired in phase II to deliberate whether comparative fault on the part of Banco or ten other specific persons and entities was a legal cause of any damages suffered by Banco, the jurors had already rendered a verdict of "guilt" reflecting their "firm belief or conviction, without hesitation" that BDO was so reckless or wanting in care that its acts and omissions "constituted a conscious disregard or indifference to the rights of persons exposed to its conduct." And in phase II argument, counsel for Banco reminded the jury in no uncertain terms that they had already reached such a conclusion.[6]
B. Mullen and Engle
In defense of this unusual order of proof and factfinding, Banco relies upon Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5th Cir.1999), a case cited favorably by our Supreme Court in Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1270 (Fla. 2006). We do not find Banco's argument persuasive, however, as Mullen and Engle involved bifurcation issues in class actions,[7] another level of complexity that is not pertinent here. Those cases considered a division of fact-finding between mass tort issues that are appropriate for class adjudication (liability, affirmative defenses applicable *878 to all class members, and predicate requirements for consideration of an award of punitive damages) and those issues only appropriate for individual determinations (causation, actual damages, and comparative fault).
In those cases, bifurcation was permitted so long as the same issue would not be reexamined by different juries. Mullen, 186 F.3d at 628. The underlying rationale for permitting the class-phase/individual-phase bifurcation is the avoidance of hundreds of trials on the same (common, class-phase) issues of fact. In this case, in contrast, only two related Banco claimants actually sought recovery against a single defendant based on a single set of operative facts. No class claim was asserted. There was no class-type rationale for allowing the jury to determine the pivotally-important gross negligence/punitive damage finding before it deliberated and determined the interwoven causation and comparative fault issues.
Mullen did not involve a claim for punitive damages, much less any consideration of whether the predicate findings on entitlement to such damages could be rendered before the individual issues of causation, damages, and comparative fault were to be heard by the same jury. That opinion does, however, cite several other federal bifurcated class actions in which punitive damages were to be resolved commonly and other issues would be tried individually. Mullen, 186 F.3d at 628. The Supreme Court of Florida found Mullen persuasive on the constitutionality[8] of bifurcation in class actions involving two jury trials (phase one on common class issues, phase two on issues unique to each individual claimant). Engle, 945 So.2d at 1270-71.
But on the point involved herewhether evidence regarding causation and comparative fault can be considered in a separate phase after the same jury has found the factual predicate for punitive damages the majority decision in Engle held that the trial court erred in allowing the jury to find entitlement to punitive damages during phase I. Engle holds that such a determination was "premature." Id. at 1269. Two Justices dissented from that holding. Their analysis is essentially the argument advanced by Banco here: a jury verdict in phase I holding that BDO was "grossly negligent" was not a finding of "entitlement to punitive damages," or "liability for punitive damages," which was properly determined in phase II.
The Engle majority's holding is controlling. The phase I finding of breach of duty "did not constitute `a finding of liability,'" because in phase II the jury might conceivably have found for BDO on legal causation and comparative fault. If the jury had done so, that "would have precluded the jury from awarding compensatory or punitive damages." Id. at 1263. This is also a practical rule to follow, because here phase II seems akin to shooting fish in a barrel. The jurors should have been allowed to consider all of the evidence on causation and other allegedly-responsible actors as they decided whether "the conduct of [BDO] was so reckless or wanting in care that it constituted a conscious disregard or indifference to the rights of persons exposed to its conduct." For example, it seems impossible for the jury in phase II to weigh objectively (and under a "mere preponderance" standard) the alleged effect of the acts and omissions of Banco's Victor Balestra[9] against BDO's *879 conduct two months after finding (under a "clear and convincing" standard) that BDO was reckless and consciously indifferent to the rights of anyone (appellees or otherwise) exposed to BDO's conduct.
C. Banco's "Same Evidence" Argument
Banco also argues that the "fine line" between simple and gross negligence made it appropriate for the jury to determine duty and breach for both simple and gross negligence in phase I. In further support of this proposition, Banco cites numerous cases in which a jury decided whether a defendant's conduct in a particular case constituted simple negligence or gross negligence. In those cases, however, there was no bifurcation. There were no comparative fault issues. Each of the cases involved a trial in which the distinction between simple and gross negligence was a critical element of liability (by virtue of Florida's guest automotive passenger statute, former section 320.59, Florida Statutes, repealed in 1972,[10] or because of the gross negligence exception to worker's compensation exclusivity and immunity[11] in earlier versions of chapter 440).
In one case cited by Banco, this Court relied upon and quoted the Supreme Court of Florida's holding in Faircloth v. Hill, 85 So. 2d 870, 872 (Fla.1956):
While each separate act involved in the drama might not in and of itself establish gross negligence, nevertheless, the entire course of conduct of the automobile driver under all of the circumstances and in the light of all the related factors taken collectively might well establish the existence of gross negligence. . . . (emphasis added).
Madden v. Killinger, 97 So. 2d 205, 206 (Fla. 3d DCA 1957). Similarly, in Hellweg v. Holmquist, 203 So. 2d 209, 211 (Fla. 4th DCA 1967), also cited by Banco, a driver's gross negligence in an automobile accident was said to depend upon "the time, location, amount of traffic, physical conditions, and all other elements that affect travel."
While an accounting firm's conduct of an audit is quite different than the operation of an automobile, a "gross negligence" finding in either case should be based upon a thorough consideration of all of the evidence bearing on causation, reliance, and comparative fault. In this case, some of that evidence was not admitted until well after a verdict of gross negligence already had been rendered. Banco's "same evidence for simple and gross negligence" argument might prove persuasive in a case in which only the defendant's conduct mattered. But in this case, the jury did not consider the same evidence for anything but the "breach of duty" element of simple negligence. Causation, reliance, and comparative fault evidence, bearing directly on damages as an element of liability for simple negligence, was presented after gross negligence had already been determined.
III. Other Issues
As noted at the outset of this opinion, our conclusion on "trifurcation" obviates the need for extended analysis of the other issues raised by the parties. We briefly address three points to assist the parties and the trial court in a re-trial:
*880 A. Hearsay
A court-appointed receiver or trustee is ordinarily a successor records custodian and may establish the necessary foundation for the admission of the defunct entity's records of regularly conducted business activity for purposes of section 90.803(6) and (7), Florida Statutes (2009). Similarly, the receiver or trustee may testify from personal knowledge regarding relevant aspects of his or her own personal investigation of the business failure and liquidation or reorganization of the entity. There is, however, no broad exemption from the rules of evidence that would allow a receiver or trustee to introduce hearsay, or hearsay within hearsay, regarding statements by out of court declarants.
BDO argues that the trial court erred by taking judicial notice of a bankruptcy court order, and allowing that order to be shown to the jury.[12] The trial court took the view that the facts determined by the bankruptcy court were properly admissible in this case. BDO's objection should have been sustained.
"Inadmissible evidence does not become admissible because it is included in a judicially noticed court file." The Florida Bar, Evidence in Florida § 2.12, at 2-7 (7th ed.2008). "Although a trial court may take judicial notice of court records, it does not follow that this provision permits the wholesale admission of all hearsay statements contained within those court records." Stoll v. State, 762 So. 2d 870, 876 (Fla.2000) (citation omitted). "[T]here has been a `seemingly widespread but mistaken notion that an item is judicially noticeable merely because it is part of the "court file."'" Id. at 877 (citation omitted).
"A court judgment is hearsay `to the extent that it is offered to prove the truth of the matters asserted in the judgment.'" United States v. Sine, 493 F.3d 1021, 1036 (9th Cir.2007) (citation omitted). As to those matters, there must be an applicable hearsay exception. Stoll, 762 So.2d at 876; § 90.805 (2009); see also Charles W. Ehrhardt, Ehrhardt's Florida Evidence § 204.2, at 85 & n. 5 (2009).
Under the Evidence Code, a request for judicial notice is also subject to analysis under section 90.403, Florida Statutes. See § 90.204, Fla. Stat. "[J]udicial findings of fact `present a rare case where, by virtue of their having been made by a judge, they would likely be given undue weight by the jury, thus creating a serious danger of unfair prejudice.'" Nipper v. Snipes, 7 F.3d 415, 418 (4th Cir.1993); see also Secada v. Weinstein, 563 So. 2d 172, 173-74 (Fla. 3d DCA 1990). For these reasons, the subject bankruptcy order was not a proper subject of judicial notice, nor properly admissible in evidence.
Another bankruptcy order was also introduced into evidence (rather than being judicially noticed).[13] For the reasons explained above, BDO's objection to its introduction also should have been sustained.
B. Reliance By Noteholders
The case went to the jury on two theories of reliance. One was the alleged reliance *881 in 2002 by ESB Finance, Ltd., a special purpose entity formed by Espirito Santo International, S.A., when ESB Finance acquired the "several hundred" promissory notes issued earlier by Bankest. An officer of ESB Finance and an officer of Bankest testified that the BDO audit partner assented to ESB Finance's reliance on the BDO audit reports on Bankest's financial statements, though this was denied by the BDO partner, thus creating a jury question under Max Mitchell.
But Banco also argued a second theory in the trial court and herethat the noteholders themselves were intended by BDO to rely on the BDO audit reports on Bankest. Banco argues that the noteholders relied, and were understood by BDO to be relying, on the BDO-audited statements because those statements were part of the private placement memoranda provided to each such noteholder. Banco later purchased the notes from the noteholders, who assigned their rights to ESB Finance. By reason of the assignments, ESB Finance stood in the shoes of the noteholders.
To show noteholder reliance, Banco had to comply with the test outlined in Restatement (Second) of Torts section 552, which was adopted in Max Mitchell, 558 So.2d at 15-16. Under that test, BDO would have potential liability only if BDO knew, at the time it was hired for a particular audit, that the audit would be used as part of a private placement memorandum which was to be given to prospective purchasers of the notes. Max Mitchell, 558 So.2d at 15-16. Alternatively, BDO would also be covered by Max Mitchell if BDO subsequently affirmatively consented to the audit report's inclusion in the private placement memoranda.
With regard to Bankest's 1998 and 1999 private placement memoranda, it is undisputed that the BDO audit reports were not attached. Banco argues, however, that reliance was proven because two witnesses testified that some of the prospective purchasers of the 1998 and 1999 notes received the BDO audit reports for other reasons. The fact that a prospective purchaser obtained an audit report for another reason is insufficient to impose liability under Max Mitchell. The Max Mitchell decision cites with approval illustration 10 of Restatement section 552, as follows:
10. A, an independent public accountant, is retained by B Company to conduct an annual audit of the customary scope for the corporation and to furnish his opinion on the corporation's financial statements. A is not informed of any intended use of the financial statements; but A knows that the financial statements, accompanied by an auditor's opinion, are customarily used in a wide variety of financial transactions by the corporation and that they may be relied upon by lenders, investors, shareholders, creditors, purchasers and the like, in numerous possible kinds of transactions. In fact B Company uses the financial statements and accompanying auditor's opinion to obtain a loan from X Bank. Because of A's negligence, he issues an unqualifiedly favorable opinion upon a balance sheet that materially misstates the financial position of B Company, and through reliance upon it X Bank suffers pecuniary loss. A is not liable to X Bank.
558 So.2d at 15 (emphasis added). The proof of reliance in this case was inadequate with regard to the holders of the 1998 and 1999 notes.[14]
*882 We next consider any private placement memoranda which actually included BDO audit reports, and where BDO knew that this was an intended use at the time BDO was hired, or BDO affirmatively consented to such use. Banco must then prove individualized reliance by each noteholder. Lance v. Wade, 457 So. 2d 1008, 1011 (Fla. 1984).
Banco maintains that it can prove individual reliance by calling just one noteholder to testify that he or she relied on the BDO audits. Banco contends that because the private placement memoranda and audit for any particular note series were identical, it can be inferred that every nontestifying noteholder had the same reliance as the testifying noteholder. We disagree. As stated in Lance, "What one purchaser may rely upon in entering into a contract may not be material to another purchaser." 457 So.2d at 1011. The case cited by Banco, Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir.2004), involves a different issue. The Klay decision acknowledges that "each plaintiff must prove his own reliance in this case...." Id. at 1259. The Klay court was considering whether, for purpose of class certification, the common issues of fact regarding reliance outweighed the individual issues, and concluded that under the facts of that case, the common issues predominated. Id.
Banco also argues that it may prove reliance by indirect means. Banco maintains that the noteholders relied on Banco, which in turn relied on BDO's financial statements. For this proposition Banco relies on Joseph v. Norman LaPorte Realty, Inc., 508 So. 2d 496, 497 (Fla. 3d DCA 1987), which involved construction of a swimming pool. The present case involves accountant liability, on which Max Mitchell is controlling. This part of Banco's argument runs counter to Max Mitchell and illustration 10 of section 552, quoted above.
C. Punitive Damages
The amount of punitive damages assessed against BDO exceeded several-fold BDO's net worth according to the phase III record. While it is true that BDO, like most professional service firms, distributed substantially all of its annual net income to its partners (leaving a year-end net worth much lower than annual net income), the $351 million punitive damages award would plainly "lead to [the defendant's] financial demise." Lipsig v. Ramlawi, 760 So. 2d 170, 189 (Fla. 3d DCA 2000). An accounting firm that must distribute its net income and net worth to judgment creditors rather than the partners who produced that income will not have partners (or clients) for long. But for our decision to remand for a new trial on the "trifurcation" issue, we would have been compelled to find an abuse of discretion in the denial of BDO's post-trial motion for a remittitur regarding the punitive damages.
IV. Conclusion
The trial of this case consumed four months of attentive service by a jury and a dedicated trial judge.[15] We have carefully considered every substantive and procedural authority that might be applied to preserve at least some of the jury's findings.
In this case, however, no such balm is to be found. The fact issues are, to use that word that frustrates bifurcation, "intertwined." The cart cannot lead the horse. But if nothing else, the trifurcated trial has identified those evidentiary disputes (publication of excerpts from a plan of reorganization and statements by an out-of-court *883 prosecutor, for example) that may be resolved in a pretrial conference on remand and in a streamlined,[16] two-phase trial. We have also provided guidance on other issues in an effort to assist the trial court on remand. All issues except the quantum of punitive damages can be determined in phase I. If entitlement to punitive damages is found in phase I, quantum of punitive damages can be determined in phase II.
Reversed and remanded for further proceedings in accordance with this opinion.
NOTES
[1] As the jury was instructed at the close of that first phase, "gross negligence means you find by clear and convincing evidence that the conduct of BDO Seidman was so reckless or wanting in care that it constituted a conscious disregard or indifference to the rights of persons exposed to its conduct."
[2] First Fla. Bank, N.A. v. Max Mitchell & Co., 558 So. 2d 9, 15 (Fla.1990) ("Max Mitchell").
[3] "Guilty of gross negligence" is part of the standard jury instruction on punitive damages and is the precise wording given to the jury in phase I of the trial here.
[4] Fabre v. Marin, 623 So. 2d 1182 (Fla.1993).
[5] Standard Jury InstructionsCivil Cases (No. 00-2), 797 So. 2d 1199 (Fla.2001).
[6] Indeed, counsel argued to both the jury and the trial court that BDO's evidence and argument on causation in phase II were in defiance of the jury's phase I verdict.
[7] Mullen involved a class action brought by former employees of a floating casino alleging that the vessel's ventilation system caused respiratory illnesses, while Engle considered Florida-based claims for damages allegedly caused by addiction to cigarettes containing nicotine.
[8] In federal cases, the Seventh Amendment to the United States Constitution, and in state court cases in Florida, article I, section 22, of the Florida Constitution, prohibit the reconsideration of a jury's findings on a defendant's conduct by a different jury.
[9] Balestra was simultaneously vice chairman of BDO's client (Bankest, the fraudulent Miami factoring company), president of the Espirito Santo Bank (one-half owner of Bankest) in Miami, and a director of ESB Finance Ltd. (the special-purpose entity formed to purchase $140 million in notes (as a result of the fraud, notes ultimately worth about 10 cents on the dollar)) originally issued to worldwide customers of Espirito Santo International, S.A.
[10] See, e.g., Madden v. Killinger, 97 So. 2d 205 (Fla. 3d DCA 1957); Foy v. Fleming, 168 So. 2d 177 (Fla. 1st DCA 1964).
[11] See Courtney v. Florida Transformer, Inc., 549 So. 2d 1061 (Fla. 1st DCA 1989).
[12] In re: E.S. Bankest, L.C., 321 B.R. 588 (Bankr.S.D.Fla. 2005) (Opinion (1) granting Joint Motion of Lewis B. Freeman and Banco Espirito Santo International, LTD. for Final Summary Judgment Disallowing Claims filed by BDO Seidman, LLP, and (2) Denying BDO Seidman, LLP's Motion for Summary Judgment).
[13] In re: E.S. Bankest, L.C., 321 B.R. 588 (Bankr.S.D.Fla. 2005) (Order Granting Judgment on Partial Findings in Favor of Respondents on the Motion by Gunster, Yoakley & Stewart, P.A. for an Order (I) Converting Chapter 11 Case to Case under Chapter 7 of the Bankruptcy Code, or (II) Appointing chapter 11 Trustee, or (III) Appointing an Examiner, Pursuant to 11 U.S.C. § 1112(B) and Bankruptcy Rule 9014).
[14] If private placement memoranda were issued for other years without BDO audits, the same principles would apply.
[15] Because of a prior mistrial correctly granted by the trial court, the trial judge actually expended over seven months of trial time on the case, in addition to the pretrial motions and hearings considered over the preceding three years.
[16] "Streamlined" would hardly seem to apply to a trial that previously took four months. It does appear, from a complete review of the transcript, that phases I and II overlapped in part as to various witnesses and the related cross-examination. Telescoping these phases and witnesses into a single phase may actually reduce the cumulative number of trial days on remand. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645480/ | 40 So.3d 845 (2010)
Hiraldo VALLE, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D10-1010.
District Court of Appeal of Florida, Third District.
July 14, 2010.
Hiraldo Valle, in proper person.
Bill McCollum, Attorney General, for appellee.
Before GERSTEN, SHEPHERD, and LAGOA, JJ.
PER CURIAM.
Affirmed. See § 944.275(3)(a), Fla. Stat. (1994); Gusow v. State, 6 So.3d 699 (Fla. 4th DCA 2009). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2587914/ | 205 P.3d 131 (2009)
STATE
v.
MERCER.
No. 82281-6.
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/2587930/ | 205 P.3d 101 (2009)
226 Or. App. 603
CITY OF MILWAUKIE
v.
STANLEY MECHANICS TOOLS, INC.
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/1617637/ | 190 S.W.3d 532 (2006)
Carol CIBULKA, Plaintiff/Respondent,
v.
George CIBULKA, Defendant/Appellant.
No. ED 86938.
Missouri Court of Appeals, Eastern District, Division Five.
April 25, 2006.
Kathleen Shaul, Clayton, MO, for Plaintiff/Respondent.
George Cibulka, Saint Louis, MO, Defendant/Appellant acting pro se.
GLENN A. NORTON, C.J.
George Cibulka (Husband) appeals from a judgment finding him in civil contempt for failure to pay child support and ordering him incarcerated in the Department of Justice Services until he paid $13,826 in arrears to Carol Cibulka (Wife). Because there is no final, appealable judgment, we dismiss the appeal.
Husband and Wife were divorced in April 2002. The dissolution decree provided for joint legal and joint physical custody of the two minor children. Husband was ordered to pay $438 per month in child support. In April 2005, Wife filed a motion for contempt, asking that Husband be held in contempt for failure to pay child support.[1] On August 4, 2005, the trial court entered a judgment finding that *533 Husband was in contempt for failure to pay child support in the amount of $13,826 in arrears as of June 13, 2005. The judgment sentenced Husband to imprisonment in the St. Louis County Department of Justice Services until he paid to the registry of the court $13,826 for the child support arrearage. The Court further stayed execution of the sentence so long as Husband paid $1,000 per month to Wife towards the arrearage, commencing September 1, 2005, and if Husband "fails to make said payments, a warrant for his arrest shall issue forthwith after this Court is satisfied by proper proof that payment has not been made." Husband filed an appeal of the contempt judgment to this Court.
Like other judgments, a civil contempt order must be final before it may be appealed. In re Marriage of Crow and Gilmore, 103 S.W.3d 778, 780 (Mo. banc 2003). However, a civil contempt order is not final until it is enforced. Id. at 781. Until incarceration is ordered by way of the court issuing a warrant or an order of commitment, a civil contempt order is not enforced and remains interlocutory and unappealable. Id. Once a warrant or order of commitment is issued, the contempt judgment changes from a mere threat of incarceration to "enforcement." Id. at 782.
This Court issued an order directing Appellant to show cause why his appeal should not be dismissed for lack of a final, appealable judgment. Appellant has filed a response. In sum, Appellant's response asserts that if he cannot appeal from the contempt judgment in question until "the sentence has been carried out," then he has no opportunity to have his wrongs redressed by a higher court. He asserts this violates several of his constitutional rights. While it is true that the contempt judgment in issue is not yet appealable, it may become appealable without Appellant's sentence being "carried out." The contempt judgment merely threatens Appellant with imprisonment. It states that Appellant's failure to take certain action will result in a warrant being issued. However, there is nothing in the record on appeal that Appellant has provided that shows any such warrant has been issued. Until that warrant or an order of commitment is issued, the contempt judgment merely threatens incarceration. Until incarceration is ordered, the contempt order is not enforced and remains interlocutory and unappealable. Once the warrant is issued, then the contempt judgment will be enforced and Appellant may appeal at that time.
The appeal is dismissed without prejudice for lack of a final, appealable judgment.
KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concurring.
NOTES
[1] Wife also filed a motion to modify, while Husband filed a motion for family access. The motion to modify appears to be still pending in the trial court. The court ruled on Husband's motion for family access, which is the subject of another appeal in this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617659/ | 623 So. 2d 591 (1993)
Denson Emory GRATE, Appellant,
v.
STATE of Florida, Appellee.
No. 92-1982.
District Court of Appeal of Florida, Fifth District.
August 27, 1993.
James B. Gibson, Public Defender, and Susan A. Fagan, Asst. Public Defender, Daytona Beach, for appellant.
*592 Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.
HARRIS, Chief Judge.
Denson Emory Grate challenges certain conditions of his probation and the amount of the public defender fee assessed against him.
Grate was charged with two counts each of unlawful sale and possession of cocaine in two separate cases. Pursuant to a plea agreement, he pled guilty to all counts in exchange for a total sentence of one year of community control followed by two years of probation. The judge accepted the pleas, adjudicated the defendant guilty, and sentenced him on each case as agreed, the two sentences to run concurrent. The judge also imposed numerous conditions on the defendant's probation, among them the following: the defendant cannot enter any bar or liquor lounge without permission from his probation officer; he cannot consume any alcohol whatsoever; and he cannot possess, carry, or own any weapon or firearm without first securing the consent of his probation officer. Appellant was also assessed a lien for a public defender's fee of three hundred dollars and court costs of two hundred and fifty-five dollars.
Defense counsel objected to the probation conditions prohibiting the defendant from entering any bar or from consuming alcohol, arguing that these conditions have nothing to do with the crimes of possession and sale of cocaine. Therefore, defense counsel argued before the trial court and now argues before us that because probation conditions must be reasonably tailored to the crimes involved, these particular conditions were invalid. We agree.
The leading case on this issue is Biller v. State, 618 So. 2d 734 (Fla. 1993), in which the supreme court adopted the following test for determining whether special conditions of probation were valid:
In determining whether a condition of probation is reasonably related to rehabilitation, we believe that a condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. Rodriguez v. State, 378 So.2d at 9.
Id. at 734-35 (quoting Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979)).
In Biller, the defendant was convicted of carrying a concealed firearm, and the trial court imposed alcohol related conditions similar to those in the instant case. The Fourth District Court affirmed these conditions, but the supreme court invalidated them. Applying the Rodriguez test, the court noted that there was nothing connecting the use of alcohol with any of the crimes of which the defendant was convicted, nor was the use of alcohol illegal, nor was there anything in the record indicating the defendant even had a propensity toward alcohol. Therefore, the conditions could not be legally imposed.
The Second District Court recently applied the Rodriguez test to facts similar to ours in Richardson v. State, 620 So. 2d 257 (Fla. 2d DCA 1993). The defendant in Richardson was convicted of possession of cannabis with the intent to sell. Just as in the instant case, the trial court required that the defendant refrain from using alcohol or frequenting places where alcohol is the main source of business as a condition of his probation. On appeal, the Second District concluded that the condition was invalid because it had no relationship to the crime of which the defendant was convicted, related to conduct which was not itself criminal, and prohibited conduct which was not reasonably related to future criminality.
We agree with Richardson that the alcohol related conditions imposed in this case do not bear any relation to these crimes, they prohibit otherwise noncriminal activity, and they forbid behavior which is not reasonably related to future criminality. As such, based on Biller and Richardson, these conditions are stricken.
The defendant also challenges the condition prohibiting him from owning, possessing or carrying a firearm without the consent of his probation officer as an invalid delegation of authority to a probation officer. *593 The State agrees that the consent requirement should be stricken but argues that the remainder of the condition is valid. We agree.
As a convicted felon, the defendant has forfeited his right to own or possess a firearm. See section 790.23(1), Florida Statutes (1991). Therefore, the probation officer cannot override this legislative mandate and grant his consent. See Crawford v. State, 616 So. 2d 1158 (Fla. 2d DCA 1993); Mercer v. State, 604 So. 2d 843 (Fla. 2d DCA 1992); Smith v. State, 396 So. 2d 206 (Fla. 2d DCA 1981).
Grate also challenges the court costs imposed by the trial court in the amount of $255.00 pursuant to section 27.3455(1) and attorney's fees of $300.00 pursuant to section 27.56(1)(a). He claims the attorney's fees should have been reduced by the amount of costs he was also assessed as required by section 27.56(1)(a). This section provides in pertinent part:
Any cost assessed pursuant to this paragraph shall be reduced by any amount assessed against a defendant pursuant to § 27.3455. [Emphasis added.]
Grate argues that, because he was assessed attorney's fees pursuant to the above quoted section, the costs he was assessed pursuant to section 27.3455 should be deducted therefrom. We find this argument to be without merit. It completely ignores the long-recognized distinction between attorney's fees and costs and misconstrues the plain meaning and purpose of these sections.
Sections 27.56 and 27.3455 both provide for the imposition of court costs against a defendant. The provision quoted above merely seeks to ensure that a defendant is not billed twice for costs. Note that it refers only to costs assessed, not attorney's fees. In the instant case, the trial court did not assess any costs pursuant to section 27.56(1)(a), only attorney's fees. Therefore, no reduction of these fees by the amount of costs imposed pursuant to section 27.3455 is required. The trial court's imposition of attorney's fees under one statute and costs under another was perfectly proper and no reduction for duplicate costs is necessary.
AFFIRMED in part; REVERSED in part and REMANDED for further action consistent with this opinion.
COBB and THOMPSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617671/ | 190 S.W.3d 538 (2006)
Andrea MURPHY, Claimant/Appellant,
v.
JUST ROY, INC., and Division of Employment Security, Respondents.
No. ED 87641.
Missouri Court of Appeals, Eastern District, Division Five.
April 25, 2006.
Cynthia A. Quetsch, Jefferson City, MO, for Respondent.
Andrea Murphy, Saint Louis, MO, Claimant/Appellant acting pro se.
Just Roy, Inc., Saint Louis, MO, Respondent acting pro se.
GLENN A. NORTON, C.J.
Claimant Andrea Murphy appeals the decision of the Labor and Industrial Relations Commission (Commission) dismissing her application for review regarding her unemployment benefits. We dismiss her appeal.
A deputy of the Division of Employment Security denied Claimant's application for unemployment benefits, concluding she had left work voluntarily without good cause attributable to her work or employer. Claimant sought review of that decision with the Appeals Tribunal, which dismissed her appeal after she twice failed to participate in a scheduled telephone hearing. Claimant filed an application for review with the Commission, which dismissed her application as untimely. Claimant has now appealed to this Court.
In unemployment matters, the statute provides an aggrieved party with thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Section 288.200.1, RSMo 2000. The statute sets forth no exceptions to the thirty-day requirement. As a result, the failure to file a timely application for review divests the Commission of jurisdiction and it can only dismiss the application for review. Brown v. MOCAP, Inc., 105 S.W.3d 854, 855 (Mo. App. E.D.2003).
The Appeals Tribunal mailed its decision to Claimant on August 1, 2005. Her application for review was due thirty days later, on August 31, 2005. Section *539 288.200.1. Claimant filed her application for review by fax on December 16, 2005, almost four months past the deadline, and it was untimely. Without a timely application for review, the Commission had no jurisdiction over Claimant's case. In addition, this Court's jurisdiction is derived from that of the Commission, and if it does not have jurisdiction, then neither do we. Brown, 105 S.W.3d at 855.
We issued an order directing Claimant to show cause why her appeal should not be dismissed for lack of jurisdiction. In addition, the Division has filed a motion to dismiss her appeal. Claimant has not filed a response, but she did file a brief. In her brief, she acknowledges the motion to dismiss, but asks this Court to address the merits of her appeal. However, no matter the reasons for the lateness of her application for review, its lateness automatically deprives the Commission, and ultimately this Court, of jurisdiction over the merits of her case. Id. The statutes fail to provide any mechanism for allowing an untimely application for review in an unemployment case. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). Our only recourse is to dismiss the appeal.
The Division's motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction.
KATHIANNE KNAUP CRANE, J., and BOOKER T. SHAW, J., concurring. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617693/ | 38 So. 3d 1152 (2010)
STATE of Louisiana in the Interest of T.R., W.R. and P.R.
No. 2009 CJ 2203.
Court of Appeal of Louisiana, First Circuit.
May 13, 2010.
Writ Denied June 30, 2010.
*1153 Sherry Ann Powell, Baton Rouge, Louisiana, for Plaintiff/1st Appellant State of Louisiana Department of Social Services.
Devonna Ponthieu, Denham Springs, Louisiana, for 2nd Appellant L.W.
Kimberly Morgan, Baton Rouge, Louisiana, for Defendant/Appellee W.R.
Before DOWNING, GAIDRY and McCLENDON, JJ.
McCLENDON, J.
This is a proceeding to involuntarily terminate parental rights. The lower court terminated the parental rights of the mother, but did not terminate the parental rights of the father. For the reasons that follow, we affirm in part, reverse in part, and render.
*1154 FACTUAL AND PROCEDURAL HISTORY
On June 1, 2007, the State of Louisiana, Department of Social Services, Office of Community Services (OCS) filed a Petition for Certification for Adoption and Termination of Parental Rights regarding three minor children, T.R., W.R., Jr., and P.R.[1] The mother of the children, L.W., is hospitalized at the Eastern Louisiana Mental Health System, known as the Feliciana Forensic Facility, in Jackson, and the father, W.R., last resided in St. Francisville. In its petition, OCS alleged that the children first entered foster care on February 24, 2005, due to neglect by their father. The trailer in which they were living was in deplorable condition, and they were threatened with eviction. The father refused to move his family to a shelter because he could not take his dogs. The petition further alleges that the children were returned to their father's custody on May 17, 2005, pursuant to an Informal Adjustment Agreement. The children were returned to foster care on August 16, 2005, after the father was arrested for simple battery on T.R. outside the child's school. They have remained in the state's custody since that time. On November 28, 2005, the children were adjudicated children in need of care.
With regard to the mother, OCS alleged that L.W. was arrested for attempted murder in 2000 and, as a result, she was involuntarily committed for an indefinite time to the Feliciana Forensic Facility. L.W. remains committed without a release date. Thus, according to OCS, L.W. is unable to care for her children. OCS further asserted that L.W. understands that she cannot presently care for her children and would like them to remain in foster care. However, OCS contends that this is not an acceptable permanent plan. Further, OCS asserted that because of her confinement, L.W. has not substantially complied with her case plan, and it is unlikely that there will be significant improvement in L.W.'s condition in the near future.
As to the father, OCS sought termination of W.R's parental rights, asserting that he has not substantially complied with the case plans over the course of the case. Specifically, OCS alleged:
1. [W.R.] was ordered to obtain and demonstrate that he maintain safe and stable housing. He was incarcerated from July 2006 until December 2006. He was arrested for cocaine possession. Prior to his arrest he was living rent-free in a friend's storage trailer. Since being released from prison, he has been residing with his mother and this was intended as temporary. [W.R.] has failed to obtain and demonstrate that he can maintain safe and stable housing suitable for his children.
2. [W.R.] was ordered to obtain and maintain stable employment. He now states he is employed but has been unemployed more than he has worked. [W.R.] did not pay the requested $100 child support. In fact, it was learned [W.R.] had continued to receive [W.R., Jr.'s] social security check of $600 per month although [W.R., Jr.] was in the custody of OCS. [W.R.] could have contributed those funds towards the costs of care but he did not.
3. [W.R.] was ordered to remain drug free. On June 8, 2006, he tested positive at court on his drug screen. He was arrested for cocaine possession *1155 in August 2006. [W.R.] failed to schedule a substance abuse evaluation before his arrest. [W.R.] reports keeping two appointments at Capita! Area Center for Addictive Disorders. The case manager was ordered to receive the reports. [W.R.] stopped attending the classes when he started work. [W.R.] has yet to demonstrate that he has remained drug and alcohol free.
4. [W.R.] did participate in a psychological evaluation with Dr. Toldano who recommended: "completion of parenting classes and progress in therapy should be ascertained before consideration is given to returning his children to his care." [W.R.] attended only 1 of 3 sessions at Family Roads for parenting. He only made 7 of 15 sessions of parenting classes held at Discovery. [W.R.] has not completed therapy. Most recently, [W.R.] has engaged in parenting classes/anger management at Discovery.
5. [W.R.] has not been consistent in exercising visitation with [P.R.] and [W.R., Jr.] His visits with [T.R.] were suspended by the Court on the recommendation of her therapist. Most recently, since the Court set the goal as adoption, [W.R.] has been more deliberate in his visits.
6. [W.R.] has not fully complied with his case plan. There is no reasonable expectation of improvement in his compliance in the near future. Based upon his history of substance abuse and incarcerations, the likelihood of reformation is minimal.
The adjudication hearing for the termination of the parental rights of L.W. and W.R. was held on September 24 and 25, 2007. Oral reasons were rendered on October 30, 2007, terminating the parental rights of L.W., but dismissing the petition as to the father, W.R. Judgment was signed in accordance with the ruling on December 7, 2007. OCS and L.W. each appealed.
On appeal, OCS contends that the trial court erred in finding that it had not proven by clear and convincing evidence the grounds for termination of W.R.'s parental rights. In her appeal, L.W. asserts that the trial court erred in finding that OCS had proven by clear and convincing evidence that the grounds for the termination of her parental rights were met.
APPLICABLE LAW
An appellate court reviews a trial court's findings as to whether parental rights should be terminated according to the manifest error standard. State ex rel D.L.R., 08-1541, p. 11 (La.12/12/08), 998 So. 2d 681, 687. The Louisiana Supreme Court has repeatedly expressed its concerns regarding the involuntary termination of parental rights:
In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing these interests, the courts of this state have consistently *1156 found the interest of the child to be paramount over that of the parent.
The State's parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens. The potential loss to the parent is grievous, perhaps more so than the loss of personal freedom caused by incarceration. (Citations omitted.)
State in the Interest of J.A., 99-2905, pp. 7-9 (La.1/12/00), 752 So. 2d 806, 810-11. See also State ex rel D.L.R., 08-1541 at p. 11, 998 So.2d at 687-88; State ex rel. K.G., 02-2886, pp. 4-5 (La.3/18/03), 841 So. 2d 759, 762-63; State ex rel. C.J.K., 00-2375, pp. 7-8 (La.11/28/00), 774 So. 2d 107, 113.
Title X of the Children's Code governs the involuntary termination of parental rights. Article 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. The state need establish only one ground, but the court must also find that the termination is in the best interest of the child. Additionally, the state must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental bond. State in the Interest of J.A., 99-2905 at p. 9, 752 So.2d at 811.
Thus, a court considering a petition to terminate parental rights must make two findings: (1) that OCS established one of the enumerated grounds for termination set forth in LSA-Ch.C. art. 1015 by clear and convincing evidence, and (2) that termination is in the best interest of the child. State ex rel D.L.R., 08-1541 at p. 12, 998 So.2d at 688.
Pertinent to this matter is LSA-Ch.C. art. 1015(5), which provides:
The grounds for termination of parental rights are:
. . .
Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.
Children's Code article 1036 C provides:
C. Under Article 1015(5), lack of parental compliance with a case plan may *1157 be evidenced by one or more of the following:
(1) The parent's failure to attend court-approved scheduled visitations with the child.
(2) The parent's failure to communicate with the child.
(3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
(4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
(5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent's lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
Additionally, LSA-Ch.C. art. 1036 D provides:
Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent's conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.
Termination of W.R,'s Parental Rights
In this appeal, OCS contends that it proved by clear and convincing evidence each and every element required by LSA-Ch.C. art. 1015(5) as to W.R. and that the trial court manifestly erred in its conclusions.
It is undisputed that the children have been in the state's custody since August 16, 2005, a period of more than two years at the time of trial, and thus clearly for more than a year as required by LSA-Ch.C. art. 1015(5).
Numerous case plans were approved over the course of this matter. The case plans set forth the issues that W.R. needed to address: 1) housing, 2) employment, 3) parenting, 4) visits, and 5) substance abuse. OCS argues that there was no evidentiary support for the trial court's conclusion that W.R. substantially complied with the case plans and that the court failed to recognize the overwhelming testimony and evidence presented that W.R. did not substantially comply. Thus, according to OCS, the trial court was clearly wrong. OCS also maintains that the trial court manifestly erred in concluding that OCS did not meet its burden of proof with regard to the third prong, as the evidence clearly showed that there was no reasonable expectation of significant improvement in W.R.'s conduct in the near future.
To establish W.R.'s failure to substantially comply with the case plans and to establish the lack of any reasonable expectation *1158 of significant improvement in his conduct, OCS offered the testimony of several witnesses. Linda Singleton, an OCS child investigator, first testified. She stated that in February 2005 she received a report alleging inadequate shelter regarding W.R.'s home. Upon investigation, Ms. Singleton stated that the home was in deplorable condition. W.R., however, was cooperative and answered all questions. The final findings were inadequate shelter and inadequate food. W.R. initially agreed to participate in all family services requested by OCS, but later became irate and declined any services. Ms. Singleton testified that based on his failure to voluntarily participate, she requested and received a verbal hold order. The children were taken into state custody on February 24, 2005.
Betty Wright, an OCS case manager, testified that she was assigned the case on February 24, 2005. She testified that initially she was not sure where W.R. was living, as he would not give her an address, but she later determined that he moved into a family friend's home in Baton Rouge. W.R. was told to look for housing and employment. He made "sketchy progress" as he was living with a friend and had no stable employment. On May 17, 2005, OCS and W.R. entered into an informal adjustment agreement and the children were returned to his care. The conditions of the agreement were that W.R. would be employed within thirty days; W.R. would find a residence within sixty to ninety days; OCS would provide daycare assistance upon W.R.'s employment; W.R. would take the children to a doctor for examination and provide proof of such; the parents would cooperate with OCS; W.R. and the children would continue to reside at the Baton Rouge address, unless prior notice was given to OCS; and W.R. would comply with visitation by the children with the mother. Ms. Wright testified that W.R. complied with some of the conditions. He was not able to find stable employment, but he found housing. Ms. Wright's involvement with the case ended on June 23, 2005.
Joseph Price, an OCS investigator, testified that he investigated an August 15, 2005 report of physical abuse by W.R. upon T.R. in front of her school. W.R. said he did not hit T.R. Mr. Price testified that the report was validated for the abuse and there was also a finding of neglect because of the condition of the trailer that they were living in. He stated it was not a safe environment for the children. W.R. was arrested and the children were taken into state custody and subsequently adjudicated to be children in need of care.
Henrietta Esedo, a former case manager at OCS, testified that she was assigned the case in August 2005. W.R. was incarcerated, and L.W. was confined in the Feliciana Forensic Facility. On September 9, 2005, an initial family team conference was held and a six-month case plan developed. W.R. was to obtain a safe and stable home, obtain stable employment, maintain contact with the children, learn parenting skills, participate in a psychological evaluation, have a substance abuse evaluation, and maintain contact with OCS. Ms. Esedo testified that in reference to W.R., she arranged for psychological testing with Dr. Toldson, arranged for parenting classes, and provided him information regarding housing and employment. She also testified that she gave him bus tokens and money. She stated that it was hard to make contact with him although he gave her an address. At some point, he gave her a phone number where she could leave a message. Ms. Esedo also had a problem with W.R. complying with the substance abuse evaluation requirement. W.R. missed some of the parenting skills classes and some visitations with the children, and he did not comply with the job search *1159 requirement. Ms. Esedo testified that W.R. always had excuses and stated he was doing the best he could.
A family team conference was held in February 2006, but W.R. was not present as he was incarcerated. The new case plan had additional requirements for W.R., including providing documentation of his job search to include contact persons and telephone numbers and addresses. It also provided that he was to maintain contact with the case manager. Ms. Esedo stated she had difficulty contacting him and was the one "chasing him everywhere to try to meet with him." She testified that it was "a battle" trying to get him to do what he needed to do. Ms. Esedo also stated that there was no move to get a safe and stable home by W.R., even with his employment.
As far as compliance with the February 2006 case plan, Ms. Esedo testified that W.R. missed eight of the fifteen scheduled parenting classes and missed four of sixteen visits with the children. She stated he had yet to supply documentation regarding his job search, nor had he complied with maintaining contact with her. Additionally, he did not follow through with a substance abuse evaluation. Ms. Esedo testified that W.R. was in court for a hearing on June 8, 2006, and a drug test was ordered by the court. After the test came back positive, W.R. told the court that he had already arranged for substance abuse treatment. At a later date, W.R. told her he did not follow through because he did not need it.
Ms. Esedo left OCS in September 2006, at which time it was OCS's recommendation that adoption as a permanent plan was in the best interests of the children.
Janice Coleman is an OCS child welfare specialist who was assigned the case from September 2006 until January 2007. She testified that W.R. was incarcerated for possession of cocaine when she took over the case. The July 24, 2006 case plan by Ms. Esedo was in effect at that time.[2] Ms. Coleman testified that W.R. made very little progress with the case plan primarily because he was incarcerated and not released until December 2006. At that time, he contacted her to arrange a visit with his children and he started to try to comply with the plan. W.R. gave Ms. Coleman his mother's address as his place of residence. She stated they went over the case plan and the things required of W.R. Ms. Coleman testified that W.R. did start to visit his children and attended some parenting classes. She was told by W.R. that he found a job, but he never supplied documentation to verify that he was employed. Ms. Coleman also testified that W.R., Jr. received a $600 per month social security check that would normally go to the state since he was in the state's custody; however, through a mix-up, W.R. continued to receive it for more than a year. At that time W.R. was living in an abandoned trailer and she did not know what he did with the money. Also, as far as Ms. Coleman knew, W.R. never underwent a substance abuse assessment as he said he would. In Ms. Coleman's opinion, the most significant issues were W.R.'s lack of a stable place to live, stable employment, and substance abuse treatment.
Alba Melton-Brown was the OCS foster care worker assigned to this case in March 2007. A family team conference was held on July 26, 2007, and W.R. was not present. The case plan developed at that time *1160 was similar to the last one, with the exception that W.R. had completed parenting classes. At the family visit on September 18, 2007, W.R. reported that he was living at an address on East Mason Street in Baton Rouge. When Ms. Melton-Brown went by the house, being unable to reach W.R. by telephone, the individuals sitting on the porch did not know W.R. by either name he used. In her opinion, the home did not look to be appropriate housing for his children. Ms. Melton-Brown testified that she made contacts regarding low-income housing for W.R., but because of his criminal record she could not find anything for him. Also, W.R.'s mail was being returned from the St. Francisville address even though he said he lived there. Ms. Melton-Brown also testified that on one occasion she asked W.R. about doing a home study at his mother's house, but his mother's home was never offered as a possible placement. When Ms. Melton-Brown called his mother's home, most of the time his mother answered, but W.R. was never there. Ms. Melton-Brown continued to ask for a telephone number where W.R. could be reached. W.R. gave her two different numbers. One number was disconnected and no one knew W.R. at the other number. Ms. Melton-Brown testified that W.R. never asked her for assistance for housing and that she never could actually locate where he was living. She stated that W.R. still had not met the goal of obtaining housing for his children.
W.R. told Ms, Melton-Brown that he was working and she asked him for verification of his employment. W.R. stated he would bring her verification but he never did. In her opinion, he had not achieved the goal of employment. Ms. Melton-Brown believed, however, that he had substantially complied with the case plan with regard to the visits with his children. With her help in locating a center, W.R. underwent a substance abuse assessment on May 4, 2007. He did not follow through with the recommended services. He was discharged from the program due to lack of attendance. When Ms. Melton-Brown asked W.R. about the discharge, he stated that "he was really stressed out" and "going through a lot."
Ms. Melton-Brown summarized that in reviewing the case plan, W.R. still had shown no documentation of employment or income, no documentation of safe and adequate housing, and no documentation of the completion of a substance abuse program. OCS's recommendation was for adoption as "there has not been any significant change in progress."
Dr. Ivory Toldson, an expert in counseling psychology, testified that he assessed W.R. on October 27, 2005, after W.R. was referred to him by OCS. Dr. Toldson testified that W.R. was cooperative in answering his questions, but he was not able to assume any personal responsibility for his circumstances, feeling that he was a victim of wrongful persecution. W.R. reported a desire to father his children and have them in his care. W.R. was aware that his living conditions and capacity to provide revenue for the family were deficient. W.R. wanted OCS to do more to help in those regards. Dr. Toldson stated that he was concerned that W.R.'s initiative in those regards was less than what was expected of an adult male who wished to father his children. He stated that "while the desire seemed to have been there, . . . the effort was more one of seeking help rather than real pro-active looking and searching for ways to remedy his inadequate circumstances to make . . . better provisions for the children." Dr. Toldson stated that from a mental health standpoint, however, that was not considered a mental disorder. What he saw "were lots of feelings of persecution and a lot of blaming externally for his circumstance and . . . certainly a failure to assume any ownership of any *1161 problems that he found himself with." At that time, Dr. Toldson believed that if W.R. could have secured gainful employment and a decent place to live, coupled with his seemingly sincere desire to care for his children, the children could be returned to his care. Substance abuse was not an issue the first time W.R. was interviewed.
Dr. Toldson saw W.R. again on April 5, 2006, when he was asked by OCS to see W.R. and his children together in order to give a more definitive opinion about W.R.'s ability to assume custody of his children. Dr. Toldson testified that there was no change. The children were encouraged to express their feelings about returning to their father's care. The two younger children "were certainly favorable towards that prospect." The oldest child was adamantly opposed, however, and that created a little bit of discord because W.R. "felt that she had been negatively influenced by the foster parents." Dr. Toldson stated that W.R. was defensive and verbally aggressive towards T.R. Dr. Toldson also reported however that W.R. did exhibit positive parenting responses to W.R., Jr., who was having the most difficulty in adjusting. W.R's responses to him were appropriate and demonstrated an ability to exhibit positive parenting responses. Because W.R.'s circumstances had not changed, reunification was still not possible and continued family therapy was recommended. When asked what his prognosis for W.R. would be if he was told that W.R. still had no stable employment or housing at the time of trial, Dr. Toldson responded that it would certainly reduce the level of optimism for a positive conclusion.
Celia Mallad, a licensed social worker and an expert in the field of clinical social work, testified that OCS referred the case to her because of issues with T.R. T.R. was unwilling to see her father, and those visits were suspended. She saw all the children and W.R. Her initial observations were that W.R. had a great interest in his children and the younger two children interacted with him in a positive way. W.R. indicated to her that he was wrongly accused of hitting T.R. During her first contact with W.R. on May 15, 2007, he "was very cooperative with everyone involved and appeared to be meeting expectations." Ms. Mallad's last contact with W.R. was on June 19, 2007. He had finished parenting classes, told her that he was working, but what stood out to her was that he had not yet secured adequate housing. In that last session, W.R. also asked her for some money for gas. By the time of the last visit, Ms. Mallad had some concern because she understood that W.R. was missing family and substance abuse meetings. She believed that W.R. was "perfectly capable" of getting "back on track" for his children "if he really wants to do that." She also stated that the children seemed to be doing well in foster care.
W.R. testified on his behalf. He testified that he was currently doing temporary work. W.R. testified that beginning in 2005, he worked at Georgia Pacific doing contract work and then for Turner building scaffolds. He stated he gave a copy of his check stubs to Ms. Esedo and also to Ms. Brown. He said he also gave a copy of a check stub to the court in February 2007. W.R. stated he was laid off from Turner because his car broke down. He next worked for G.M. Cable out of Central. After G.M. Cable, W.R. testified that he was doing temporary home-repair work for the Browns, friends he met through church. When discussing the incident with T.R., he denied punching her, but said he was arrested the next day and spent about fifteen days in jail. W.R. testified that he was also incarcerated in June 2006 for about six months on a charge of possession *1162 of cocaine. He stated that the case was dismissed. With regard to substance abuse treatment, W.R. stated that Ms. Brown did not give him any information until a few weeks before trial. He stated he did attend some drug treatment until his car broke down. W.R. stated that OCS has done nothing to assist him in finding housing. He testified that he received one list in 2006, but it was for senior citizens. W.R. further stated that he has talked to OCS from the beginning about finding him housing and that it has been his number one priority. W.R. stated he visits his children twice a month and has taken off work to do so. On two or three occasions the children were not present for the visit.
On cross-examination, when asked where his children would stay if they were immediately returned to him, W.R. stated that the only place he could take them would be to his mother's home. He stated he lives in St. Francisvilie, but sometimes stays at the trailer on East Mason Street. He stated it was not a drug house, and when asked if it was in a drug area, he answered by asking, "what place in Baton Rouge ... is not a drug area." W.R. testified that he used to use cocaine because he was stressed but no longer uses it. On cross-examination, W.R. was asked why he did not have a place to live. W.R. responded that "he had a lot of bills to pay" to stay out of jail. Also, he stated that his car broke down and he could not get to scheduled substance abuse treatment appointments. Ms. Mallad had recommended that W.R. participate in a substance abuse program for six consecutive months on a weekly basis. He told her he would do whatever it took to get his children back. When asked if he complied, W.R. stated he did what he could, but admitted that he has not enrolled in any substance abuse since the recommendation was made in July 2007. With regard to foster care, W.R. stated that "[a]ll this is being perpetrated and all of this is a lie because from the beginning, they said I had punched my daughter in the mouth; okay, there's no proof of me punching my daughter."
Regarding why his children were first placed in custody in February 2005, W.R. stated:
There was a problem that occurred. Okay, I whipped my daughter, okay, she was running, she fell over a bed, okay and bruised her leg, okay, so I was talking to an OCS worker and ... I was asking her for help with my children, okay, so my children were at school, okay, so I told her that if I couldn't get no help from OCS, I was going to take my kids and go back to California. Okay, so by the time I went to the school to get my kids, OCS had ... took my kids already. [There] was no problem for them taking my kids from the beginning. There was no problem for them taking my kids the second time.
Also, he stated the house was not in a deplorable condition. After W.R. was evicted from his house and Volunteers of America offered the family shelter, W.R. declined. He explained:
Why I wouldn't go was because that I had two animals, two dogs, which was the kids pets, and the kids loved the pets, ... so I wasn't going to take that from my kids, okay so me, I'm the type of father like this. I provide whatever type of love I can for my kids, okay.
He also explained that the reason he was evicted was because there were holes in the floor and the landlord would not fix the problem. That's why it was deplorable. W.R. also testified that he used W.R., Jr.'s SSI checks to continue to support his children with clothes, VCRs, Play Stations, and bicycles. He gave them money. He testified that the majority of the money went towards the children. When asked why he did not take the $600 per month to *1163 rent a house, W.R. stated that he did not do that because at the time, he "was trying to accommodate them." When explaining his different addresses, W.R. stated that sometimes he stayed in Baton Rouge because of work. He then said that the address on East Mason he gave to OCS was not where he was living, but that he was living down the street. Also the telephone numbers he gave to OCS were contact numbers since the trailer down the street did not have a phone.
The trial court gave its oral ruling on October 30, 2007. With regard to W.R., the court concluded:
Although [W.R.] did not fully comply in every area, one hundred percent, he did make significant efforts and [strides] in all the areas mentioned, such as housing, employment, parenting classes; therefore the second prong of 1015.5 has not been met.... Furthermore, since [W.R.] did make numerous efforts to comply with the case plan, there exists a reasonable expectation of some significant improvement.... Therefore, the third prong of 1015.5 has not been happening.... In the present case, [W.R.] has made substantial compliance with his case plan. Testimony revealed that [W.R.] has been persistent in applying for obtaining services necessary to place him in a position to regain custody of his children.... Thus, as it relates to [W.R.], I find that the state has not met [its] burden of proof by clear and convincing evidence to terminate [W.R.'s] parental rights.
We disagree with the trial court that W.R. had made "significant efforts" and had been "persistent in applying for obtaining services necessary to place him in a position to regain custody of his children." Although the trial court mentioned some compliance with the case plans, this is clearly outweighed by the noncompliance and lack of improvement in the problem areas that caused removal and prevented reunification. The case plans addressed the myriad of problems that needed to be remedied before the children could be returned home, especially the problems with stable housing, stable and verified employment, and substance abuse treatment. These concerns have not been adequately addressed and complied with by W.R. While some improvements may have been made in some areas, such as parenting classes and visitation, significant problems remain. Further, OCS has tried to assist W.R. throughout this process, but the same concerns remain. The conditions that led to the removal of the children persist, despite the passage of more than two years.[3]
Based on the foregoing and after thorough review of the record, we find manifest error in the trial court's conclusion that OCS did not present clear and convincing evidence of grounds for the termination of W.R.'s parental rights. We determine that the trial court manifestly erred in finding that there was substantial parental compliance by W.R. with the case plans. Further, W.R.'s established pattern of behavior evinces a lack of any reasonable expectation of significant improvement in W.R.'s conduct in the near future. W.R. has shown no substantial improvement for more than two years in redressing the problems that prevent reunification with his children. Thus, based on our review of the record, we also find manifest error in the trial court's determination that OCS had not met its burden of proof, by clear and convincing evidence, that there was a lack of any reasonable expectation of significant improvement in W.R.'s conduct in the near future.
*1164 We conclude that the record shows that OCS has sufficiently established one of the enumerated grounds set forth in LSA-Ch.C. art. 1015 for the termination of W.R.'s parental rights. We also conclude that said termination is in the best interests of the children. The children have been in the custody of OCS since August 2005. The testimony established that they are doing well with their current foster families. W.R. states that he loves his children and surely he does. However, his interests are not the standard by which this case must be resolved. The best interests of the children must control the outcome. Moreover, OCS has attempted to work with W.R. for over two years and, as one OCS worker put it, it was always "a battle." There simply has been little improvement and nothing to evidence any likelihood for improvement. Termination of W.R.'s parental rights is in the best interest of the children.
Termination of L.W.'s Parental Rights
With regard to the mother, Dr. Jason Thomas, a staff psychiatrist at Feliciana Forensic Facility and an expert in forensic psychiatry, testified that L.W. was admitted to the hospital in December 2002 and that she has continuously remained there since that time. He stated that L.W. was found not guilty by reason of insanity to a charge of aggravated battery in August 2003. Dr. Thomas testified that he sees L.W. at least one a month and that L.W. has been diagnosed with schizoaffective disorder. She is currently on multiple medications. The latest court review of judicial commitment prepared by Dr. Thomas in August 2007 indicated that L.W.'s treatment response had recently been poor. Dr. Thomas testified to a history of violence, paranoia, and noncompliance with medication. He stated that he was concerned about her current mental status. L.W. was also transferred to a more restrictive unit in June 2007. He further reported that L.W. has limited to poor insight regarding her illness and past actions.
When asked if L.W. could care for her children, Dr. Thomas responded that although he did not assess her in that role, he believed that she was impaired because of her mental illness. Dr. Thomas did find some positives, stating that L.W. currently was taking her medication, recently went on an excursion, and was working as a housekeeper on the unit. Although Dr. Thomas conceded that it was possible that L.W. could be released and go home in less than a year, he also believed that would be very difficult, given her history and current mental state.
The trial court determined that L.W. has been unable to comply with her case plans because of her commitment. The court further found that L.W. had been unable to care for her children for the past seven years and that the testimony at trial indicated that there was no expectation of significant improvement. The court concluded that OCS had met its burden of proof under LSA-Ch.C. art. 1015 and additionally that it was in the best interests of the children to terminate the parental rights of L.W. Based upon our thorough review of the record, we cannot say that the court was clearly wrong in its factual findings as to L.W.
CONCLUSION
Based on the facts and evidence presented, we conclude that it is in the best interests of the children to terminate the parental rights of W.R. and L.W. Accordingly, we reverse that portion of the trial court judgment dismissing OCS's petition to terminate the parental rights of W.R. In all other respects, including the termination of the parental rights of L.W., the judgment is affirmed. Judgment is rendered totally and irrevocably terminating the parental rights of W.R. and certifying *1165 the children, T.R., W.R., Jr., and P.R., free and eligible for adoption. See LSA-Ch.C. art. 1037 F. Costs of this appeal are assessed one-half to W.R. and one-half to L.W.
REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.
DOWNING, J. concurs and assigns reasons.
DOWNING, J., concurs and assigns reasons.
I respectfully concur with the majority opinion out of respect for the opinion of my colleagues. Even so, the trial court was not clearly wrong in finding that grounds do not exist for the termination of W.R.'s parental rights to his children and termination of his rights is contrary to the children's best interest.
Expectation of Improvement
In its petition to terminate W.R.'s parental rights, the Department of Social Services/Office of Community Services stated that W.R.'s parental rights should be terminated pursuant to La. Ch.C. art. 1015(5), which is set out in the majority opinion. I agree with the majority to the extent it concludes that significant efforts do not equate to substantial compliance. But OCS needs to prove more than this. It must also prove by clear and convincing evidence that "there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future[.]"
In this regard, the trial court specifically found that "since [W.R.] did make numerous efforts to comply with the case plan, there exists a reasonable expectation of some significant improvement." In so finding, the trial court credited the testimony that W.R. made efforts to obtain housing, but OCS did not provide requested assistance. Nor did it perform a requested home study of W.R.'s mother's home. The trial court credited W.R.'s testimony regarding his employment and his efforts to remain employed. W.R. participated in psychological evaluations and completed parenting classes. The trial court found that W.R. visited and attempted to visit his children on numerous occasions. Consequently, the trial court found that while W.R. "did not fully comply in every area, one hundred percent, he did make significant efforts and strives in all the areas mentioned, such as housing, employment, parenting classes[.]" Contradictory evidence exists on some of these issues, but the trial court's determinations of credibility and findings of fact should not be reversed on appeal unless they are clearly wrong,[1] which they are not.
In determining that a reasonable expectation of improvement exists, the trial court found that "[i]n addition to his compliance somewhat with his case plan[,] the testimony of Celia Mallard indicated that there was some compliance and there was some hope of reformation. There was some expectation that he will be able to comply." Ms. Mallard is a licensed social worker and an expert in the field of clinical social work referred by OCS who last saw W.R. approximately three months prior to the trial of this matter.
Ms. Mallard's ultimate recommendation was that W.R. be given six months "to prove that he could consistently maintain a job, get back on track with substance abuse and find a place that would be suitable for his family." Her testimony reveals the following:
She met with all three children. She observed that W.R. "had great interest in his children and his children interacted *1166 with him in a positive way." In connection with taking his children back, Ms. Mallard stated: "Initially he appeared to be on target at the time that we met. He wasn't finished...."
Speaking of the times she met with W.R., she continued: "And at that time he pretty much was very cooperative with everyone involved and appeared to be meeting expectations at the time and what I mean by that is that he was involved in the parenting classes offered by Discovery and also at the time, I think he was attending substance abuse sessions at the local church. He also had a job at that time he said and appeared to have one when he showed up for those visits. Ms. Mallard observed that at the time of their last meeting," [t]he only real thing that stood out is the fact that he had not yet secured adequate housing for his children during that last session.
Regarding the children, she stated, "I think [W.R.] tried his best to engage them in conversation and activity, paid a lot of attention to what was going on at school, was it all positive and I felt the kids' behavior uh, was pretty much normal given the length of time of the visit which was an hour, two times it was an hour; I think the last time was abbreviated."
Regarding the oldest child, she recommended that visits be suspended temporarily because of the problems she was having "moving from school to school and from foster home to foster home."
Regarding W.R.'s likelihood of success in achieving the plans set out for him, Ms. Mallard affirmed: "I think [W.R.] is perfectly capable of doing that, if he wantsif he really wants to do that. I don't see anything that would stop him fromfrom doing those things that were required of him."
Despite this prognosis, OCS did not allow W.R. the six months suggested to firm up his compliance with OCS's requirements.
Further, the trial court assessed as good the expectation of W.R.'s reformation. The trial court observed: "A reasonable expectation of your reformation is found to exist if a parent has cooperated with the state officials and has shown some improvement although there are still some problems that exist and this is what we find in [W.R.'s] situation." See In re B.M., 08-0996, p. 8 (La.App. 1 Cir. 10/31/08), 994 So. 2d 156 (Table) (unpublished). This rule is consistent with La. Ch.C. art. 1036(D)(3) as set out in the majority opinion. See Id.
Considering all these factors, together with the trial court's reasonable factual findings and credibility calls, the trial court was not clearly wrong in finding that OCS failed to establish the grounds necessary to terminate W.R.'s parental rights.
Best Interest
Under the particular facts of this case, if grounds for termination were to exist, it is still in the children's best interest for W.R. to retain his parental rights. These children will be 15, 13, and 11 this year. They suffer learning and behavioral deficiencies. How is making orphans of them in their best interest?
The trial court did not rule on best interest of the children since it found that OCS had not proven grounds for termination. None of the parties addressed best interest in their briefs. Even so, in the transcript, OCS suggested no ready or possible adoptive placement for these children. If a loving, stable adoptive home were available, I could possibly consider otherwise. If W.R. were not interested in his children, I could possibly consider otherwise. But the trial court found and the record supports that W.R., though a very imperfect parent, loves and is committed to his children. If the children's lives were disrupted by W.R.'s continued *1167 involvement, I could perhaps consider otherwise, but he has a good relationship with the two younger children. And while the oldest child does not presently want to see her father, nothing in the record suggests that W.R. exacerbates her behavioral problems. He will be there if and when she is ready.
Dismissing OCS's petition to terminate W.R.'s parental rights does not mean that the children are to be returned to him before he is ready to reassume the full responsibilities of parenthood. The children will remain in their two respective foster homes until such time or until they reach the age of majority. OCS can file a new petition for termination of W.R.'s rights if conditions deteriorate and if termination becomes the best interest for the children.
But leaving the children in the foster care system with no parent when they have one committed to them, albeit imperfectly, does not seem to be in their best interest.
NOTES
[1] T.R. was born on September 16, 1995, W.R., Jr. was born on December 5, 1997, and P.R. was born on August 16, 1999.
[2] The July 24, 2006 case plan was approved by the trial court at a permanency hearing held on August 28, 2006. The trial court also determined that the permanent plan that was the most appropriate and in the best interest of the children was adoption. The court further ordered OCS to file a petition for termination of parental rights.
[3] The children first entered foster care on February 24, 2005. The Petition for Certification for Adoption and Termination of Parental Rights was filed on June 1, 2007.
[1] See Stobart v. State, Department of Transportation and Development, 617 So. 2d 880, 883 (La.1993), quoting Canter v. Koehring Co., 283 So. 2d 716, 724 (La. 1973). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617288/ | 38 So. 3d 417 (2010)
In re INTERDICTION OF Mable Sharp DeMARCO.
No. 2009 CA 1791.
Court of Appeal of Louisiana, First Circuit.
April 7, 2010.
*421 Jerald P. Block, Thibodaux, Louisiana, for Defendant/Appellant, Mabel Sharp DeMarco.
Danna E. Schwab, Houma, Louisiana, for Plaintiff/Appellee, Lloyd E. Olsen.
Before DOWNING, GAIDRY, and McCLENDON, JJ.
GAIDRY, J.
An interdict, through her personally-retained counsel, appeals a judgment of full interdiction, and also challenges a judgment awarding her counsel attorney fees and costs in amounts less than billed and requested. For the following reasons, we affirm in part and reverse and render judgment in part.
FACTUAL AND PROCEDURAL HISTORY
Mabel Sharp DeMarco[1] is an elderly resident of the City of Houma in Terrebonne Parish. She was divorced and lived alone in a large, three-story home for many years. She has one child, Cheryl DeMarco Olsen, who lived next door to her. Following Mrs. DeMarco's divorce, her relationship with her daughter deteriorated because of her daughter's closeness to her ex-husband, and she and her daughter gradually became estranged. Mrs. DeMarco came to rely upon friends and neighbors to assist her in managing her finances and property, which included large amounts of cash kept in her home.
On March 27, 2008, Mrs. DeMarco's grandson, Lloyd E. Olsen, Jr., filed a petition for her interdiction. He alleged that she was then 80 years old, did not understand the consequences of her actions, and was unable to make reasoned decisions and to care for herself and her property by reason of senility or dementia. He also alleged a fear that others may have been taking advantage of her and stealing from her. Mr. Olsen sought his appointment as curator and appointment of his mother, Mrs. Olsen, as undercurator.
On April 1, 2008, Mrs. DeMarco executed an "Agreement for Legal Services," retaining the Block Law Firm for the stated purposes of representing and advising her "in connection with an interdiction proceeding." The contract provided that the attorney would be paid $300.00 per hour for his services, and that the services of non-attorney employees would be billed at lesser amounts to be determined by the attorney. Mrs. DeMarco also paid an advance deposit of $10,000.00 toward the fees and expenses.
Following a report of self-neglect initiated by the Terrebonne Parish Sheriffs office, prompted by a mistaken report of burglary at Mrs. DeMarco's home, an emergency certificate pursuant to La. R.S. 28:53 was issued on April 16, 2008 at the request of an investigator for the Governor's Office of Elderly Affairs, and Mrs. DeMarco was hospitalized at Oceans Behavioral Hospital in Broussard, Louisiana from April 17 through April 30, 2008. Upon her discharge from that hospital, Mrs. DeMarco's grandson and daughter placed her in an assisted living facility, Terrebonne House, in Houma.
Mrs. DeMarco, through her retained counsel, filed her answer on May 6, 2008, denying the allegations of her incapacity. *422 She further alleged that since the filing of the petition, she had been moved by Mr. Olsen to Terrebonne House against her will.
On May 20, 2008, Mr. Olsen filed a motion for an expedited trial, and on the same day the trial court signed an order fixing trial for June 3, 2008.
On May 21, 2008, Mr. Olsen filed a motion for temporary interdiction, alleging that because of her dementia, immediate and irreparable injury, loss, or damage would result to Mrs. DeMarco's person or property before a hearing could be held. The motion's allegations were supported by the affidavits of two physicians and Mr. Olsen's counsel. It was further alleged that following the issuance of the emergency certificate and her later placement in an assisted living facility, Mrs. DeMarco's retained counsel "twice removed her from the facility without her families' [sic] consent and against the wishes of the facility." On the same date, the trial court signed a judgment of temporary interdiction, placing Mrs. DeMarco under a temporary full interdiction, fixing a hearing on a preliminary interdiction for June 3, 2008, to be heard contemporaneously with the trial on the merits, and appointing Mr. Olsen and Cheryl Olsen as interim curator and undercurator respectively. The security to be provided by the curator during the temporary interdiction was fixed at $5,000.00, and a bond in that amount, executed by Mr. Olsen and Mrs. Olsen as sureties, was executed and filed on May 22, 2008.
On June 2, 2008, Mrs. DeMarco, through her retained counsel, moved to continue the trial on the merits, alleging that Mr. Olsen had restricted her access to her counsel and that a material witness was unavailable for trial. The trial was continued, and the trial court issued an order maintaining the order of temporary interdiction pending trial.
On September 19, 2008, Mr. Olsen filed a motion for approval of attorney fees and costs. The motion was heard on October 15, 2008 and judgment granting the motion and awarding attorney fees of $9,255.00 and costs of $2,620.63 was signed on October 16, 2008.
After being continued on two more occasions, the trial on the merits was eventually held on October 20, 2008. By the time of trial, Mrs. DeMarco had been placed in another assisted living facility, located closer to her home and that of her daughter. At the conclusion of trial, the trial court ruled that a full interdiction was warranted, and ordered the filing of a detailed descriptive list of Mrs. Demarco's assets pursuant to La. C.C.P. art. 4563(B).
On November 12, 2008, Mrs. DeMarco filed a motion for approval of her retained counsel's attorney fees and costs. On December 16, 2008, Mr. Olsen filed a second motion for approval of attorney fees and costs, and both motions were eventually fixed for hearing on January 9, 2009.
On December 30, 2008, the trial court, on motion of Mr. Olsen as temporary curator, appointed another attorney as counsel for Mrs. DeMarco, in effect discharging Mrs. DeMarco's retained counsel. On that date, the trial court also ruled that Mr. Olsen's counsel was entitled to inspect certain confidential, detailed time records that Mrs. DeMarco's retained counsel had submitted for in camera inspection in connection with her motion for approval of attorney fees and costs. Mrs. DeMarco's counsel immediately applied for supervisory writs to this court.
The trial court signed its final judgment of interdiction, prepared by Mr. Olsen's counsel, on January 14, 2009, ordering a full interdiction of Mrs. DeMarco and appointing *423 Mr. Olsen as her curator. However, that judgment did not fix the amount of the required security to be furnished by the curator. Accordingly, Mr. Olsen submitted a motion to fix the amount of the curator's bond, and the trial court signed an order on January 16, 2009, fixing the bond at $435,000.00. A bond signed by Mr. Olsen and Mrs. Olsen as "sureties in solido" for Mr.Olsen was signed on February 4, 2009 and filed on February 9, 2009.
On March 4, 2009, this court granted the writ application, holding that the record showed that the appointed curator and undercurator had failed to qualify as such and that Mr. Olsen had no authority to discharge Mrs. DeMarco's retained counsel. Accordingly, we vacated the trial court's order appointing the other attorney. We further reversed the trial court's ruling ordering the release of the confidential billing records, and remanded the matter for further proceedings.[2] Following remand, the trial court on March 17, 2009 awarded Mrs. DeMarco's counsel $22,985.00 in attorney fees and $8,726.66 in costs, subject to credit for amounts previously paid, which were sums less than the amounts she had requested. On April 17, 2009, the trial court signed a judgment awarding Mr. Olsen $7,535.00 in attorney fees and $1,313.00 in costs.
Mrs. DeMarco appeals both the final judgment of interdiction and the judgment of March 17, 2009 on her motion for attorney fees and costs.
ASSIGNMENTS OF ERROR
Mrs. DeMarco, through her retained counsel, assigns the following errors on the part of the trial court:
1. Under the circumstances, the district court erred when it signed a proposed judgment that had not been circulated to opposing counsel prior to its presentation to the presiding judge.
2. The district court failed to apply the appropriate burden of proof.
3. The district court erred in ordering a full interdiction, which gave the curator full power over the defendant's assets as well as her living arrangements, when "less restrictive means" were clearly available.
4. The curator is without authority to perform any acts for the defendant since he and the undercuratrix failed to post the required bond.
5. The district court erred when it denied full payment of legitimate and documented attorneys' fees and costs to defendant's counsel.
DISCUSSION
Failure to Comply with Louisiana District Court Rule 9.5
Mrs. DeMarco initially assigns as error the trial court's execution of the final judgment of interdiction, given the failure of Mr. Olsen's counsel to comply with the requirements of Rule 9.5 of the Louisiana District Court Rules. Rule 9.5 provides, in pertinent part, that a proposed judgment submitted to a judge after its rendition must be circulated by the responsible attorney or party to all other attorneys or parties at least three working days before its presentation to the judge, in order to allow the other attorneys or parties to comment upon its content. Such a proposed judgment must also contain a certificate verifying its delivery to the other *424 attorneys or parties and stating whether any opposition was received. It is undisputed that the final judgment of interdiction failed to comply with the requirements described above.
Mrs. DeMarco, through her retained counsel, argues that Mr. Olsen's failure to comply with Rule 9.5 warrants reversal of the judgment of interdiction. Mr. Olsen emphasizes that despite noncompliance with the letter of Rule 9.5, the judgment submitted to and signed by the trial court conformed to its oral ruling and the relevant substantive law.
We agree with Mr. Olsen that the judgment submitted fully comports with the trial court's factual findings and oral reasons. Although we find the failure to comply with Rule 9.5 troubling, particularly in light of its occurrence during Mr. Olsen's unsuccessful attempt to discharge Mrs. DeMarco's counsel of choice, we conclude that the trial court's error constituted harmless error. See Lewis v. ODECO, Inc., 07-0497, pp. 4-6 (La.App. 4th Cir.4/8/09), 12 So. 3d 363, 368-69, writs denied, 09-1386 (La.10/10/09), 19 So. 3d 463, 09-1425 (La.10/16/09), 19 So. 3d 479, cert. denied, ___ U.S. ___, 130 S. Ct. 1705, 176 L. Ed. 2d 183 (2010). This assignment of error has no merit.
Full versus Limited Interdiction and the Burden of Proof
Mrs. DeMarco, through her retained counsel, contends that the trial court committed legal error in not applying the standard of proof by "clear and convincing evidence," and that it was clearly wrong in ordering a full interdiction, rather than ordering less restrictive means of protecting her interests.
A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means. La. C.C. art. 389. Full interdiction is a last resort and, as a result, is warranted only when a person's interests cannot be protected by less restrictive means, such as limited interdiction or a procuration, mandate, or trust. La. C.C. art. 389, Revision Comments 2000, (e).
If a person is consistently unable to make reasoned decisions regarding the care of both his person and his property, or to communicate those decisions, he is a candidate for full interdiction. La. C.C. art. 390, Revision Comments2000, (b). A person is unable to consistently make reasoned decisions if, for example, he suffers from an infirmity that intermittently deprives him of reason. A person who experiences periodic deprivations of reason can inflict substantial harm to himself or his property during such bouts and is a candidate for full interdiction. In short, that a person suffering from an infirmity may experience lucid intervals does not render him ineligible for full interdiction. La. C.C. art. 389, Revision Comments2000, (d).
The petitioner in an interdiction proceeding bears the burden of proof by clear and convincing evidence. La. C.C.P. art. 4548. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. Succession of Fisher, 06-2493, p. 9 (La.App. 1st Cir.9/19/07), 970 So. 2d 1048, 1054.
The trial court may accept or reject, in whole or in part, uncontradicted opinions expressed by an expert as to ultimate facts, based upon the other evidence admitted at trial. See La. State Bar Ass'n v. Carr & Assoc., Inc., 08-2114, p. 17 (La. *425 App. 1st Cir.5/8/09), 15 So. 3d 158, 171, writ denied, 09-1627 (La.10/30/09), 21 So. 3d 292, and Harris v. State ex rel. Dep't of Transp. & Dev., 07-1566, p. 25 (La.App. 1st Cir. 11/10/08), 997 So. 2d 849, 866, writ denied, 08-2886 (La.2/6/09), 999 So. 2d 785.
Samir Salama, M.D. attended Mrs. DeMarco during her hospitalization and evaluation at Oceans Behavioral Hospital. His affidavit and the certified hospital records were introduced into evidence at trial. In his affidavit, Dr. Salama attested that Mrs. DeMarco was suffering from "[m]ajor depression, recurrent severe, with psychotic features and dementia, early stages." He confirmed that she was "unable consistently to make reasoned decisions regarding the care of her person or property, or any aspect of either," and that she required supervision regarding "taking medication, eating, bathing, and all aspects of daily activities." Dr. Salama further stated that Mrs. DeMarco required "24 hour nursing supervision." Although the hospital records document significant improvement in Mrs. DeMarco's functional abilities by the time of her discharge, such improvement was clearly attributable to the hospital environment, and Dr. Salama's discharge prognosis for her was "poor."
Russell Henry, M.D., a specialist in internal medicine, was Mrs. DeMarco's treating physician, and testified at trial. His testimony documented Mrs. DeMarco's noncompliance with medical advice in 2007, as well as the fact that she was utilizing the services of sitters at home at that time. Dr. Henry also treated her following her discharge from Oceans Behavioral Hospital, and his diagnosis of her condition concurred with that of Dr. Salama. He also expressed the opinion that Mrs. DeMarco was actively trying to conceal her dementia. As of the time of trial, he felt that she would not be able to cook for herself, bathe herself, manage her personal finances, live alone, or consistently make reasonable decisions regarding her personal care. On cross-examination, Dr. Henry admitted that Mrs. DeMarco's dementia was in its early stages and could not be characterized as "profound," but he emphasized that, in his opinion, she was "profoundly disabled." He conceded that if she had 24-hour sitters capable of managing her meals, health needs, and personal finances, she could live at home rather than in an assisted living facility.
Mrs. DeMarco, through her retained counsel, contends that the trial court erred in not allowing her to remain in her home with sitters, rather than allowing her to be placed by Mr. Olsen in an assisted living facility, as her treating physician did not preclude such an arrangement in his testimony. We disagree. The issue of whether alternate, less-restrictive living arrangements, consistent with an interdict's expressed desire for some independence, might be medically and economically feasible or possible is not ultimately conclusive as to the issue of whether full or limited interdiction is appropriate.
We note that former La. C.C.P. art. 4555 authorized the trial court to "order that an interdict be attended in his own home, in a hospital, or in any other place, within or without the state, taking into consideration the nature of his incapacity and the value of his property." But the foregoing language was in effect repealed, being omitted from the reenactment of the codal articles on interdiction effective July 1, 2001. Acts 2000, 1st Ex. Sess., No. 25, § 3. Now, when a full interdiction is ordered, the law leaves the decision as to the interdict's living arrangements to the curator, and the trial court is not required to make any decision regarding such arrangements. See La. C.C.P. arts. 4566(A) and 4569.
*426 Dr. Henry's expert medical testimony regarding the ultimate issue of whether full interdiction was warranted was unequivocal and corroborated by the other medical evidence. The trial court in its oral reasons expressly accepted that testimony. The determination of whether to order interdiction is a factual finding, which cannot be set aside in the absence of manifest error or a clearly wrong determination. State ex rel. Smith, 38,912, p. 6 (La.App. 2nd Cir.3/3/04), 867 So. 2d 890, 894. As there are two permissible views of the evidence, requiring an assessment of the credibility of the witnesses and the weighing of the evidence, the trial court's determination is entitled to deference and cannot be considered manifestly erroneous. See Stobart v. State through Dept. of Tramp, and Dev., 617 So. 2d 880, 883 (La. 1993). In short, the evidence introduced at trial meets the requisite standard of being clear and convincing, and fully supports the trial court's determination that full interdiction of Mrs. DeMarco was appropriate. That the trial court did not specifically address the burden of proof by clear and convincing evidence in its oral reasons does not warrant reversal, as we find that the burden was in fact met by Mr. Olsen. These assignments of error also have no merit.
Attorney Fees and Costs of the Interdict's Retained Counsel
Louisiana Code of Civil Procedure article 4550 provides that "[t]he court may render judgment for costs and attorney fees, or any part thereof, against any party, as the court may consider fair." We interpret the term "fair" as synonymous with "reasonable," the usual standard employed by our courts in considering attorney fees. See Merriam-Webster's Collegiate Dictionary 1037 (11th ed.2008).
The billing statements provided by Mrs. DeMarco's counsel evidence that he charged her for 130.9 hours of his time, at $300.00 per hour, and 39.8 hours at $75.00 per hour for the law firm's nurse-paralegal.[3] Examining the detailed time records and fee amounts documented in the record, it is apparent that the trial court most likely fixed the total fee for attorney time at $23,000.00, and accepted the nurse-paralegal's time at $2,985.00 as billed, for a total attorney fee of $25,985.00.[4]
A full interdict lacks capacity to make a juridical act, such as a contract, but a juridical act by an interdict is a relative nullity. La. C.C. art. 395, Revision Comments 2000, (b), (d). Interdiction does not affect the validity of a juridical act made by the interdict prior to the effective date of interdiction. La. C.C. art. 394. A judgment of interdiction has effect retroactive to the date of the filing of the petition for interdiction. La. C.C. art. 396. Here, Mrs. DeMarco did not retain counsel to contest her interdiction until after the petition for interdiction was filed and served upon her. Thus, the contract for legal services between Mrs. DeMarco and her retained counsel was executed after the effective date of her interdiction. It is necessary for us to consider whether the contract was valid and had legal effect under these circumstances.
The presumption is that all persons have the capacity to contract, except unemancipated minors, interdicts, and persons deprived *427 of reason at the time of contracting. La. C.C. art. 1918; Florida v. Stokes, 05-2004, pp. 6-7 (La.App. 1st Cir.9/20/06), 944 So. 2d 598, 603. A contract made by a person without legal capacity is relatively null and may be rescinded only at the request of that person or his legal representative. La. C.C. art. 1919. A noninterdicted person, who was deprived of reason at the time of contracting, may obtain rescission of an onerous contract upon the ground of incapacity only upon showing that the other party knew or should have known that person's incapacity. La. C.C. art. 1925. In this case, neither Mrs. DeMarco nor Mr. Olsen has ever instituted a separate action to rescind her retained counsel's contract for legal services.
If read literally, La. C.C. art. 396 would have the potential effect of invalidating any contract between an interdict and an attorney by which the interdict sought legal representation to respond to a petition for interdiction, if a judgment of interdiction is later rendered. Such an interpretation obviously might have a deterring effect upon the efforts of a defendant in an interdiction proceeding to obtain representation to contest interdiction, and would run counter to the longstanding law of our state mandating legal representation of defendants in interdiction proceedings. That a defendant in an interdiction proceeding has the right to retain his own attorney of choice is confirmed by reference to the pertinent codal articles. See La. C.C.P. arts. 4544 and 4549(C). Thus, the mere fact that the defendant in an interdiction action retains counsel subsequent to its filing date, the retroactive date of a judgment of interdiction, does not of itself operate to nullify the attorney-client agreement.
Courts are vested with the responsibility of both monitoring and analyzing the attorney-client relationship, even when it is based on a written contract between the parties. Gold, Weems, Bruser, Sues & Rundell v. Granger, 06-859, p. 3 (La.App. 3rd Cir.12/29/06), 947 So. 2d 835, 839, writ denied, 07-0421 (La.4/27/07), 955 So. 2d 687. However, that responsibility must be tempered with restraint, especially when the parties have signed a contract that memorializes the terms of their agreed-upon relationship. Id., 06-859 at p. 6, 947 So.2d at 841. The courts should not be in the business of setting fees. Drury v. Fawer, 590 So. 2d 808, 810 (La.App. 4th Cir.1991), writ denied, 592 So. 2d 1304 (La. 1992). A reduction in attorney fees must be predicated upon a factual finding that the excessive fee amount was never earned. See Drury, 590 So.2d at 811. Otherwise, absent a showing that the fee charged was clearly excessive, a contractual relationship between an attorney and client should not be altered. Salsbury v. Salsbury, 27,062, p. 6 (La.App. 2nd Cir.6/21/95), 658 So. 2d 734, 738-39. That is, unless the provisions of an attorney-client contract produce an excessive, unearned, or incommensurate fee according to the factors set forth in Rule 1.5(a) of the Louisiana State Bar Association Rules of Professional Conduct, the fee charged must be considered reasonable and enforceable. See Moody v. Arabie, 498 So. 2d 1081, 1083 (La.1986).
While a court has considerable discretion in fixing a reasonable attorney fee, such discretion is not unbridled, and cannot be exercised to invalidate or modify an otherwise reasonable fee charged pursuant to a valid contract for legal services between consenting parties. In other words, a court does not possess the discretion to alter an attorney fee that is not clearly excessive on the grounds that it considers a lesser fee as more "reasonable" or "fair." It must first be demonstrated by a preponderance of the evidence *428 that an attorney fee is not reasonable, or clearly excessive, before a court may exercise its discretion in fixing a reasonable fee under the circumstances. Accordingly, an appellate court must use the "clearly wrong" or "manifestly erroneous" standard of review in considering a trial court's factual findings relating to the reasonableness of a contractual attorney fee. Teche Bank & Trust Co. v. Willis, 93-732, p. 5 (La.App. 3rd Cir.2/2/94), 631 So. 2d 644, 647. The "abuse of discretion" standard of review would apply to appellate review of an amount awarded by a trial court as a reasonable fee after a finding that a contractual fee was clearly excessive, or an amount awarded pursuant to statutory authority. Id.
At the hearings on the motion for approval of attorney fees, Mr. Olsen's counsel argued that a bill for attorney fees and costs of over $50,000.00 for representation of the defendant in a "simple" interdiction was "excessive," and that the attorney-client contract between Mrs. DeMarco and her counsel should be "thrown out" on the grounds that "$300.00 is not the customary [hourly] rate here." But no actual testimony or other evidence on "the fee customarily charged in the locality for similar legal services" was presented at the hearing.[5] Mr. Olsen's counsel emphasizes the facts that the hourly rate charged by Mrs. DeMarco's counsel was twice that charged to Mr. Olsen, and that the total bill for fees and expenses was over three times that charged by and awarded to his counsel. We find such a comparison unpersuasive. The separate attorney fee arrangement of one party in litigation, while arguably relevant to some limited extent in some cases, does not constitute a benchmark for judicial determination of the reasonableness or excessiveness of the opposing party's attorney fee, as there are numerous subjective factors (such as an attorney's skill, experience, and reputation) that may make such a comparison unfair.
Mr. Olsen contends that the failure of Mrs. DeMarco's counsel to call as a witness at trial a neuropsychologist retained to examine Mrs. DeMarco bears upon the value of his services to his client. While Mrs. DeMarco's counsel evidently made a tactical decision not to call the examining neuropsychologist, that decision does not mean that his efforts to arrange the examination were not undertaken with his client's best interests in mind, consistent with her expressed wishes and competent legal representation.
Based upon our careful review of the evidence relating to the issue of the attorney fees, weighed in light of the relevant factors bearing upon their reasonableness, we conclude that the trial court was clearly wrong in determining that the fees and expenses billed by Mrs. DeMarco's retained counsel were not earned or were clearly excessive under the terms of the contract for legal services. The professional experience, skill, and other qualifications of Mrs. DeMarco's retained counsel were not seriously challenged, and the legal services provided are documented in detail in the law firm's billing statement and time records and supported by the evidence and the record of this matter. We accordingly reverse the judgment reducing the billed attorney fee and awarding a reduced fee of $25,985.00 and costs and expenses of $8,726.66, and render judgment awarding Mrs. DeMarco's retained counsel the full amount of $42,255.00 for attorney fees and $9,408.77 for costs and expenses as provided by the contract for legal services.
*429 Qualification of Curator and Undercurator
This issue does not relate to any factual or legal error in the judgments appealed, and was not presented to the trial court for determination. Our jurisprudence has a longstanding general rule that issues not submitted to the trial court for decision will not be considered for the first time on appeal. ASP Enterprises, Inc. v. Guillory, 08-2235, p. 9 (La.App. 1st Cir.9/11/09), 22 So. 3d 964, 971, writ denied, 09-2464 (La.1/29/10), 25 So. 3d 834. See also Uniform Rules of Louisiana Courts of Appeal, Rule 1-3. However, because of the importance and indirect relevance of this issue to other issues in this appeal, and because we addressed it in our prior writ decision,[6] we conclude that the interest of justice requires us to address it again.
The duties and powers of a curator commence upon his qualification. La. C.C. art. 392. Louisiana Code of Civil Procedure article 4562(A) provides that "[t]he person appointed qualifies as curator upon furnishing the security required by law and taking an oath to discharge faithfully the duties of his office." If the person appointed as curator fails to so qualify within ten days of his appointment, the court may revoke the appointment, unless the court extends the delay period. La. C.C.P. art. 4562(B). The person appointed as curator is required to furnish security. La. C.C.P. art. 4563(A). The person appointed as undercurator, on the other hand, is not required to furnish security, and qualifies upon taking an oath. La. C.C.P. art. 4565(A)(1).
The security provided by the curator must be in the form of a bond of the same nature as that required of a minor's tutor under La. C.C.P. art. 4132(A). La. C.C.P. art. 4563(A). Three forms of bond are permitted: (1) a bond secured by an authorized surety company; (2) a bond secured by government bonds, insured certificates of deposit in financial institutions, or shares of insured building or loan or homestead associations; or (3) a bond secured by at least two personal sureties signing in solido, each owning unencumbered property in excess of the required amount. La. C.C.P. art. 4132(A).
Mr. Olsen filed a "Bond for Curator Secured by Two Sureties" on February 9, 2009. In that bond, as well as in his prior bond as temporary or interim curator, Mr. Olsen is described in the dual capacity of "curator" (principal) and surety. As "sureties in solido" Mr. Olsen as "surety" and Mrs. Olsen as "surety" agree to "be liable for any financial harm occasioned by Mable [sic] Sharp DeMarco as per LSA-C.C.P. Art. 4132 A(3)" and for "any liability that Lloyd E, Olsen, Jr. may incur in favor of Mable [sic] Sharp DeMarco on account of his duties as curator."
Suretyship is an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so. La. C.C. art. 3035. (Emphasis added.) A legal suretyship is one given pursuant to legislation, administrative act or regulation, or court order. La. C.C. art. 3043.
Mrs. DeMarco, through her retained counsel, emphasizes that a principal may not properly act as surety for his own obligation. She is, of course, correct on that point. By definition, a surety is an accessory, contingent obligor bound to satisfy *430 his principal's primary obligation in the event the principal fails to do so.[7] The legal concept of suretyship contemplates two distinct persons, the principal obligor and the accessory obligor or surety. A principal cannot serve as surety for his own obligation. See Bayne v. Cusimano, 50 La.Ann. 361, 365-66, 23 So. 361, 363 (La.1897), and Franco v. Franco, 04-0967, p. 11 (La.App. 4th Cir.7/28/04), 881 So. 2d 131, 138.[8]
As Mr. Olsen cannot legally serve as surety for himself, the curator's bonds had only one surety, Mrs. Olsen. Thus, the bonds filed by Mr. Olsen plainly did not comply with the requirements of La. C.C.P. arts. 4132(A)(3) and 4563(A), and he never legally qualified as either temporary curator or curator. The question then becomes, what is the effect of those omissions?
A factual finding that interdiction is warranted is not predicated upon the qualification of a curator, although a curator must be appointed as part of the judgment of interdiction. See La. C.C.P. art. 4551(A).[9] In summary, we conclude that the failure of Mr. Olsen to properly qualify as curator following the judgment of interdiction does not of itself affect the trial court's factual finding that full interdiction was warranted or its judgment of interdiction. However, we further conclude that Mr. Olsen's threshold failure to qualify as curator deprived him of legal standing to challenge or oppose the claim of Mrs. DeMarco's retained counsel for attorney fees and costs under the contract for legal services. Thus, to the extent that the trial court considered Mr. Olsen's arguments relating to the issues of Mrs. DeMarco's attorney fees billed by her counsel, it may have committed legal error.[10]
Damages for Frivolous Appeal
Mr. Olsen characterizes this appeal as a "frivolous appeal," and by brief seeks an award of attorney fees and costs (presumably against opposing counsel) under La. C.C.P. art. 2164 and Rule 2-19 of the Uniform Rules of Louisiana Courts of Appeal. But we note that he did not answer the appeal or file an independent appeal to properly seek such damages. See La. C.C.P. art. 2133 and Jackson Nat'l Life Ins. Co. v. Kennedy-Fagan, 03-0054, pp. 10-11 (La.App. 1st Cir.2/6/04), 873 So. 2d 44, 51, writ denied, 04-0600 (La.4/23/04), 870 So. 2d 307. Accordingly, *431 such damages would not be procedurally recoverable even if we were to hold that the appeal is frivolous.
Additionally, and more importantly, because Mr. Olsen did not properly qualify as curator, he has no right of action to seek damages for frivolous appeal as curator acting on behalf of Mrs. DeMarco's estate. We accordingly raise and sustain sua sponte the peremptory exception's objection of no right of action as to such claim. It is therefore unnecessary for us to address the merits (or lack thereof) of the claim for damages for frivolous appeal.
Discourteous Language in Appellate Brief
On one page of Mr. Olsen's brief, addressing the issue of attorney fees and expenses, the following statements appear:
It seems that, in essence, Mrs. DeMarco's Appeals Counsel [sic] is complaining that the "reduced" attorney fee was "not fair." ... However, Appellee submits that what is not fair is an attorney taking advantage of a woman whose dementia, according to her treating physician, ... was "obvious" by November 11, 2007. What is not fair is convincing Mrs. DeMarco to sign a contract for legal services at the rate of $300.00 per hour, double that charged by Appellee's counsel.... What is not fair is the manner in which [Mrs.] DeMarco's Appeals Counsel [sic] insinuated himself into these proceedings. ... What is not fair is his continuing insinuation into an otherwise private and painful family situation which requires the expenditure of additional attorney's fees for what amounts to a frivolous appeal. What is not fair the perfidy to the legal profession and the appearance greed and avarice. [sic]
(Emphasis added.)
In her reply brief, Mrs. DeMarco's counsel objects to the foregoing language as violative of Rule 2-12.4 of the Uniform Rules of the Louisiana Courts of Appeal, relating to the form and general content of appellate briefs. In pertinent part, Rule 2-12.4 provides:
The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Rule shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.
Even in its incomplete and ungrammatical state, the last emphasized sentence is strongly suggestive of unethical or unprofessional conduct and dishonesty and disloyalty to a client on the part of Mrs. DeMarco's retained counsel.[11]See, e.g., Malevitis v. Friedman, 323 Ill. App. 3d 1129, 1132, 753 N.E.2d 404, 407, 257 Ill. Dec. 209, 212 (Ill.App.2001). The use of such language is unnecessary, unsupported by the evidence in the record, and adds nothing substantive to the argument on the issue.
The accusations of Mrs. DeMarco's counsel's "continuing insinuation into an otherwise private and painful family situation" appear to be based, at least in part, upon his attempts to meet privately with his client outside the confines of the first assisted living facility into which she had *432 been placed by Mr. Olsen. In that regard, we observe that La. C.C.P. art. 4544(B) imposes the following affirmative duties upon an attorney representing the defendant in an interdiction action, in addition to the general professional duties imposed by the Rules of Professional Conduct:
The attorney representing a defendant shall personally visit the defendant unless such visit is excused by the court for good cause. To the extent possible, the attorney shall discuss with the defendant the allegations in the petition, the relevant facts and law, and the rights and options of the defendant regarding the disposition of the case. Failure of the attorney to perform any of the duties imposed by this Paragraph shall not affect the validity of the proceeding, but may subject the attorney to sanctions.
Like many interdiction cases, the present case involves painful decisions and conflicting interests relating to the health, safety, and personal dignity of a human being afflicted with a tragic debilitating condition. But there is nothing in the record that convincingly supports the sinister and devious motives attributed to Mrs. DeMarco's counsel by Mr. Olsen, as opposed to legitimate attempts to comply with his obligations to defend his client and advance her expressed wishes as he understood them.
Despite the increased emphasis on professionalism implemented by the bench and bar in the last two decades, we regret to say that all too often its precepts appear to be more honored in their breach than in their observance. We have always been reluctant to impose sanctions upon counsel under this rule unless its violation is clear and unmistakable. We also recognize the emotional context inherent in contested interdiction proceedings. Nevertheless, we consider it necessary and appropriate to strike the offensive language from Mr. Olsen's brief and to incorporate in this opinion this formal admonishment of his counsel for such ill-considered and inappropriate assertions, which at the very least implicitly disparage (if not openly impugn) opposing counsel's professional character. See Stroscher v. Stroscher, 01-2769, pp. 9-11 (La.App. 1st Cir.2/14/03), 845 So. 2d 518, 527-28. We exercise our discretion and will not hold counsel in contempt.
DECREE
The trial court's judgment of January 14, 2009, ordering a full interdiction of the defendant-appellant. Mabel Sharp DeMarco, is affirmed. The trial court's judgment of March 17, 2009 is reversed, and judgment is rendered in favor of the defendant-appellant, Mabel Sharp DeMarco, and her attorney, the Block Law Firm, awarding the sums of $42,255.00 for attorney fees and $9,408.77 for costs and expenses, subject to credit for amounts already paid. The purported claim for damages for frivolous appeal of the plaintiff-appellee, Lloyd E. Olsen, Jr., is dismissed by sustaining a peremptory exception of no right of action. The offensive language contained in the plaintiff-appellee's brief, quoted herein, is ordered stricken from the brief, and counsel for the plaintiff-appellee is formally admonished as a sanction for use of such language. All costs of this appeal are assessed to the plaintiff-appellee.
AFFIRMED IN PART; REVERSED AND RENDERED IN PART; EXCEPTION OF NO RIGHT OF ACTION SUSTAINED SUA SPONTE AS TO APPELLEE'S CLAIM FOR FRIVOLOUS APPEAL.
DOWNING, J., concurs.
NOTES
[1] Mrs. DeMarco's first name was misspelled in the petition and its caption.
[2] In re Interdiction of DeMarco, 2009 CW 0193 (La.App. 1st Cir.3/4/09) (unpublished writ disposition).
[3] With client consent and where the lawyer's fee is based on an hourly rate, a reasonable charge for paralegal services may be chargeable to the client. Louisiana State Bar Association Rules of Professional Conduct, Rule 1.8(e)(3).
[4] Assuming that the trial court found the time of 130.9 hours to be accurate, the hourly rate for attorney time was reduced to slightly over $175.00.
[5] See Louisiana State Bar Association Rules of Professional Conduct, Rule 1.5(a)(3).
[6] From our reading of the prior writ application decision, we cannot determine whether that bond was omitted from the record of the writ application, or whether our decision was predicated upon the apparent absence of the curator's oath or a substantive defect of the bond.
[7] The definition of "surety" in Louisiana is not the same as that of the common law. Rather, "surety" under our law is essentially synonymous with "guarantor" under the common law. See Black's Law Dictionary 724, 1482 (8th ed.2004).
[8] As succinctly stated by the court in Franco, the absence of a specific prohibition in our law against a principal obligor acting as his own surety "is intentional as such a right to collect from a [principal obligor] is already guaranteed by law and the additional personal guarantee would add nothing[.]" Franco, 04-0967 at p. 11, 881 So.2d at 138. In other words, "there is no specific prohibition against one acting as one's own surety on a judicial bond because it is too obvious to need stating." Id.
[9] Louisiana Code of Civil Procedure article 4541(A) provides that "any person," not only a relative, may file a petition for interdiction, but the petitioner must state his relationship to the defendant "with particularity" and must verify the petition. The final judgment of interdiction of January 14, 2009 specifically provided that "[t]he powers of the curator commence only upon qualification," as required by La. C.C.P. art. 4551(A)(3).
[10] Mrs. DeMarco urges us to declare all actions taken by Mr. Olsen subsequent to the judgment of interdiction to be null and of no legal effect, and to rescind the issuance of letters of curatorship and undercuratorship. We decline, as those issues are not properly before us at this time, and should properly be addressed first by the trial court. See La. C.C.P. arts. 4553, 4554, 4568, and 4569(B).
[11] "Perfidy" is generally defined as "the quality or state of being faithless or disloyal" or "treachery," or "an act or instance of disloyalty." Merriam-Webster's Collegiate Dictionary 920 (11th ed.2008). Disloyalty to a client is one of the most serious ethical lapses of which an attorney may be accused. See, e.g., La. State Bar Ass'n v. Wilkinson, 562 So. 2d 902, 907-09 (La. 1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617357/ | 38 So. 3d 1174 (2010)
Michael MARTIN
v.
Wade MARTIN and Maria Martin.
No. 2009 CA 1960.
Court of Appeal of Louisiana, First Circuit.
May 26, 2010.
*1175 Michael S. Zerlin, Melissa LeBlanc, Thibodaux, Louisiana, for Defendant/Appellant Maria Blackburn Martin.
Scotty E. Chabert, Sr., Cut Off, Louisiana, for Plaintiff/Appellee Michael Martin.
Before DOWNING, GAIDRY, and McCLENDON, JJ.
GAIDRY, J.
This matter arises from personal loans and guarantees made by a father for the benefit of his son, then a resident of Mississippi. Following the son's divorce in Louisiana, the father sued his son and former daughter-in-law for the amounts due for the unpaid loans and guarantees. The trial court rendered judgment against his son and former daughter-in-law, finding them solidarily liable for the debt, which the court held was a community obligation. The former daughter-in-law appeals the judgment. For the following reasons, we amend the trial court's judgment and affirm it as amended.
FACTUAL AND PROCEDURAL BACKGROUND
Wade Martin, a Louisiana native, and Maria Blackburn Martin (appellant), a Mississippi native, were married on June 15, 1999 in Tylertown, Mississippi and subsequently established their matrimonial domicile there. While residing in Mississippi, Wade Martin decided to start a trucking business. On September 5, 2002, he borrowed $25,700.00 for the purchase of a truck and other associated expenses from State Bank and Trust Company of Golden Meadow, Louisiana. Wade Martin executed a promissory note in favor of the bank, and the loan was secured by money belonging to his father, Michael Martin (appellee), on deposit at the bank in an account under the names of Michael Martin's parents.[1] Because of the need for additional funds for engine repairs, the *1176 loan was modified, or a novation was agreed upon, whereby the note was cancelled and a new note evidencing a loan for the original amount and an additional $7,253.99 was executed by Wade Martin on September 23, 2002, again with his father's money on deposit used as collateral. Shortly thereafter, appellee made a personal cash loan to Wade Martin in the amount of $13,846.01 for additional business startup expenses. The total of the amounts borrowed was $46,800.00.
Mr. and Mrs. Martin later moved to Lafourche Parish in this state in December 2003 and established their domicile there. The couple separated in May 2005, and they were divorced by judgment of the 17th Judicial District Court for the Parish of Lafourche on February 2, 2006.
It is undisputed that Wade Martin failed to make any payment on the bank loans or on the personal loan from his father. As the result of Wade Martin's default, his father's funds serving as collateral were seized by the bank. After sending an initial demand letter seeking an overdue balance of $39,629.25 on November 14, 2005, appellee sent another demand letter on February 6, 2006, demanding the sum of $47,500.00 from both Wade Martin and appellant, Wade Martin's ex-wife.
On June 1, 2006, appellee filed suit against Wade Martin and appellant seeking recovery of the sum of $47,500.00 allegedly due him for the loans made by Wade Martin. On June 15, 2006, appellant filed her answer, denying the allegations and her liability to appellee. Wade Martin, then residing in Alabama, filed an answer on October 23, 2006, admitting the allegations and that he and appellant owed the debt.
In December 2006, Wade Martin and appellant agreed to a "Settlement of Community Property," or extrajudicial partition, wherein they partitioned various assets and liabilities between them, with the exception of the obligation forming the basis of the present action. In that regard, the settlement provided:
The parties acknowledge that the issue of community indebtedness allegedly due Michael Martin for monies allegedly loaned by him during the existence of the community for general and/or business purposes of the parties is being litigated in that matter entitled "Michael Martin v. Wade Martin and Maria Martin", No. 103787, 17th JDC, Parish of Lafourche. The parties further agree that they will defer any apportionment between them of responsibility for this alleged debt to that cause of action, such that the issue of whether the debt is due, in what amount, and in what proportion, shall be determined in that suit.
Appellee, as a third party, was not a party to the foregoing agreement.
A bench trial was conducted on April 6, 2009 and July 8, 2009. At the conclusion of the trial, and following closing argument, the trial court issued its oral reasons and ruling. In its oral reasons, the trial court concluded that "the parties by consent agreement have thrust the issue of [the character] of that debt onto this court" and that the debt was a "community debt," because "it clearly was done during the community." The trial court accordingly ruled that both Wade Martin and appellant were liable in solido to appellee. The trial court's judgment in accordance with its ruling was signed on July 9, 2009.
Appellant now appeals the judgment finding her liable to appellee.
ASSIGNMENTS OF ERROR
We paraphrase appellant's assignments as follows:
1. The trial court committed legal error in failing to apply conflict of laws principles *1177 and the law of Mississippi in determining the character of the debt at issue, in that the debt was incurred while Wade Martin and appellant were domiciled in Mississippi and before they established their community of acquets and gains in Louisiana; and
2. Even if Louisiana law applied to determine the character of the debt, the trial court committed manifest error in finding that the debt was a community obligation, rather than a separate obligation of Wade Martin, and in finding appellant solidarily liable for the debt.
ANALYSIS
The legal regime of community of acquets and gains applies to spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage. La. C.C. art. 2334. Thus, despite the fact that they were married and initially resided in Mississippi, Mr. and Mrs. Martin's matrimonial regime became one of community property upon their establishing their domicile in this state in December 2003.
An obligation incurred by a spouse prior to the establishment of a community property regime is a separate obligation. La. C.C. art. 2363. But we emphasize that this general rule of law applies only with regard to a debt incurred by a spouse subject to the Louisiana law of matrimonial regimes; it does not, and cannot, regulate the character of the debt as between spouses domiciled in another state.
Appellant cites La. C.C. art. 3523 for the principle that "the rights and obligations of spouses with regard to movables, wherever situated, acquired by either spouse during marriage are governed by the law of the domicile of the acquiring spouse at the time of acquisition." This rule by its terms applies only to the respective rights of spouses to movable assets, rather than liabilities, vis-a-vis each other. The nature and terms of any obligation owed to appellee by Wade Martin and appellant must instead be determined by reference to other codal articles governing conflict or choice of laws.
Louisiana Civil Code article 3537 sets forth the general rule to resolve conflict of laws relating to contracts. It provides:
Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.
Louisiana Civil Code article 3515 sets forth general principles of conflict of laws applicable in the event that a more specific article does not apply, but those general principles are at the same time the basic foundation of the specific principles of the other articles on conflict of laws. See La. C.C. art. 3515, Revision Comments1991, (a). It provides as follows:
Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
*1178 That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.
Appellant argues that under applicable principles of conflict of laws, particularly La. C.C. arts. 3515 and 3537, Mississippi law should apply, and the debt was therefore Wade Martin's separate obligation under Mississippi law, as Mississippi is not a community property state. While we would tend to agree that Mississippi law should apply, especially considering La. C.C. art. 3519's directives relating to personal status and "preserving family values and stability," we disagree with the proposition that Mississippi has a separate property system of marital property. The Mississippi Supreme Court formally abandoned the separate property system or "title theory" of distribution of marital property and adopted an equitable distribution system in the case of Draper v. Draper, 627 So. 2d 302, 305 (Miss.1993). See also Ferguson v. Ferguson, 639 So. 2d 921, 925-27 (Miss.1994).
At any rate, whether Louisiana law or Mississippi law is applied to Wade Martin's negotiation and incurring of the debt at issue, it is clear that the debt was not a community obligation. Under Louisiana law (La.C.C. art. 2363), the debt would be a separate obligation, just as if it had been incurred prior to a marriage confected in Louisiana. Under Mississippi law, however, the obligation could conceivably be considered either a separate obligation or a joint marital obligation, subject to equitable distribution after divorce.
During the existence of the community property regime, a separate obligation may be satisfied from community property and from the separate property of the spouse who incurred it. See La. C.C. art. 2345. The same rule applies with regard to satisfaction of such a separate obligation after termination of the community: the creditor may seek satisfaction from the property of the former community in the hands of either spouse, and from the separate property of the spouse incurring the debt. See La. C.C. art. 2357 and 16 Katherine Shaw Spaht and Richard D. Moreno, Louisiana Civil Law Treatise: Matrimonial Regimes § 7.10 (3rd ed.2007). Thus, "the characterization of the obligation as separate or community is irrelevant as to a third party to whom a spouse incurs an obligation." Id. at § 6.2 (footnote omitted).
We agree with appellant that the trial court committed legal error in classifying the debt incurred by Wade Martin to appellee as a community obligation. But its classification was ultimately irrelevant as to appellee's cause of action against Wade Martin and appellant. Appellee was clearly entitled to judgment against both former spouses, because the debt can be satisfied from property of the former community in the hands of either. See Spaht & Moreno, supra, at § 7.10. If the obligation was a purely separate obligation of Wade Martin, appellant's liability would generally be limited to property of the former community in her possession or allocated to her by the extrajudicial partition, but she would not be personally liable beyond the value of the property of the former community in her possession.
In the present context, it is unnecessary for us to definitively characterize the debt incurred by Wade Martin to appellee, other than to conclusively state that it was not a community debt, as there was no community *1179 of acquets and gains in existence when the debt was incurred. If a separate debt under Louisiana law may be satisfied from the property of the former community, then it stands to reason that a separate debt, intermediate category ("quasi-separate") debt, or joint marital debt under Mississippi law may also be satisfied from the property of the later-established Louisiana community. As the trial court committed legal error in its categorization of the debt as a community debt, its factual findings predicated upon such error are not entitled to deference.
Our de novo review of the evidence convinces us that, on the showing made at trial, appellee failed to demonstrate that appellant can be held personally liable to him from her separate property, either on the grounds that it was a joint marital debt or under the second and third paragraphs of La. C.C. art. 2357. Whether appellee may attempt to satisfy the debt from appellant's separate personal assets, in addition to assets of the former community, and whether appellant may seek reimbursement from Wade Martin for any payment she may ultimately make are issues that were not properly presented to the trial court in the context of this litigation and are likewise not before us.[2] The answers to those potential questions must await another day.
We are aware of no legal authority for an in rem judgment against former community property, rather an in personam judgment against the current owner of the property. Louisiana Code of Civil Procedure article 735 provides that during the existence of the marital community, either spouse is a proper defendant to enforce an obligation against community property, except that if one spouse is the "managing spouse" as to the obligation, that spouse is the proper defendant. The third paragraph of the article provides that "[w]hen only one spouse is sued to enforce an obligation against community property, the other spouse is a necessary party." If the other spouse is a necessary party in an action to enforce an obligation against community property when the community is still in existence, it seems to us that appellant, as present owner of property potentially subject to seizure in execution of a judgment against her ex-husband, is obviously a necessary (and probably an indispensible) party to such an action.[3]*1180 Thus, we generally agree with the trial court's ruling that, strictly speaking, appellant is personally liable in solido with her ex-husband for the debt, but any liability on her part is clearly limited to her property of the former community in the context of the present action.
In summary, we agree with appellant that the trial court erred in classifying the obligation owed appellee as a community obligation, and that her first assignment of error has merit. However, insofar as it found both Wade Martin and appellant liable to appellee as owners of property of the former community, the judgment itself is substantively correct as a matter of law, albeit overly broad and susceptible of misinterpretation. Under the authority of La. C.C.P. art. 2164, we accordingly amend the judgment to provide that the defendant, Maria Blackburn Martin, is liable in solido with the defendant Wade Martin, but only from and limited to the extent of her property of the former community. As so amended, the judgment is affirmed. The costs of this appeal are assessed in equal proportions to the appellant, Maria Blackburn Martin, and to the appellee, Michael Martin.
AMENDED AND AFFIRMED AS AMENDED.
DOWNING, J., concurs.
McCLENDON, J. concur and assign reasons.
McCLENDON, J., concurs and assigns reasons.
To the extent that the majority opinion limits Mrs. Martin's liability to former community assets in her possession, I concur with the result reached.
NOTES
[1] The source of the funds on deposit in the bank was a personal injury or workers' compensation settlement in favor of Michael Martin.
[2] Conceivably, appellant and Wade Martin could have sought declaratory relief on those issues by way of reconventional demands against appellee or cross-claims against each other, but they did not. Thus, it was actually unnecessary for the trial court to have determined the character of the debt incurred by Wade Martin for purposes of entry of judgment in favor of appellee, despite the defendants' desire that it do so for purposes of their partition of community and other marital property, other than to confirm that the debt was governed by Mississippi law. Courts are not permitted to issue advisory opinions based on a contingency that may or may not occur. La. Supreme Court Comm. on Bar Admissions ex rel. Webb v. Roberts, 00-2517, p. 3 (La.2/21/01), 779 So.2ed 726, 728. The trial court's finding of fact that the debt was a community obligation was obviously incorrect as a matter of law, and cannot serve as the basis for a later plea of res judicata or collateral estoppel.
[3] A judgment for the payment of money may be executed by a writ of fieri facias directing the seizure and sale of property of the judgment debtor. La. C.C.P. art. 2291. (Emphasis added.) If appellant cannot be a judgment debtor as to appellee, how can the debt be satisfied from property of the former community she now owns? Similarly, notice of seizure of the property is required to be served on the judgment debtor. La. C.C.P. art. 2293. (Emphasis added.) During the existence of the marriage and the community, service on one spouse is sufficient, since each is an agent of the other with respect to the community, and due process is satisfied. See Gewalt v. Stevens, 98-2666, p. 5 (La.App. 1st Cir.9/24/99), 757 So. 2d 705, 708. But after divorce, due process would require notice of seizure to appellant, since Wade Martin cannot be considered her agent for purposes of seizure of property now belonging to her. If appellant cannot be held a "judgment debtor" as to the former community property she now owns, then that property cannot be seized in satisfaction of the debt under art. 2291, and appellee would have no effective recourse against her. And if appellee is entitled to execute against that former community property, even if appellant is not a "judgment debtor," then she would not technically be entitled to notice of seizure under the language of La. 2293. Such a result would violate due process, as depriving someone of a property interest without notice and an opportunity to be heard. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617372/ | 190 S.W.3d 533 (2006)
Albert E. HALL, Movant/Appellant,
v.
STATE of Missouri, Respondent.
No. ED 86029.
Missouri Court of Appeals, Eastern District, Division Five.
April 25, 2006.
*534 Margaret M. Johnston, Columbia, MO, for Movant/Appellant.
Deborah Daniels, Jefferson City, MO, for Respondent.
GLENN A. NORTON, C.J.
Movant, Albert E. Hall, appeals from the judgment denying his motion for post-conviction relief under Rule 24.035. We affirm, but remand for a correction of Movant's sentence.
Movant pleaded guilty to statutory rape in the first degree. Movant was charged as a prior offender, as well as a persistent sexual offender under section 558.018.2, RSMo 2000, and a predatory sexual offender under section 558.018.5, RSMo 2000. Movant had a prior conviction in Ohio for "Sexual Battery in the Third Degree." The State alleged that this charge was equivalent to statutory rape in the first degree in Missouri. At his sentencing, the State announced a plea agreement that Movant would admit the facts of the Ohio case, which would make him a predatory sexual offender. This admission would cause Movant to be sentenced to life imprisonment under section 558.018.5. In return, the State would recommend that the court set a minimum period of incarceration of fifteen years before Movant would be eligible for parole.
At the sentencing, the trial court concluded that Movant was a predatory sexual offender. Following the plea agreement, the court's oral pronouncement of Movant's sentence was life imprisonment with a minimum of fifteen years before he would be eligible for parole. However, on that same day, the trial court entered a written judgment and sentence that differed from its oral pronouncement of sentence. On the written sentence, the court checked the box finding Movant to be a "persistent sexual offender," instead of a "predatory sexual offender."
Movant filed a motion for post-conviction relief under Rule 24.035. His appointed counsel amended the motion, which alleged the written sentence differed from the oral pronouncement of sentence. After an evidentiary hearing, the motion court entered findings of fact and conclusions of law denying Movant's Rule 24.035 motion. Movant appeals.
In his sole point on appeal, Movant asserts the motion court clearly erred in denying his 24.035 claim that he was improperly sentenced as a persistent sexual *535 offender in the written judgment and sentence, because during the oral pronouncement of sentence Movant was sentenced as a predatory sexual offender. Movant asserts he suffered prejudice because predatory offenders are eligible for parole, while persistent sexual offenders are not eligible for parole.[1] The State agrees that the court erred.
When a written sentence differs materially from the oral pronouncement of sentence, the oral pronouncement generally controls. State v. Jackson, 158 S.W.3d 857, 858 (Mo.App. E.D.2005). The record shows, and the parties agree, that the oral sentence and written sentence materially differ. A limited remand is necessary for the trial court to correct the written judgment to reflect the oral pronouncement of sentence. State v. Patterson, 959 S.W.2d 940, 942 (Mo.App. E.D.1998).
The motion court's denial of Movant's Rule 24.035 motion is affirmed. The case is remanded for the sole purpose of the court to correct the written judgment and sentence to reflect the oral pronouncement of sentence in the underlying criminal case.
ROBERT G. DOWD, JR., J., and ROY L. RICHTER, J., concurring.
NOTES
[1] Movant's Rule 24.035 motion raised other allegations of ineffective assistance of counsel. Movant does not challenge the motion court's findings on those allegations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617425/ | 419 Mich. 48 (1984)
347 N.W.2d 444
LEASE CAR OF AMERICA, INC
v.
RAHN
Docket No. 71554.
Supreme Court of Michigan.
Decided May 3, 1984.
Kemp, Klein, Endelman & Beer, P.C., for the plaintiff.
*49 Coticchio, Zotter & Sullivan, P.C., for the defendant.
PER CURIAM:
The issue for decision in this case is whether MCL 500.3020; MSA 24.13020 requires an insurance company to provide notice of cancellation of a policy to each party who qualifies as an "insured" under the policy or only to those insured under the policy who are designated as entitled to notice of cancellation pursuant to the terms of the policy. We conclude that the statute requires notice to each party who qualifies as an "insured" under the policy.
I
Plaintiff, Lease Car of America, Inc., leased an automobile to Stephen Rahn. Pursuant to the lease agreement, Mr. Rahn was to purchase insurance, including collision coverage, for the automobile. The lease agreement also provided that upon receipt by plaintiff of notice of cancellation of the insurance policy, it could, at its option, continue the policy and charge Mr. Rahn for the premium payments.
The case was submitted to the trial court on the following stipulated facts.
"That on or about October 8, 1977, codefendant Stephen Rahn, purchased a policy of insurance with the Associated General Insurance Company.
"That thereafter on October 8, 1978, said policy of insurance was renewed to expire on October 8, 1979 * * *.
"That from the inception of the policy dated October 8, 1978, the codefendant, Stephen Rahn, failed to make prompt and adequate payment of said premium, and as a result thereof, said policy was cancelled effective December 9, 1978 * * *.
*50 "That the said policy provided that Stephen Rahn was the insured named in Item 1 of the declaration under said policy of insurance. Further, that prior to the date of cancellation of said policy, by endorsement titled Extended Insurance, Lease Car of America was included as an `insured' as defined in said endorsement * * *.
"The policy of insurance so issued was cancelled effective December 9, 1978, by giving notice to the named insured, Stephen Rahn * * *. Further for the purpose of this stipulated statement of fact, it is agreed that the Associated General Insurance Company did not give notice to the plaintiff, Lease Car of America, of the cancellation of said policy.
"On January 3, 1979, the codefendant Stephen Rahn was involved in an automobile collision, said collision damaging the said Mercedes Benz to a point where it is claimed that the repair of said described vehicle was not feasible.
"That upon learning of the damage to the said Mercedes Benz, Lease Car of America contacted Associated General regarding the filing of a claim. Associated General rejected plaintiff's claim contending that the policy in question was cancelled prior to the loss and that the defendant had no obligation to inform or advise Lease Car of America of the prior cancellation."
The policy provision with regard to cancellation was paragraph 16, which provided in relevant part:
"[I]f the named insured fails to discharge when due any of his obligations in connection with the payment of premium for this policy or any installment thereof, whether payable directly to the company or its agent or indirectly under any premium finance plan or extension of credit, this policy may be cancelled by the company by mailing to the insured named in Item 1 of the declarations at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of *51 notice as aforesaid shall be sufficient proof of notice." (Emphasis supplied.)
The endorsement which applies to the plaintiff was known as "J-2" and provided in relevant part:
"EXTENDED INSURANCE
"Coverages A, B, and C Bodily Injury Liability, Property Damage Liability and Automobile Medical Payments
"It is agreed: That, the unqualified word `Insured' wherever used in Coverages A, B, and C and in other parts of this policy, when applicable to such coverages, includes the named insured, and, except where specifically stated to the contrary also includes Lease Car of America, 21517 Kelly Road, East Detroit, MI 48021."
Finally, a statute governing the necessity for and manner of notification of cancellation also bears on this matter. MCL 500.3020; MSA 24.13020 provides in pertinent part:
"(1) A policy of casualty insurance, except worker's compensation, including all classes of motor vehicle coverage, shall not be issued or delivered in this state by an insurer authorized to do business in this state for which a premium or advance assessment is charged, unless the policy contains the following provisions:
* * *
"(b) That the policy may be canceled at any time by the insurer by mailing to the insured at the insured's address last known to the insurer or an authorized agent of the insurer, with postage fully prepaid, a 10 days' written notice of cancellation * * *."
The trial court considered the policy language together with the statutory language and found that the defendant had complied with the contractual language of the policy and with the relevant statutory language by notifying only Mr. Rahn. *52 Accordingly, a judgment of no cause of action was entered in favor of the defendant.
II
On appeal, the Court of Appeals panel which considered this case was divided on the question whether the defendant satisfied its contractual and statutory obligations by simply notifying Mr. Rahn of the cancellation of the policy. The majority concluded that the trial court had correctly decided the matter, reasoning:
"We hold that where the policy contains a provision authorizing cancellation upon notice to a specific named insured, and where the insurer complies with the policy provision, the insurer's failure to give notice to the other parties insured under the policy does not render the cancellation ineffective. In cases where the policy contains a specific provision governing notice of cancellation, we do not believe the statute requires notice to all other insureds under the policy. To the contrary, we believe that, had the Legislature intended to impose such a requirement, it would have specifically used the phrase `all insureds' rather than the singular term `insured'. 124 Mich. App. 686, 692; 335 NW2d 123 (1983).
Judge BRENNAN dissented, observing:
"The language of one lonely paragraph in the policy, to the exclusion of the language of the entire remaining insurance contract, surely cannot be construed as setting forth the only standard or requirement for notice. The insurance contract should be read as a whole and a simple reading of the contract in the present case reveals immediately who the insureds are. I believe that the appropriate test to be used in determining who is to receive notice pursuant to the statute, MCL 500.3020; MSA 24.13020, is simply who are the insureds within the contract, not where their names appear in the contract.
*53 "The insured is entitled to rely upon the language of MCL 500.3020; MSA 24.13020 more than the mere arbitrary policy of the insurer as to where the insured's name should appear. If the insured's name does not appear in the appropriate place, the insurer is not entitled to hide behind its policy provision, or its designation of an insured as a `named insured', an `insured' or an `insured named in Item 1', to avoid its statutory obligation to serve notice of cancellation on all of the insureds named in the policy." 124 Mich App 693-694.
The plaintiff has filed an application for leave to appeal with this Court.
III
In beginning the discussion of the merits of the plaintiff's contentions, it would be useful to recount what, because of the stipulations agreed on by the parties, is not in dispute. First of all, it is not disputed that the plaintiff was an insured under the insurance policy in question, at least in terms of potential liability on the part of the defendant for damage to the automobile should it have occurred prior to a valid cancellation. Second, it is not disputed that the accident which was the occasion of damage to the automobile leased by the plaintiff to Mr. Rahn occurred after the defendant had notified Mr. Rahn of the fact that the policy was being canceled. What is in dispute is whether, pursuant to the policy language itself, MCL 500.3020; MSA 24.13020, or both the policy language and the statute, the plaintiff was also entitled to notification that the policy was being canceled.
Let us first examine the question whether the policy language, standing alone, mandated that plaintiff receive notice of cancellation. We find the inescapable conclusion from a reading of the cancellation *54 provision of the policy (¶ 16) is that only "the insured named in Item 1 of the declarations", that is, Mr. Rahn, had to receive notice of cancellation.
However, as noted, it cannot be disputed that the plaintiff was an insured under the policy and that reference to that fact is made at several points in the policy. The question then becomes whether the statute, MCL 500.3020; MSA 24.13020, requires notice of cancellation of a policy to be given to all insureds covered by the policy, not just to whatever individual insured the policy language may designate as entitled to notice.
We conclude that when the Legislature promulgated MCL 500.3020; MSA 24.13020 it contemplated that notice of cancellation pursuant to this statute would be afforded to all of the parties insured under the policy. The obvious objective of this statute is to make certain that all of those who are insured under a policy are afforded a period of time, ten days, either to satisfy whatever concerns have prompted cancellation and thus revive the policy or to obtain other insurance, or simply to order their affairs so that the risks of operating without insurance will not have to be run. That objective cannot be achieved if the insurer, pursuant to policy language, need only notify a designated insured that cancellation is imminent.
In Mutual Benefit Life-Ins Co v Comm'r of Ins, 151 Mich. 610, 615; 115 N.W. 807 (1908), this Court examined the consequences of the existence of certain provisions in a life insurance policy which differed to some extent from those standard provisions set forth in a statute. We stated:
"[T]he requirement that certain provisions shall be *55 and certain others shall not be incorporated in the policy requires us to say that no provisions should be inserted which have the effect of avoiding or nullifying the required provisions. We may, and perhaps should, go further and say that no provision may rightfully be used which shall, with or without action of the policy holder, materially change or avoid the statute scheme of the contract."
MCL 500.3020; MSA 24.13020 requires that notice of cancellation of a policy be given to "the insured" without limitation. The statute makes no exception for a "named insured", a "designated insured", or the like. On the contrary, the statute calls for notice to be afforded to "the insured". Thus, the provision in the policy calling for notice of cancellation to be given only to Mr. Rahn has the effect of avoiding the statutory scheme. Moreover, it is well settled that the insurance laws are to be liberally construed in favor of policyholders, creditors, and the public. Dearborn National Ins Co v Comm'r of Ins, 329 Mich. 107, 118; 44 NW2d 892 (1950).
Accordingly, we conclude that the defendant was required to provide notice of cancellation to the plaintiff. It did not do so. Therefore, as to the plaintiff, the policy was in effect at the time of the accident in question. Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and of the Macomb Circuit Court, and we remand the case to the Macomb Circuit Court for further proceedings not inconsistent with this opinion.
WILLIAMS, C.J., and KAVANAGH, LEVIN, RYAN, BRICKLEY, CAVANAGH, and BOYLE, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/96670/ | 206 U.S. 129 (1907)
ADAMS EXPRESS COMPANY
v.
KENTUCKY.
No. 331.
Supreme Court of United States.
Argued April 17, 18, 1907.
Decided May 13, 1907.
ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.
*131 Mr. Lawrence Maxwell, Jr., and Mr. Edmund F. Trabue, with whom Mr. Joseph S. Graydon was on the brief, for plaintiffs in error, in this case and in No. 332 argued simultaneously herewith:[1]
Mr. Napoleon B. Hays, Attorney General of the State of Kentucky, with whom Mr. Charles H. Morris was on the brief, for defendant in error, in this case and in Nos. 332 and 583 argued simultaneously herewith:[1]
*135 MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
The testimony showed that the package, containing a gallon of whiskey, was shipped from Cincinnati, Ohio, to George Meece, at East Bernstadt, Kentucky. The transaction was therefore one of interstate commerce, and within the exclusive jurisdiction of Congress. The Kentucky statute is obviously an attempt to regulate such interstate commerce. This is hardly questioned by the Court of Appeals, and is beyond dispute under the decisions of this court.
In Vance v. Vandercook Company (No. 1), 170 U.S. 438, 444, Mr. Justice White, delivering the opinion of the court, said:
"Equally well established is the proposition that the right to send liquors from one State into another, and the act of sending the same, is interstate commerce, the regulation whereof has been committed by the Constitution of the United States to Congress, and, hence, that a state law which denies such a right, or substantially interferes with or hampers the same, is in conflict with the Constitution of the United States."
In Rhodes v. Iowa, 170 U.S. 412, 426, it was held that the Wilson Act "was not intended to and did not cause the power of the State to attach to an interstate commerce shipment, whilst the merchandise was in transit under such shipment, and until its arrival at the point of destination and delivery there to the consignee."
The Court of Appeals sustained the judgment upon these facts: Meece testified that he had not ordered the whiskey; that he was not expecting any from Cincinnati, but, on going with his brother to the company's office at East Bernstadt, was told that it was there awaiting him; that he requested the agent to hold it until the succeeding Saturday, when he would come, pay for and take it away; and that on that day he did so, paying $3.85 for the whiskey, the express charges *136 having been prepaid at Cincinnati. The court held that, by reason of the retention of the package by the agent, the company ceased to hold it as carrier, and had become a mere bailee or warehouseman; that, therefore, the statute, as applied to the transaction, was not a regulation of commerce; and, further, that as Meece had not ordered the whiskey there was no contract for the sale of it in Cincinnati, but only by the company at East Bernstadt, in Kentucky; that while there was no testimony showing that the company's agent at Cincinnati knew that the whiskey had not been ordered by Meece, yet its agent in Kentucky was so informed, and, therefore, the company was possessed, through its agent, of knowledge that there was no interstate transaction, and with that knowledge sold the whiskey to Meece. But that the agent consented to hold the whiskey until Saturday did not destroy the character of the transaction as one of interstate commerce is settled by the recent case of Heyman v. Southern Railway Company, 203 U.S. 270. In that case whiskey had been forwarded to a party in Charleston, South Carolina, and after its arrival at Charleston was placed in the warehouse of the railroad company by its agent and there seized by constables, asserting their right so to do under the dispensary law of South Carolina. The point was made and sustained by the Supreme Court of the State of Georgia, in which State an action had been brought against the company for the value of the goods, that when the goods were placed in the warehouse the carrier was thenceforward liable only as a warehouseman. In passing upon this contention we said (p. 276):
"As the general principle is that goods moving in interstate commerce cease to be such commerce only after delivery and sale in the original package, and as the settled rule is that the Wilson law was not an abdication of the power of Congress to regulate interstate commerce, since that law simply affects an incident of such commerce by allowing the State power to attach after delivery and before sale, we are not concerned with whether, under the law of any particular State, the *137 liability of a railroad company as carrier ceases and becomes that of a warehouseman on the goods reaching their ultimate destination before notice and before the expiration of a reasonable time for the consignee to receive the goods from the carrier. For, whatever may be the divergent legal rules in the several States concerning the precise time when the liability of a carrier as such in respect to the carriage of goods ends, they cannot affect the general principle as to when an interstate shipment ceases to be under the protection of the commerce clause of the Constitution, and thereby comes under the control of the state authority."
With reference to the testimony as to the knowledge by the company of the fact that the whiskey had not been ordered by the consignee, it is sufficient to say that the averment in the indictment is that the express company was engaged in the business of a common carrier of packages, etc., and that the shipment and delivery were made and done in the usual course of its business. This excludes necessarily the assumption that the transaction was one of sale by the express company at East Bernstadt, and of course the company was under no obligation to offer testimony in support of that which the State admitted to be the fact.
We do not mean to intimate that an express company may not also be engaged in selling liquor in a State contrary to its laws, or that the fact that the consignee did not order a shipment might not be evidence for a jury to consider upon the question whether the company was not, in addition to its express business, also selling liquor contrary to the statutes. It is enough to hold, as we do, that under the averments of this indictment such testimony is immaterial. It is, of course, a question of fact whether a carrier is confining itself strictly to its business as a carrier, or participating in illegal sales. The consignor alone may be trying to evade the statute. He may forward the liquors in the expectation that the consignee will, when informed of their arrival, take and pay for them. So the fact that there is no previous order by the consignee *138 may not be conclusive of the carrier's wrongdoing, but still it is entitled to consideration in determining that question.
Much as we may sympathize with the efforts to put a stop to the sales of intoxicating liquors in defiance of the policy of a State we are not at liberty to recognize any rule which will nullify or tend to weaken the power vested by the Constitution in Congress over interstate commerce.
The judgment of the Court of Appeals of Kentucky is reversed and the case remanded for further proceedings not inconsistent with this opinion.
MR. JUSTICE HARLAN dissented in this case and in the two succeeding cases. See p. 141, post.
NOTES
[1] See p. 138, post.
[1] See pp. 138 and 139, post. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/96671/ | 206 U.S. 139 (1907)
AMERICAN EXPRESS COMPANY OF NEW YORK
v.
KENTUCKY.
No. 583.
Supreme Court of United States.
Argued April 17, 18, 1907.
Decided May 13, 1907.
ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.
Mr. Lawrence Maxwell, Jr., and Mr. Edmund F. Trabue, with whom Mr. Joseph S. Graydon was on the brief, for plaintiffs in error.[1]
Mr. Napoleon B. Hays, Attorney General of the State of Kentucky, with whom Mr. Charles H. Morris was on the brief, for defendant in error.[1]
*140 MR. JUSTICE BREWER delivered the opinion of the court.
This case, like the two preceding, was a prosecution of the express company for a violation of the Kentucky statute in respect to "C.O.D." shipments. It was tried in the Circuit Court before a jury, which returned a verdict of guilty and fixed the penalty at one hundred dollars fine, which verdict was sustained and judgment entered thereon by the Circuit Court. The company appealed to the Court of Appeals, which affirmed the judgment, 97 S.W. Rep. 807, 30 Ky. Law Reporter, 207, and thereupon the case was brought here on writ of error.
The consignee testified that he did not give an order for the shipment, while there was testimony on behalf of the consignor that such an order was filed with it in the name of the consignee and the shipment made upon that order. The brief of the Attorney General in the Court of Appeals, after referring to the testimony of a witness on behalf of the company, said:
"It will appear from his evidence that he resides in Cincinnati, Ohio, and is manager for a wholesale liquor firm located in said city; that on March 21st, 1905, he received an order filed as an Exhibit `X' from Richard Graham of Hodgensville, Ky., for an order of whiskey to be sent C.O.D., for the delivery of which the warrant herein was issued against the appellant company; that upon this order the whiskey in question was shipped to said Graham at Hodgensville, Ky., and delivered to him and the charges therefor paid to the appellant company, who returned the same to the said house or firm in Cincinnati, Ohio. There is no proof to show that the express company had any knowledge or information as to the contents of said package so delivered, and there is nothing to show any notice to it whatever of the contents of said package.
* * * * * * * *
"We, however, desire the court to pass upon the question, *141 in order that the many complications growing out of transactions similar to this may be simplified, and the multitude of litigations growing out of the same lessened, whether or not a company similar to the appellant can legally accept the price for whiskey shipped into a local option district contrary to law, thus constitute itself a collecting agency for one who is under the shield of interstate commerce protected and permitted to ship whiskey into such districts. We are of opinion that an express company has no inherent right under the laws of this State or under the protection of interstate commerce to assume a duty not required of it, as a common carrier, and to do that which is in violation of the laws of this State. Because we believe that this record in its present shape does not show that the appeal from the police court to the Circuit Court of Larue County was properly and legally taken, and for the further reason that the express company has no right, in violation of law, to accept the price in a local option district of whiskey shipped C.O.D., we ask that the judgment be affirmed."
In view of the concession and contention of the Attorney General we are of the opinion that there is nothing to substantially distinguish this case from the preceding. The same judgment, therefore, will be rendered in this case as in those.
MR. JUSTICE HARLAN, dissenting.
I do not think that these are cases of legitimate interstate commerce. They show only devices or tricks by the express company to evade or defeat the laws of Kentucky relating to the sale of spirituous, vinous or malt liquors. I dissent from the opinion and judgment in each case.
NOTES
[1] For abstracts of arguments see ante, p. 131 et seq. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1620349/ | 294 S.W.2d 539 (1956)
BELFRY COAL CORPORATION, Appellant,
v.
EAST KENTUCKY BEVERAGE COMPANY, Appellee.
Court of Appeals of Kentucky.
October 19, 1956.
F. Dale Burke, Burke & Burke, Pikeville, for appellant.
Hobson & Scott, Pikeville, for appellee.
MOREMEN, Judge.
This is an appeal from a judgment which denied appellant, Belfry Coal Corporation, injunctive relief and damages under KRS 365.020. The language of this statute is involved but, when paraphrased to meet the facts of this instant case, it means:
*540 No person who distributes a product of general use, shall discriminate between different communities or any portion thereof with intent to destroy the competition of any dealer in such community, by selling the merchandise at a lower rate in one community than in another.
This section is a part of the so-called Fair Trade Practice Act of this state. It has been said that the purpose of the law against unfair competition is to protect the competitive position of business enterprise. These rules of competition guarantee the maintenance of competitive order. We are compelled to recognize that nearly all competitors try to eliminate their rivals in their struggle to conduct a profitable business. The statutes seem to attempt to suppress that impulse.
The terms "fair trade" or "unfair competition" seem to be but a convenient synonym for combining a legal standard with certain ethical values that are not always an integral part of every rule of law because at times the law does not concern itself with theological or metaphysical implications. It is often not concerned with motive or state of mind and is directed primarily at behavior regardless of the thoughts in the mind of the person who performs the acts. In short, if a man acts right according to our rules, it matters not, in most cases, what he thinks. We are usually concerned with the result and not the stimulus. The law, however, does on certain occasions concern itself with intent, and when we enter this abstract field we are often armed only with our well used measures of behavior. Also, we observe that usually these fair trade statutes are aimed at conditions where one man is attempting to eliminate another who is in his same competitive field. However, KRS 365.020, and particularly that part which is paraphrased above, seems to indicate that aggression need not be directed toward an actual competitor in the same field, it protects persons against any one whom the seller of the commodity whatever the reason might wish to hurt. The statute seems to be directed mainly at price cutting, rebates, and other devices which might aid in driving a competitor out of business to the extent that it is even prohibited that a person sell at less than cost if the purpose is to injure competitors, KRS 365.030. In fact, the whole purpose of fair trade acts, with this one exception, seems to be directed at prohibiting cutting prices rather than raising them. However, we are concerned with the exception, which requires a statement of facts.
Appellant operates a retail grocery store in the Tug River area of Pike County. Appellee, East Kentucky Beverage Company, operates a soft drink manufacturing plant at Pikeville and distributes and sells its products throughout Pike County and about twelve other counties. It also has a plant at Hazard.
The business of manufacturing and selling soft drinks is highly competitive and although each drink has a trade name, competition seems to exist regardless of the coloring or flavor of the commodity.
In Pike County, appellee, East Kentucky Beverage Company, had competition from several sources, the Pikeville Coca-Cola Bottling Company of Pikeville, the Williamson Coca-Cola Bottling Company and the Sanitary Bottling Company of Williamson, West Virginia.
The general manager of appellee company testified that the wholesale price of 96¢ to $1 per case would give a reasonable profit to his company. Prior to June 1953, the local distributors were selling it at a lower price, but at that time, the price was increased and this condition lasted until December 31, 1953, when the Pikeville Coca-Cola Bottling Company notified its customers and competitors that it was reducing its price to 80¢ per case. The appellee company, which distributes Seven Up, Orange Crush and Pepsi-Cola reduced the price of its bottled goods to meet the *541 80¢ per case wholesale price. It was testified that appellee company at that time was dissatisfied but was unable to charge more because of competition. However, on the 18th day of April 1955, the Williamson Coca-Cola Bottling Company and the Sanitary Bottling Company, who were servicing a portion of Pike County which lies on the watershed of Tug River, raised their price from 80¢ to 96¢ per case and, simultaneously, appellee also raised its price to dealers in the Tug River area to 96¢ per case, but continued the price of 80¢ per case to the remaining part of Pike County.
Appellant complained that this action was discriminatory and in violation of KRS 365.020, and filed suit for the relief above mentioned.
The trial court was of opinion that the discrimination was not made with the intention to destroy competition of appellant and other merchants located in other portions of the county and lacked an essential element necessary before the terms of the statute may be invoked.
We are in accord with that opinion. We do not believe it was the intention of the statute to penalize distributors in cases where mala fides is not involved, and we can find not even a trace of that here. The appellee, as we understand this record, had lowered the price to the entire county merely for the purpose of meeting competition. When his competitors increased their price, he gladly accepted for his own benefit a price which would return to him a reasonable profit for his labors, but the action was not directed at injuring a customer. The record fails to disclose, even in the slightest degree, ill feeling or ill intentions toward appellant and is lacking, we believe, the gravamen of the offense, i. e., the intention to destroy the competition of his dealer.
The trial court pointed out in his opinion that not only would loss of profit to the dealer be very small, but also that the natural barriers between the Tug River area and the rest of the county would tend to deny that any competition by the dealer would be destroyed.
The judgment is therefore affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620361/ | 294 S.W.2d 498 (1956)
Marjorle TROTTER, Adm'x, Appellant,
v.
OZARKS RURAL ELECTRIC COOP. CORPORATION, Appellee.
No. 5-972.
Supreme Court of Arkansas.
October 1, 1956.
Rehearing Denied November 5, 1956.
Hardin, Barton, Hardin & Garner, Ft. Smith, for appellant.
Wade & McAllister, Fayetteville, Barber, Henry & Thurman, Little Rock, for appellee.
HOLT, Justice.
By this appeal appellant, Marjorie Trotter, Adm'x, challenges the judgment of the trial court sustaining appellee's demurrer to her complaint, and dismissing her complaint, upon her refusal to plead further. In testing the complaint on demurrer, we must treat all allegations that are well pleaded to be true.
Appellant's allegations in her complaint here were, in effect, that she is the widow of Earl Trotter and at the time of his death both were residents of Benton County Arkansas; that appellee, Ozarks Rural Electric Cooperative Corporation, is an Arkansas corporation with its principal office in Fayetteville, Arkansas; that Earl Trotter, while employed by the Killoren Company, in the course of his employment, *499 negligently killed near Stilwell, Oklahoma; that Killoren Company of Appieton, Wisconsin, entered into a contract with appellee (Ozarks Rural Electric Coop. Corp.) whereby they agreed to build a transmission line between Evansville, Arkansas and Stilwell, Oklahoma; and that appellee was at "the time and place" selling electric service to its customers along said proposed transmission line. It appears that appellant conceded to be true the following facts, (Admission of Fact under Act 335 of the 1953 Legislature) upon which her complaint was based, and the trial court considered them as allegations in the complaint. "1. That plaintiff, Marjorie Trotter, is the duly appointed Administratrix of the Estate of Earl E. Trotter, deceased, and that she was so appointed; by the Benton County Probate Court. 2. That the defendant, Ozarks Rural Electric Cooperative Corporation, is a cooperative, organized under the laws of the State of Arkansas, with its principal place of business at Fayetteville, Arkansas. 3. That Killoren Company is a construction company, maintaining its principal place of business at Appleton, Wisconsin, and that at the time of the accident more specifically referred to in plaintiff's complaint, and which occurred on July 29, 1954, Killoren Company was engaged in the construction and erection of electric transmission lines between Stilwell, Oklahoma, and Evansville, Arkansas, said lines being constructed for and on behalf of defendant, Ozarks Rural Electric Cooperative Corporation. 4. That Construction Contract No. 23X, dated April 16, 1953, between Killoren Company and Ozarks Rural Electric Cooperative Corporation, together with Amendments Numbered 1, 2, and 3, are the written contracts between Ozarks Rural Electric Cooperative Corporation and Killoren Company and were the contracts under which Killoren Company and its employees were working on July 29th, 1954. 5. That said contract above referred to specifically required Killoren Company to carry Workmen's Compensation Insurance for the protection of its employees and for the protection of the Ozarks Rural Electric Cooperative Corporation; that said contract above referred to further provided that Killoren Company would hold Ozarks Rural Electric Cooperative Corporation harmless from any and all claims, losses, or damages which might arise by reason of the performance of the terms and provisions of said contract; and that a photostatic copy of the pertinent provisions of said contract above referred to, are attached hereto and made a part of this Request for Admission of Facts as though set forth herein word for word. 6. That pursuant to the foregoing Contracts, Killoren Company did proceed with the work called for thereunder, which said work in itself, was of an extrahazardous nature. 7. That in the performance of the Contract, Killoren Company did employ Earl Trotter, deceased, and said Earl Trotter at the time of his death on July 29, 1954, was an employee, acting in the course and scope of his employment with Killoren Company and that he lost his life when he came in contact with an energized line, which line Killoren Company was erecting for Ozarks Rural Electric Cooperative Corporation. 8. That before entering into the performance of said Contract, Killoren Company, pursuant to the terms thereo-f, did obtain standard form of Workmen's Compensation Insurance through Maryland Casualty Company, which said company was and is qualified to do business in the State of Oklahoma. 9. That the accident in question occurred at or near Stilwell, Oklahoma, and immediately thereafter, that plaintiff Marjorie Trotter, as widow of the said Earl E. Trotter, Deceased, and as Guardian for Jo Ann Trotter, minor child of the said Earl E. Trotter, deceased, being the surviving widow and sole surviving heir at law of the said Earl E. Trotter, deceased, did apply for, collect and receive the maximum amount being paid by Maryland Casualty Company, Workmen's Compensation carrier for Killoren Company. 10. That the amount collected by the said Marjorie Trotter, as widow of the said Earl E. *500 Trotter, Deceased, and as guardian for Jo Ann Trotter, minor child of the said Earl E. Trotter, deceased, amounted to the total sum of Thirteen Thousand Five Hundred Dollars ($13,500.00). ` 11. That the foregoing amount so collected resulted from the death of the said Earl E. Trotter on July 29, 1954, which is one and the same accident as that referred to in plaintiff's complaint." Appellee's demurrer alleged that the complaint failed to state facts sufficient to constitute a cause of action for the reason that plaintiff's (appellant) exclusive remedy was under the Oklahoma Workmen's Compensation Act. `
We have concluded that the demurrer was properly sustained and that the judgment of the trial court was correct and should be affirmed. Appellant relies on two points: "1. The law of Arkansas `allows this action, and the trial court erred in sustaining appellee's demurrer. 2. Assuming for the purposes of argument that Oklahoma law applies, still said law permits this action and the trial court erred in sustaining appellee's demurrer." Here it is conceded that the death of appellant's intestate occurred in Oklahoma, therefore, any right to recover and the measure of damages must be tested by the laws of that state, American Railway Express Co. v. Davis, 152 Ark. 258, 238 S.W. 50, 1063; Magnolia Petroleum Co. v. Turner, 188 Ark. 177, 65 S.W .2d 1. It is also undisputed that the Killoren Company, in accordance: with its contract with Ozarks Rural Electric Cooperative Corporation, secured the payment of compensation benefits that might accrue to a workman employed by Killoren Company and who might suffer accidental injury or death arising out of and in the course of his employment, and also secured and kept in force a workmen's compensation insurance policy. Section 11, subds. 1 & 2, of 85 Oklahoma Statutes 1951 provides: "1. In the absence of provisions to the contrary in any contract with an independent contractor, such independent contractor shall be conclusively presumed to have agreed, as a part of the terms of the contract, that he will comply with the Workmen's Compensation Laws of this State, and in case of a failure to do so, the person procuring such work to be done by independent contractors may declare such failure a substantial violation of the contract, and terminate the same at his or their option. All unpaid balances due under such contract, or so much thereof as may be reasonably necessary, may be retained as indemnity against compensation claims under the Workmen's Compensation Act of this State. The independent contractor shall, at all times, be liable for compensation due to his direct employees, or the employees of any subcontractor of such independent contractor, and the principal employer shall also be liable in the manner hereinafter specified for compensation due all such employees. Provided, however, that for-the purposes of this Act, a lessor or sub-lessor shall be deemed not to be one having an interest in the subject matter, the principal employer, contracting employer, employer, general, intermediate, or immediate, independent contractor or intermediate contractor, of the lessee or of any subsequent sub-lessee, or of the employees of the lessee or of any subsequent lessee, including the employees of the sub-contractors of the lessee or of any subsequent sub-lessee. 2. The person entitled to such compensation shall have the right to recover the same directly from his immediate employer, the independent contractor or intermediate contractor, and such claims may be presented against all of such persons in one proceeding. If it appears that the principal employer has failed to require a compliance with the Workmen's Compensation Law of this State, by his or their independent contractor, then such employee may also proceed in the same investigation or case against such principal employer. If it shall be made to appear in such proceeding that the principal employer has failed to require a compliance with this Act by his independent contractor then such principal employer shall be liable for all such injuries to employees of his independent contractor, or the *501 subcontractor of such independent contractor. If it appears in such proceeding that the principal employer is liable for compensation under the terms of this Act, and the' subcontractors of the independent contractor and their sureties, are also liable, then judgment or order shall be issued against all of such parties and execution may be issued therefor, but such execution shall first be enforced against those found liable other than the principal employer, and will be enforced as against the principal employer only foi" the residue of such claim after exhausting the execution against others liable therefor. Payment of the compensation found due by any of the persons liable therefor, `Shall be complete satisfaction of the claim as to other parties, but any person secondarily liable for such compensation shall have a cause of action against the person primarily liable for the recovery of any payment made on account thereof." It is perfectly clear that this Oklahoma Workmen's Compensation Law provides-the exclusive remedy to recover by claimant, appellant, whose husband was killed in that state while engaged in a hazardous employment, as here, as against an employer, principal contractor or sub-contractor? Under the above sections Ozarks Rural Electric Cooperative Corporation waS clearly a principal employer and in no sense a third party, and appellant, claimant, is precluded from filing a tort action against Ozarks after having voluntarily availed herself of the Oklahoma Workmen's Compensation Act above (which appears to be more favorable than our own compensation act) and has received the maximum payments thereunder.
The Supreme Court of Oklahoma in the case of Mid-Continent Pipe Line Co. v. Wilkerson, 1948, 200 Okl. 335, 193 P.2d 586, in construing the above sections of the Oklahoma Workmen's Compensation Law held: "[Headnote 1.] Employee's, right of action for injuries arising out of and ih course of hazardous employment and jurisdiction of Courts thereover, with certain exceptions, are abrogated by Workmen's Compensation Law (85 O.S.1941 §1 et seq.). [Headnote 2.] SamePrincipal employer not liable in tort for injuries to employee of independent contractor. Liability of the principal employer under the terms of the Workmen's Compensation Law of this state to provide compensation for injuries to an employee of an independent contractor is exclusive, and such employee is without right to maintain action in tort against the principal employer on account of such injuries."
As recent as 1954 the United States District Court, Western District of Oklahoma, 146 F.Supp. 217, had occasion to construe the above sections of the Oklahoma Work" men's Compensation Law in a case wherein the facts were, in effect, on all fours with the present case. The opinion in that case contains this language:
"Robert E. Woody, Plaintiff, | In the United States District
v. | Court for the Western District
Union Equity Co-op. Exchange, | of Oklahoma.
a Corporation |
Defendant, > No. 5998 Civil
National Painting Corporation, |
Third Party Defendant, |
State Insurance Fund, |
Compensation Ins. Carrier |
Memorandum
"The plaintiff, a resident of Missouri, brought this action to recover damages for personal injuries due to the alleged negligence of the defendant, an Oklahoma corporation.
"The undisputed facts disclose that the defendant, Union Equity Co-Operatize Exchange, *502 on March 23, 1953, entered into a contract with the National Painting Corporation for the painting and water-proofing of its grain elevator, The plaintiff, Robert E. Woody, was one of the employees of the National Painting Corporation and on July 15, 1953, was engaged in the course of his employment in the performance of the work to be done upon Union Equity's elevator. While so engaged he suffered an accidental injury while riding upon Union Equity's manlift, a revolving composition belt with foot platforms used to enable employees, to ascend and descend from one floor to another.
"In its contract Union Equity required National Painting Corporation to secure the payment of compensation benefits which might accrue to a workman employed by National Painting Corporation who suffered an accidental injury arising out of and in the course of employment by procuring and keeping in force a Workmen's Compensation insurance policy by an approved insurer. On the day in question, National Painting Corporation had such Workmen's Compensation insurance policy in force and effect.
"This court, therefore, concludes that it lacks jurisdiction of this case and theoaction should be dismissed. The subject matter and the parties fall squarely within the provisions of the Oklahoma Workmen's Compensation Act, Title 85 O.S.A. Union Equity with whom National Painting Corporation held its painting contract was a principal employer within the meaning of Section 11, subd. 2, of Title 85 O.S.A. Since Union Equity was a principal employer, under the Oklahoma decisions it cannot be subject to suit at common law by an employee of an independent contractor, which was the status of Woody, the plaintiff herein. Mid-Continent Pipe Line Co. v. Wilkerson, 1948, 200 Okl. 335, 193 P.2d 586; Deep Rock Oil Corporation v. Howell, 1948, 200 Okl. 675, 204 P.2d 282; Jordon v. Champlin Refining Co., 1948, 200 Okl. 604, 198 P.2d 408.
"Under such circumstances, Union Equity's only liability would be that fixed by the Act in the event it failed to require the independent contractor to carry compensation insurance for the protection of its employees. I think Woody's only remedy is before the State Industrial Commission."
As indicated, since appellant has been fully compensated under the Oklahoma Compensation Act, above, and her only remedy was under that Act, we must and do affirm. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617402/ | 132 Mich. App. 93 (1984)
347 N.W.2d 728
TEMPO, INC.
v.
RAPID ELECTRIC SALES & SERVICE, INC.
Docket No. 65442.
Michigan Court of Appeals.
Decided February 7, 1984.
Mohney, Goodrich & Titta, P.C. (by Robert J. Dugan), for plaintiff.
Baxter & Hammond (by Stephen D. Turner and Robert S. Lipak), for defendants.
Before: DANHOF, C.J., and MacKENZIE and M.E. DODGE,[*] JJ.
PER CURIAM.
Plaintiff and counterdefendant West Highland Limited Dividend Housing Association (West) is a partnership of which counterdefendant F.G. Budnick is the general partner. Budnick is also the sole shareholder of Tempo, Inc., which entered into a contract with West for the construction of an apartment project on property owned by West. Tempo, as the general contractor for this construction project, entered into written contracts with defendants and counterplaintiffs Rapid Electric Sales & Service, Inc., Ronald Lindberg, doing business as Rapid Electric, Rapid Electric Sales & Service, and Rapid Heating and Insulation (collectively Rapid) for the performance of all electrical work in connection with the project. Defendant and cross-plaintiff Ronald Lindberg is the sole shareholder of Rapid Electric Sales & Service, Inc.
Rapid filed mechanics' liens on the project property on the ground that Tempo had failed to pay remaining amounts due for electrical work performed. West and Tempo then filed suit seeking an *97 order invalidating the mechanics' liens and a judgment for damages on the ground that Rapid had breached the contracts by failing to perform according to the written plans and specifications and that no further amounts were owed in light of Rapid's defective performance. Rapid filed a counterclaim asserting that the written plans and specifications had been orally modified, that it had performed in accordance with the contracts as modified, and that, therefore, Tempo's failure to pay was not excused. Rapid counterclaimed that plaintiffs were liable for damages for breach of contract or unjust enrichment, and also for fraud. A jury found no cause of action as to plaintiffs' claim for damages but returned a verdict for defendants in the amount of $180,000. The court decided the liens were valid and found defendants entitled to a total lien amount of $102,000. From a judgment incorporating the above, plaintiffs appeal and defendants cross-appeal.
The evidence adduced at trial was essentially as follows. According to defendants, prior to Rapid's submission of bids and execution of the contracts, Lindberg and Budnick orally agreed to some modifications of the written plans and specifications and, at the time the contracts were executed, Budnick told Lindberg these changes would be reflected in written bulletins which had not yet been prepared. When these bulletins were issued, they did not contain the modifications agreed to, but Budnick assured Lindberg that he would take care of the matter and, relying on this assurance, Rapid commenced work. After Rapid had completed much of the work, Tempo insisted that the electrical work conform with the written plans and specifications, denying that the oral modifications existed, and refused to make any further *98 payments unless Rapid gave Tempo a credit against the amounts owed because of the deviations. Rapid refused to give any credit, and Tempo stopped further payments. According to plaintiffs, Budnick never orally agreed to the modifications as claimed by Lindberg and, when Budnick discovered that Rapid was not doing the work in accordance with the written plans and specifications, Budnick asked Rapid to correct the deviations or agree to a credit and, since Rapid refused, Tempo justifiably stopped making any further payments.
I
Plaintiffs made a post-trial motion for a new trial or remittitur, claiming that the court committed evidentiary and instructional errors and that the amount of damages awarded by the jury was excessive. This motion was denied by the court without explanation. Plaintiffs assert that, because the court failed to give its reasons for denying their motion, this Court must remand for an explanation. A trial court is required by court rule to give a concise statement of its reasons in ruling on a motion for a new trial. GCR 1963, 527.7. However, the absence of a court's reasons for denying a motion for a new trial does not necessarily require reversal or a remand. See Frederick v Detroit, 370 Mich. 425, 439; 121 NW2d 918 (1963); Eger v Helmar, 272 Mich. 513, 520; 262 N.W. 298 (1935). The nature of the issues raised in plaintiffs' motion for new trial are not such that this Court needs a statement of the trial court's reasons to determine whether it erred in denying the motion. Thus, we find a remand unwarranted.
II
Turning to the merits of the issues raised in *99 plaintiffs' motion for a new trial and reiterated on appeal, plaintiffs argue that the court committed reversible error in allowing defendants, over plaintiffs' objection, to present testimony to the effect that Tempo had been involved in other disputes with subcontractors arising out of this construction project. More specifically, this testimony indicated that Tempo had similar disputes with other subcontractors as to the scope of the subcontractors' obligations and had refused to pay some other subcontractors. A trial court's rulings on the admissibility of evidence will not be reversed by this Court absent an abuse of discretion. Jackovich v General Adjustment Bureau, Inc, 119 Mich. App. 221, 238; 326 NW2d 458 (1982); Anderson v Harry's Army Surplus, Inc, 117 Mich. App. 601, 608; 324 NW2d 96 (1982). Evidence of similar acts may be admissible as substantive evidence in a civil case under MRE 404(b). Scott v Hurd-Corrigan Moving & Storage Co, Inc, 103 Mich. App. 322, 341-342; 302 NW2d 867 (1981), lv den 412 Mich. 881 (1981); Birou v Thompson-Brown Co, 67 Mich. App. 502, 512; 241 NW2d 265 (1976), lv den 397 Mich. 808 (1976). For example, in a case involving a claim of fraud, such evidence is admissible to prove fraudulent intent and scheme or plan. Scott, supra.
In the present case, at the time this testimony was admitted, defendants' claim of fraud was viable and had not yet been dismissed by the court by directed verdict. The gist of defendants' fraud theory was that Budnick orally agreed to modifications of the written plans and specifications, inducing defendants to submit lower bid figures and to execute the contracts and that Budnick made these representations with the intention of later denying the existence of the oral modifications. *100 The motive asserted by defendants was that Budnick knew the project was over budget and sought to reduce costs by later demanding that defendants' work comply with the more expensive requirements of the written plans and specifications or that defendants agree to a credit against the contract price. Thus, this similar acts testimony was properly admitted as relevant to defendants' claim of fraud. In addition, another issue in the case, as reflected in plaintiffs' closing argument and the court's instructions, was whether there had simply been a mutual misunderstanding between Budnick and Lindberg as to whether oral modifications had been agreed to, and this similar acts testimony was admissible as tending to show the "absence of mistake", MRE 404(b), by suggesting the improbability that Tempo would have had such a number of "mutual misunderstandings" with its subcontractors.
II
Plaintiffs also contended in their motion for a new trial that the trial court erred in excluding their proffered evidence of another lawsuit brought against defendants in which defendants unsuccessfully counterclaimed for damages for harm to business reputation. Plaintiffs sought to introduce evidence of this lawsuit as relevant to disproving defendants' claim for damages for harm to business reputation in the present case. However, in the present case defendants did not seek damages for harm to business reputation in general, but rather more specifically for damages due to the loss of credit and loss of bonding which resulted from Tempo's actions. Plaintiffs in their offer of proof made no showing that it was this other dispute involving defendants, and not Tempo's *101 actions, which was the sole or partial cause of the loss of credit and loss of bonding for which defendants sought damages in the present case. Consequently, plaintiffs' offer of proof failed to establish any connection between the other lawsuit and the particular damages claimed by defendants in the instant case, and therefore the proffered evidence was irrelevant and properly excluded by the trial court. MRE 402.
IV
Plaintiffs also moved for a new trial on the ground that the court erred in failing to instruct the jury that it had granted a directed verdict for plaintiffs on defendants' theory of fraud and claim for exemplary damages and that the jury was, therefore, not to consider these issues. We find no reversible error. Although during voir dire and in his opening statement counsel for defendants stated that defendants were seeking exemplary damages for mental harm suffered by Lindberg, he indicated that the jury could award such damages only if the court so permitted. Defendants' counsel in closing argument did not argue fraud or request exemplary damages. Moreover, under the instructions given by the court, the jury could not possibly have believed that they could find for defendants on a theory of fraud and award exemplary damages. The court instructed the jury that if they found Tempo had breached the contract then Tempo was liable for all damages which naturally, directly, and proximately resulted from the breach or that, if they found no valid contract existed because of a mutual mistake of material fact, they could award Rapid damages for the reasonable value of any work performed which had not been compensated for by Tempo. While ideally the court *102 might have affirmatively instructed the jury not to consider fraud or exemplary damages, the instructions given by the court provided the jury with sufficient guidance and thus reversal is unwarranted. See Huffman v First Baptist Church of Flushing, 355 Mich. 437, 445-447; 94 NW2d 869 (1959).
V
Plaintiffs assert that the court erred in denying their motion for a new trial or remittitur on the ground that the jury's award of damages to defendants was excessive. The jury's award of $180,000 appears to have included an amount for consequential damages since Lindberg testified that Tempo owed $102,000 on the written contract price or $114,000 for the reasonable value of work performed. Plaintiffs argue that the evidence presented by defendants as to consequential damages for loss of credit, lost profits due to loss of bonding, and additional interest due on payments to suppliers was grossly speculative. We disagree.
With respect to damages for loss of credit, Lindberg testified that his bank informed him that, due to the dispute with Tempo, his previously established line of credit was being withdrawn. Consequently, he had to obtain an SBA loan for which the interest rate was higher and would amount to $90,000 more than under his previous credit arrangement. Regarding additional interest, Lindberg testified that Tempo's failure to pay caused Rapid to lose discounts by not being able to pay its suppliers promptly, and a discount of 2 percent on $225,000 was lost, amounting to $4,500. Clearly, these damages figures were based on objective criteria and mathematical calculation, not mere speculation. If Lindberg's calculations were in error, *103 plaintiffs were free to present their own evidence so demonstrating.
Lindberg also testified that Tempo's actions caused Rapid to lose its bonding, which prevented Rapid from being able to bid on other jobs. Lindberg estimated his lost profits at $26,250, which figure he derived by determining which jobs he would have bid on during that period had he had bonding, and estimating that he would have been awarded contracts on one out of every three to four jobs bid, with a profit margin of 3 percent. We find this evidence sufficient to warrant an award of damages for lost profits. While perhaps to some degree speculative, this method of calculating lost profits had a reasonable degree of certainty and was not based solely on conjecture and speculation. Stimac v Wissman, 342 Mich. 20, 28; 69 NW2d 151 (1955); Wolverine Upholstery Co v Ammerman, 1 Mich. App. 235, 244-246; 135 NW2d 572 (1965).
Finally, plaintiffs argue that these damages could have been caused by factors other than Tempo's actions. We find that Lindberg's testimony was sufficient for the jury to conclude that these damages were the natural and proximate result of Tempo's breach. Sattler v Fisher Contracting Co, 30 Mich. App. 617, 622; 186 NW2d 875 (1971). Plaintiffs were free to present their own evidence and to argue that other factors were in fact the cause of these damages.
VI
At the conclusion of the jury trial, the trial court addressed the question of the validity of the mechanics' liens filed by defendants. The liens filed were in the total amount of $161,629. Plaintiffs argued that, since by Lindberg's own testimony *104 only $102,000 was owed on the contract price, the liens were filed in bad faith and consequently defendants forfeited any right to a lien. The trial court instead simply reduced the total lien amount to $102,000. Even where the amount of a lien filed is found to be excessive, the lien is lost only where bad faith is evident; if the error in the amount was due to a good faith mistake, the appropriate remedy is simply to reduce the amount of the lien. Georgia-Pacific Corp v Central Park North Co, 394 Mich. 59, 63-64; 228 NW2d 380 (1975); Morman v Ryskamp, 235 Mich. 140; 209 N.W. 52 (1926). In the present case, defendants submitted to the trial court affidavits reflecting how the lien amounts were calculated. While our review of these affidavits leads us to conclude that an improper method of calculation was used, no bad faith is evident. All of the items listed were for the costs of labor and materials actually incurred by defendants relative to this project, unlike Sacchetti v Recreation Co, 304 Mich. 185, 192; 7 NW2d 265 (1943), relied on by plaintiffs, where the lien included amounts for labor not actually performed and materials not in fact furnished.
VII
The final issue raised by plaintiffs in their appeal is that the court improperly entered a judgment for money damages against not only Tempo, but West as well. Plaintiffs argue that West could not be considered liable on either the breach of express contract or unjust enrichment theories presented to the jury and that the only remedy defendants might have against West is a mechanics' lien. We need not address the substantive merits of this claim for we find that plaintiffs waived any claim of error. At no time prior to *105 submission of the case to the jury did plaintiffs seek the dismissal of West as a party vis-a-vis defendants' claims for monetary damages. Moreover, plaintiffs failed to request any separate instructions relative to the liability of West and, indeed, even stipulated that, for purposes of the instructions and jury deliberations, Tempo and West could be jointly referred to as Tempo and that the jury could return a verdict for Tempo or Rapid, with no further distinction being necessary. Thus, it is clear that, even assuming some or all of the jury's award of $180,000 could not properly be entered against West, the error was of plaintiffs' own doing. "A party cannot sit back and after the jury decides against him claim error after he had been given the fullest opportunity to correct any alleged error at the trial." Baldwin v Nall, 323 Mich. 25, 31; 34 NW2d 539 (1948). We further note that plaintiffs did not raise this claim of error in their motion for new trial or objections to entry of judgment filed soon after the jury's verdict, but rather delayed another five months before filing an additional objection to entry of judgment raising this claim.
VIII
We now address the issues presented by defendants in their cross-appeal, first of which is that the court erred in granting a directed verdict for plaintiffs on defendants' fraud theory of liability and, consequently, refusing to instruct on defendants' fraud theory and claim for exemplary damages for mental harm suffered by Lindberg. Defendants' fraud theory was that, when Budnick orally agreed to modifications of the plans and specifications and promised to incorporate these modifications in written bulletins, he had no present intention *106 to abide by these promises and made these representations to deceive defendants and to induce defendants to make the bids and enter into the contracts. Defendants admit that they have no desire to disturb the jury's $180,000 award of damages for economic losses, and raise this claim of error only for the purpose of procuring a remand on the issue of exemplary damages based on their fraud theory. Thus, the crux of the issue before us is whether defendants were entitled to jury consideration of exemplary damages based on their fraud theory.
In cases involving breach of a commercial contract, exemplary damages are not recoverable, with the only exception being where there is "proof of tortious conduct existing independent of the breach". Kewin v Massachusetts Mutual Life Ins Co, 409 Mich. 401, 420-421; 295 NW2d 50 (1980). In the present case, while defendants did present proof of tortious conduct in the form of fraud, the remaining question is whether that fraudulent conduct was "independent of the breach". Kewin, supra. We find that it was not independent, but rather part of the breach itself and merely demonstrated the bad faith nature of the breach. Kewin, supra, pp 422-423.
The breach asserted by defendants was plaintiffs' failure to pay the remaining amounts owed for defendants' electrical work, but in order to prove this claim defendants were required to show that they performed their contractual obligations and were not themselves in breach, which would have excused plaintiffs' nonpayment. Since defendants' work deviated from the written plans and specifications, defendants had to demonstrate that Budnick had orally agreed to modifications with *107 which defendants had complied. Hence, the representations made by Budnick which formed the basis of defendants' fraud claim were also an essential ingredient of defendants' breach of contract claim, and not independent thereof. That Budnick may have made these representations with no intention of ultimately following through on them merely reflects the bad faith nature of the later breach by refusing to pay because of defendants' noncompliance with the written plans and specifications.
Thus, the present case is similar to Kewin, supra, pp 422-423, where the plaintiff-insured claimed breach of an insurance contract and also alleged deceit and misrepresentation by the defendant-insurer in handling the claim, and the Court held that exemplary damages were not available because no tortious conduct independent of the breach existed. See also Van Marter v American Fidelity Fire Ins Co, 114 Mich. App. 171, 185; 318 NW2d 679 (1982). While defendants rely on Oppenhuizen v Wennersten, 2 Mich. App. 288; 139 NW2d 765 (1966), and White v Production Credit Ass'n, 76 Mich. App. 191; 256 NW2d 436 (1977), lv den 401 Mich. 848 (1977), we note that those decisions predated Kewin, supra, and thus were decided without the benefit of the Kewin Court's clarification that, in cases involving commercial contracts, exemplary damages are recoverable only where the tortious conduct, such as fraud, is independent of the breach. Thus, we decline to treat those decisions as controlling the instant case. Because defendants did not submit proof of fraudulent conduct independent of the breach and therefore are not entitled to recover exemplary damages, the trial court's grant of a directed verdict for plaintiffs on defendants' fraud theory and refusal to *108 instruct on exemplary damages did not constitute reversible error.
IX
The other issue raised by defendants in their cross-appeal is that the court erred when, at the close of the proofs, the court dismissed Budnick as a party. Defendants claim that Budnick should not have been dismisssed because the jury could have found him personally liable based on defendants' fraud theory. We have already determined above that defendants were not entitled to exemplary damages based on their fraud theory and, as to all other damages, defendants have expressed satisfaction with the jury's award of $180,000. Further, we have rejected plaintiffs' claims of error and affirm the judgment of $180,000 entered against Tempo and West. Budnick, as the general partner of West, is already subject to personal liability on defendants' judgment as against West. Commonwealth Capital Investment Corp v McElmurry, 102 Mich. App. 536, 541; 302 NW2d 222 (1980). Thus, any error in dismissing Budnick as a party was harmless and does not warrant disturbance of the judgment entered by the court.
Affirmed. No costs, neither plaintiffs nor defendants having fully prevailed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617434/ | 190 S.W.3d 204 (2006)
HARVEST HOUSE PUBLISHERS, John Ankerberg, and John Weldon, Appellants,
v.
THE LOCAL CHURCH, An Unincorporated Association; Living Stream Ministry, A California Non-Profit Corporation; The Church in Houston, A Texas Non-Profit Corporation, The Church in Arlington, A Texas Non-Profit Corporation; Church in Beaumont, A Texas Non-Profit Corporation; The Church in Corpus Christi, A Texas Non-Profit Corporation; The Church in Dallas, Inc., A Texas Non-Profit Corporation; Church in Denton, Inc., A Texas Non-Profit Corporation; The Local Church in El Paso, A Texas Non-Profit Corporation; The Church in Fort Worth, Inc., A Texas Non-Profit Corporation; The Church in Huntsville, Inc., A Texas Non-Profit Corporation; The Church in Plano, *205 A Texas Non-Profit Corporation; Church in Odessa A Texas Non-Profit Corporation; The Church in Richardson, A Texas Non-Profit Corporation; The Church in San Antonio, Inc., A Texas Non-Profit Corporation; The Church in Texarkana A Texas Non-Profit Corporation; The Church in Tyler, A Texas Non-Profit Corporation; The Church in Fort Stockton, A Texas Non-Profit Corporation; Church in Laredo, A Texas Non-Profit Corporation; Church in Albuquerque, A New Mexico Non-Profit Corporation; The Church in Anaheim, A California Non-Profit Corporation; The Church in Arcadia, A California Non-Profit Corporation; The Church in Cerritos, A California Non-Profit Corporation; The Church in Atlanta, Inc., A Georgia Non-Profit Corporation; The Church in Baton Rouge, Inc., A Louisiana Non-Profit Corporation; Church in Bellevue, A Washington Non-Profit Corporation; The Church in Bellingham, A Washington Non-Profit Corporation; The Church in Berkeley, The Church in Birmingham, An Alabama Non-Profit Corporation; Church in Boca Raton, Inc., A Florida Non-Profit Corporation; The Church in Boise, An Idaho Non-Profit Corporation; The Church in Cambridge, Inc., A Massachusetts Non-Profit Corporation; The Church in Cary, A North Carolina Non-Profit Corporation; The Church in Chula Vista, A California Non-Profit Corporation; The Church in College Park, A Maryland Non-Profit Corporation; The Church in Cyupress, A California Non-Profit Corporation; The Church in Davis, A California Non-Profit Corporation; The Church in Diamond Bar, A California Non-Profit Corporation; The Church in Dunn Loring, A Virginia Non-Profit Corporation; Church in El Monte, A California Non-Profit Corporation; The Church in Eugene, An Oregon Non-Profit Corporation; The Church in Fairborn, An Ohio Non-Profit Corporation; The Church in Fresno, Inc., A California Non-Profit Corporation; The Church in Fullerton Corporation, A California Non-Profit Corporation; The Church in Huntington Beach, A California Non-Profit Corporation; Church in Irvine, Inc., A California Non-Profit Corporation; Church in Jackson, A Mississippi Non-Profit Corporation; The Church in Jacksonville, Inc., A Florida Non-Profit Corporation; The Church in Kansas City, Inc., A Missouri Non-Profit Corporation; The Church in Lafayette, A Louisiana Non-Profit Corporation; The Church in Little Rock, An Arkansas Non-Profit Corporation; The Church in Long Beach, A California Non-Profit Corporation; Church in Los Angeles, A California Non-Profit Corporation; The Church in Memphis, A Tennessee Non-Profit Corporation; The Church in Miami, Inc., A Florida Non-Profit Corporation; Church in Milwaukee, A Wisconsin Non-Profit Corporation; The Church in Mission Viejo, Inc., A California Non-Profit Corporation; The Church in Montebello, A California Non-Profit Corporation; Church in Monterey Park, A California Non-Profit Corporation; The Church in Moreno Valley, A California Non-Profit Corporation; The Church in Nashville, A Tennessee Non-Profit Corporation; The Church in Newington, Inc., A Connecticut Non-Profit Corporation; The Church in North Providence, A Rhode Island Non-Profit Corporation; The Church in Nutley, A New Jersey Corporation; The Church in Oklahoma City, Inc., An Oklahoma Non-Profit Corporation; *206 The Church in Orlando, A Florida Non-Profit Corporation; The Church in Palatine, An Illinois Non-Profit Corporation; Church of God Whish is at Philadelphia, A Pennsylvania Non-Profit Corporation; The Church in Pleasant Hill, A California Non-Profit Corporation; Church in Portland, An Oregon Non-Profit Corporation; The Church in Pullman, A Washington Non-Profit Corporation; The Local Church in Raleigh, A North Carolina Non-Profit Corporation; The Church in Redding, A California Non-Profit Corporation; The Church in Riverside, A California Non-Profit Corporation; Church in Roseville, A California Non-Profit Corporation; The Church in Sacramento, A California Non-Profit Corporation; The Church in Salt Lake City, A Utah Non-Profit Corporation; Church in San Diego, A California Non-Profit Corporation; The Church in San Francisco, Inc., A California Non-Profit Corporation; Assembly of the San Gabriellers, A California Non-Profit Corporation; The Church in San Jose, A California Non-Profit Corporation; The Church in Santa Clara, A California Non-Profit Corporation; The Church in Santa Clarita, A California Non-Profit Corporation; The Church in Seattle, A Washington Non-Profit Corporation; Church in Shreveport, A Louisiana Non-Profit Corporation; The Church in Spokane, A Washington Non-Profit Corporation; The Church in Streamwood, An Illinois Non-Profit Corporation; The Church in Tacoma, A Washington Non-Profit Corporation; The Church in Tampa, Inc., A Florida Non-Profit Corporation; Church in Tempe, Inc., An Arizona Non-Profit Corporation; The Church in Thousand Oaks, A California Non-Profit Corporation; The Church in Torrance, A California Non-Profit Corporation; The Church in Tucson, Inc., An Arizona Non-Profit Corporation; Church in Tulsa, An Oklahoma Non-Profit Corporation; The Church in Victorville, A California Non-Profit Corporation; The Church in Vista, A California Non-Profit Corporation; The Church in Wichita, Inc., A Kansas Non-Profit Corporation; Church in Yorba Linda, A California Non-Profit Corporation, Appellees.
No. 01-04-00231-CV.
Court of Appeals of Texas, Houston (1st Dist.).
January 5, 2006.
Rehearing Denied May 18, 2006.
*208 Lynne Liberato, for Harvest House Publishers et al.
J. Shelby Sharpe and Thomas J. Williams, for Donald D. Jackson.
*209 Douglas M. Selwyn and Craig Trively Enoch, for The Local Church et al.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
OPINION
SHERRY RADACK, Chief Justice.
This is a libel suit brought by a church against a publisher and two authors after the church was included in a book about "religious cults," as that term is defined in the book. The publisher and authors moved for summary judgment, which the trial court denied. This interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (Vernon Supp.2005). Because we agree that the passages in the book that refer to the church are not, as a matter of law, defamatory, we reverse the judgment of the trial court and render judgment that the church take nothing from the publisher and authors.
BACKGROUND
A. An Overview of the Encyclopedia of Cults and New Religions
John Weldon and John Ankerberg ["the authors"] wrote a book entitled Encyclopedia of Cults and New Religions ["the book"], which was published by Harvest House Publishers ["the publisher"]. The book is 700 pages long. It begins with a section entitled "How to Use this Book," which is followed by a 16-page Introduction, 57 separate chapters that describe various religious groups, including a chapter on appellees, The Local Churches and Living Stream Ministry [collectively, "the church"], and concludes with a 66-page section entitled, "Doctrinal Appendix."
The church is not named at all in the Introduction. The chapter on the church is 1 and 1/4 pages long. Living Stream Ministry, the publishing voice of the church, is mentioned once in the chapter.
The Doctrinal Appendix mentions the church twice and Living Stream Ministry once. The first mention of the church is in a chart with 15 other religious groups under the title "Different Concepts of God." The church is next mentioned in a list of 50 other religious groups under the subcategory "Religions, Cults, and the Deity of Christ." Living Stream Ministry is mentioned in a footnote, as the source of a quote from one of the church's founders.
PROPRIETY OF TRIAL COURT'S DENIAL OF SUMMARY JUDGMENT
The authors and publisher moved for a traditional summary judgment, contending that (1) the language of the book is not legally capable of any defamatory meaning, (2) the allegedly defamatory statements were not made with "actual malice," and (3) the statements were protected by the free speech and press provisions of the United States and Texas Constitutions.[1]
A. Standard of Review
When reviewing the denial of summary judgment, we apply the same well-known standards applicable to the granting of summary judgment. See Associated Press v. Cook, 17 S.W.3d 447, 451 (Tex.App.-Houston [1st Dist.] 2000, no pet.). For their traditional summary judgment motion, the authors and publisher had the burden to show that no genuine issue of material fact existed and that they were entitled to judgment as a matter of law. See TEX.R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). A *210 defendant who conclusively negates at least one of the essential elements of a cause of action is entitled to summary judgment on that cause of action. Swilley, 488 S.W.2d at 67. Likewise, a defendant who conclusively establishes each element of an affirmative defense is entitled to summary judgment. Id. Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant. Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.-Houston [1st Dist.] 1993, writ denied). The nonmovant must respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Marchal, 859 S.W.2d at 412. The summary judgment should be granted if any of the theories advanced in the motion for summary judgment is meritorious. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).
B. Is the Language of the Book Defamatory as to the Church?
In their first issue on appeal, the publisher and authors contend that the language of the book cannot, as a matter of law, be defamatory. To maintain a cause of action for defamation, the plaintiff must prove that the defendant (1) published a statement (2) that was defamatory concerning the plaintiff (3) while acting with either actual malice, if the plaintiff was a public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). Whether a publication is capable of being defamatory is initially a question of law to be determined by the court. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex.2000). To make this determination, the trial court should consider whether the words used are reasonably capable of defamatory meaning by considering the allegedly defamatory statement as a whole. See Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654-55 (Tex.1987). The determination is based on how a person of ordinary intelligence would perceive the entire statement. See also Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex.2002). This question is submitted to a jury only if the contested language is ambiguous or of doubtful import. See Denton Pub. Co. v. Boyd, 460 S.W.2d 881, 884 (Tex.1970).
1. Is the Introduction Defamatory?
The church claims that it has been defamed by certain references made in the book's Introduction. Specifically, paragraphs 15-17 of the church's petition allege:
15. Within one year of the date of this Complaint, defendant published the Encyclopedia. The Encyclopedia consists primarily of descriptions of various religious organizations identified by the authors as cults. Preceding these descriptions is a lengthy, introductory section which informs the readers that, all of "the groups contained herein deserve the title" "cult." Under a subheading entitled "Characteristics of Cults," the introduction offers the reader a numbered list of negative attributes that the authors attribute to the "cults" described in the text. The introduction also includes many other statements attributing misdeeds and other approbations to the groups listed in the Encyclopedia.
16. Among other things, the Encyclopedia's introduction specifically attributes to "cults" and therefore to Plaintiffs' the following:
A. Subjecting members to "physical harm" (Page XXIV).
*211 B. "[F]raud or deception concerning" "fundraising" and "financial costs." (Page XXIV).
C. "[A]cceptance of shamanism." (Page XXIV).
D. "[E]ngaged in drug smuggling and other criminal activity, including murder." (Page XXV).
E. "[D]enied their followers blood transfusions and medical access." (Page XXV).
F. "[E]ncouraged prostitution." (Page XXV).
F. "[S]ometimes raped women." (Page XXV).
G. "[M]olested children." (Page XXV).
H. "[B]eaten their disciples." (Page XXV).
I. "[P]ractices black magic and witchcraft." (Page XXV).
17. The Encyclopedia's introduction expressly and implicitly imputes these "Characteristics of Cults" to the religious organizations described in the text. The language, layout, tone and tenor of the introduction is designed to, and does, cause a reasonable reader to conclude that the organizations described in the Encyclopedia were selected for inclusion therein precisely because they possess the "Characteristics of Cults" and commit the misdeeds listed. Furthermore, the authors expressly characterize their descriptions of Plaintiffs as factual: "Facts are facts." (Page XIX).
In their motion for summary judgment, the publisher and authors argue that the Introduction section of the book cannot be defamatory, as a matter of law, because (1) "the foundational context of the Encyclopedia centers on doctrinal and apologetic issues of theology," and (2) the introduction cannot be reasonably interpreted to defame every group in the book. To determine these issues, we consider first whether the label "cult" is actionable. Then, we turn to the issue of whether the negative attributes and practices attributable to "cults" are actionable.
a. Is being labeled a "cult" actionable?
The Introduction of the Encyclopedia defines a "cult" as "a separate religious group generally claiming compatibility with Christianity but whose doctrines contradict those of historic Christianity and whose practices and ethical standards violate those of biblical Christianity." In their motion, the publisher and authors claim that the Introduction "centers on doctrinal and apologetic issues." We agree. Under the Establishment Clause of the First Amendment, civil courts are prohibited from deciding theological matters, or interpreting religious doctrine, or making matters of religious belief the subject of tort liability. See Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 707, 96 S. Ct. 2372, 2379, 49 L. Ed. 2d 151 (1976).
The issue of whether a group's doctrines are compatible with Christianity depends upon the religious convictions of the speaker. "Whether [a] statement of religious doctrine or belief is made honestly or in bad faith is of no moment, because falsity cannot be proved." Tilton v. Marshall, 925 S.W.2d 672, 679 (Tex.1996). "As such, no jury can be allowed to determine [the truth or falsity of one's religious beliefs] for `[w]hen triers of fact undertake that task, they enter a forbidden domain.'" Id. at 680 (quoting United States v. Ballard, 322 U.S. 78, 86, 64 S. Ct. 882, 886, 88 L. Ed. 1148 (1944)).
In Tran v. Fiorenza, 934 S.W.2d 740, 742 (Tex.App.-Houston [1st Dist.] 1996, writ denied), the plaintiff, a Catholic priest, sued Bishop Fiorenza for defamation because *212 the bishop wrote a letter in which he stated that the plaintiff had been excommunicated by the Catholic church. This Court held that it could not hear the plaintiff's defamation claim because, to decide whether a tort had, in fact, occurred, we would have to decide whether the plaintiff had been excommunicated, a matter of ecclesiastical concern. Id. at 744. The First and Fourteenth Amendments of the United States Constitution prohibit civil courts from deciding such ecclesiastical matters. Id. at 743.
Therefore, we conclude that being labeled a "cult" is not actionable because the truth or falsity of the statement depends upon one's religious beliefs, an ecclesiastical matter which cannot and should not be tried in a court of law. See Sands v. Living Word Fellowship, 34 P.3d 955, 960 (Alas.2001) (holding that reference to church as "cult" and church member as "cult recruiter" not actionable as defamation because statements convey religious belief and opinion and are not capable of being proven true or false).
b. Is the description of the negative characteristics of a cult actionable?
The Introduction of the book contains a list of 12 "characteristics of cults." The 12 characteristics of cults include the following.
1. Despite the claim to be a friend of Christianity, the new religious are rejecting or hostile to Christianity.
2. Despite the claim to allow for individual expression and to respect members as individuals, we discover a destructive authoritarianism and sanction-oriented mentality: members must obey explicitly or be punished or ex-communicated.
3. Despite a claim to interpret the Bible properly, the Bible is systematically misinterpreted, either through additional revelation that distorts proper biblical interpretation or through alien (mystical, symbolic, subjective) methods of interpretation.
4. Despite a claim to care for members, members are often subject to psychological, physical and spiritual harm through cult dynamics that reject biblical, ethical and pastoral standards.
5. Despite a claim to allow independent thinking, there is a restriction of independent thought, a rejection of reason and logic, and often unquestioning obedience to the leader or organization.
6. Despite public claim for openness and tolerance to other religions, exclusivism and intolerance are taught privately.
7. Despite the claim for independent verification and objective evidence in support of a group's beliefs and practices, the evidence is almost exclusively based in undocumented claim or the subjective realm mystical experience or powerful occult experience.
8. Despite the claim to offer true spirituality and a genuine experience of God or ultimate reality, and despite the claim not to be occult, what is offered is often occult practices and beliefs.
9. Despite the claim for accurately representing one's history and to give a true portrait of a group's leader(s), there is a distortion reinvention and cover-up of a group's history and leader for purely advantageous interests.
10. Despite the claim to trust others, cults may be paranoid or persecution conscious, and they may be oppositional or alienated from the culture, having beliefs, values and practices opposed to those in the dominant culture.
11. Despite the claim for honesty there is use of intimidation or deception on both members and outsiders. There is often fraud or deception concerning a *213 group's true teachings, the life of the founder, the group's history, fund-raising, front groups and financial cost.
The section of the book on the "characteristics of cults" concludes with the following paragraph, upon which most of the church's libel claims are based:
When people are manipulated in different ways for ulterior motives, as cults are shown to do in this Encyclopedia, is not this to be condemned? Those cult leaders or gurus who have encouraged their followers to oppose moral convention, denied their followers blood transfusions and medical access, encouraged prostitution for making converts, sometimes raped women, beaten their disciples, molested children, practices black magic and witchcraft, engaged in drug smuggling and other criminal activity, including murder do they not deserve the condemnation of us all? And such things have occasionally happened even in what many people regard as the "respectable" cults.
The church contends that some of the conduct mentioned in connection with the characteristics of cults prostitution, rape, beating, molesting children, drug smuggling, and murder are facts that can be proven false, and, therefore, are actionable under Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695, 2706-07, 111 L. Ed. 2d 1 (1990) (holding that statements of "opinion" may be actionable if containing facts provable as false).
The publisher and authors, however, argue that the characteristics of cults including the criminal acts that the church contends are provable as false under Milkovich "cannot reasonably be interpreted to defame every group in the book." In other words, the publisher and authors argue that the second element of a defamation claim that a defamatory statement was made concerning the plaintiff cannot be met. We agree.
If a statement does not concern appellants, it cannot defame them, nor can it injure their reputations. See Newspapers Inc. v. Matthews, 161 Tex. 284, 339 S.W.2d 890, 893 (1960). For a plaintiff to recover for the publication of an allegedly libelous statement, the asserted libel must refer to some ascertained or ascertainable person and that person must be the plaintiff. Id. The publication need not make direct reference to the plaintiff individually; reference may be indirect, and it is not necessary that every listener understand it, so long as there are some who reasonably do so. Davis v. Davis, 734 S.W.2d 707, 711 (Tex. App.-Houston [1st Dist.] 1987, no writ).
Under the group libel doctrine, a plaintiff has no cause of action for a defamatory statement directed to some or less than all of the group when there is nothing to single out the plaintiff. Eskew v. Plantation Foods, Inc., 905 S.W.2d 461, 462 (Tex.App.-Waco 1995, no writ); Wright v. Rosenbaum, 344 S.W.2d 228, 231-33 (Tex. Civ.App.-Houston 1961, no writ) (holding that statement that "one of the four ladies" stole dress, but not naming guilty person, was not slanderous of any particular person); Bull v. Collins, 54 S.W.2d 870, 871-72 (Tex.Civ.App.-Eastland 1932, no writ) (holding that statement that either A or B stole the money, without specifying guilty party, not slanderous); Harris v. Santa Fe Townsite Co., 58 Tex. Civ. App. 506, 125 S.W. 77, 80 (1910, writ ref'd) (holding that statement that an unnamed "band of nine women" from South Silsbee cut a fence was not libelous because 15 women lived in South Silsbee).
In Eskew, the chief executive officer of the defendant company stated in the newspaper that "[I]rregularities in the company's maintenance department prompted *214 personnel changes.... Everyday we hire people, let people go and people quit.... I don't want to take the chance of coloring the innocent with any kind of accusation. I don't think everyone we let go had something to do with this. But some of those we let go, we think, were involved." 905 S.W.2d at 462. The plaintiff, one of the employees the defendant company had fired, sued for libel, contending that the chief executive officer's statement identified plaintiff as a wrongdoer even though he was not named in the story. Id. The court of appeals stated that "[the chief executive officer's] statement did not malign the entire group and is clearly referable only to an unidentified portion of a group." Id. at 463. As such, summary judgment was proper for the defendant company. Id. at 464.
Thus, in order for an alleged defamatory statement that is directed to an unidentified group of individuals to be actionable, it must create the inference that all members of the group have participated in the activity that forms the basis of the libel suit. If the statement refers to some, but not all members of the group, and does not identify to which members it refers, it is not a statement of and concerning the plaintiff.
The church argues that, under Gibler v. Houston Post Co., 310 S.W.2d 377, 385 (Tex.App.-Houston [1st Dist.] 1958, writ ref'd n.r.e.), the statements regarding the alleged criminal acts are actionable, even if the church is not directly mentioned in connection with the criminal acts. Under Gibler, a libel plaintiff may maintain a cause of action, even if not named in the publication, if the language of the publication and the surrounding circumstances are such that friends and acquaintances of the plaintiff recognize that the publication is about the plaintiff. Id. In its petition, the church alleges that the book has defamed every group named therein. Specifically, the church alleges that the Introduction of the book "is designed to, and does, cause a reasonable reader to conclude that the organizations described in the Encyclopedia were selected for inclusion therein precisely because they possess the `Characteristics of Cults' and commit the misdeeds listed."
To the contrary, the Introduction of the book specifically states that "[t]he list [of the characteristics of a cult] is not exhaustive. Not all groups have all the characteristics and not all groups have every characteristic in equal measure...." The appropriate inquiry in determining what a reasonable reader would believe, for the purposes of libel, is objective, not subjective. See New Times v. Isaacks, 146 S.W.3d 144, 162 (Tex.2004). The question is not whether some actual readers were misled by the publication, as they inevitably will be, but whether the hypothetical reasonable reader could be. Id. Moreover, the prefatory language "[t]hose cult leaders or gurus" is restrictive focused only upon those leaders who commit such acts, not on all leaders or gurus. In sum, considering the Introduction as a whole, we cannot conclude that a reasonable reader could believe that all groups named in the book participate in the criminal activities that plaintiffs claim as the basis of their libel action. No reasonable reader could conclude that the book accuses the church, and, in fact, every other church named in the book, of rape, murder, child molestation, drug smuggling, etc. As such, the allegedly libelous statements in the Introduction are not "of and concerning the church" and are not actionable.
2. Is the Doctrinal Appendix Defamatory?
The church also contends in its petition that it has been defamed by certain portions of language in the Doctrinal Appendix. *215 Specifically, paragraph 18 of the petition alleges the following:
18. The Encyclopedia also includes a section entitled "Doctrinal Appendix." This Section attacks the groups included in the Encyclopedia, including Plaintiffs with further defamatory statements including the following:
A. The groups included in the book "accept occult powers." (Page 708);
B. The groups included in the book are "associated with idolatry" and "universally promote idolatry" with its inevitable outcome "human sacrifice." (Pages 710, 721);
C. The groups included in the book engage in "murder," "child sacrifice," "prostitution," and "snake worship" (Pages 714, 722).
In their motion for summary judgment, the publisher and authors argue that the Doctrinal Appendix section of the book cannot be defamatory, as a matter of law, for the same reasons that the Introduction is not defamatory, i.e., because (1) "the foundational context of the Encyclopedia centers on doctrinal and apologetic issues of theology" and (2) the Doctrinal Appendix cannot be reasonably interpreted to defame every group in the book. To determine these issues, we consider first whether being accused of "accepting occult powers" and "promoting idolotry" is actionable. Then, we turn to the issue of whether the negative attributes and practices attributable to "cults" are actionable.
a. Is being accused of "accepting occult powers" and "promoting idolatry" actionable?
The Doctrinal Appendix defines "idolatry" as the "worship of false gods and spirits" and occult [demonic] powers and practices are associated, in the text, with idolatry. The section of the Doctrinal Appendix on the occult and idolatry is entitled "The Occult: The Modern Spiritual Counterfeit."
As with the definition of the term "cult," which we discussed earlier, whether someone worships a false god or accepts occult powers and practices depends upon the speaker's religious beliefs. "To avoid conducting `heresy trials,' courts may not adjudicate the truth or falsity of religious doctrines or beliefs." Tilton, 925 S.W.2d at 678-79. "Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs." Unites States v. Ballard, 322 U.S. 78, 86-87, 64 S. Ct. 882, 886-87, 88 L. Ed. 1148 (1944).
Because the statement concerns the speaker's religious beliefs, which cannot be proved true or false, an allegation that one is an idolator and accepts occult powers is not actionable.
b. Are the statements regarding human sacrifice, murder, child sacrifice, prostitution, and snake worship actionable?
The publisher and authors argue that the occult practices that are mentioned in the Doctrinal Appendix, "cannot reasonably be interpreted to defame every group in the book." In other words, the publisher and authors argue again that the second element of a defamation claim that a defamatory statement was made concerning the plaintiff cannot be met. Again, we agree.
None of the passages alleged to be defamatory in the Doctrinal Appendix mention the church at all. The occult practice of human sacrifice, which gives rise to one of the church's libel allegations, is mentioned in the following passage:
As [the Bible verses referenced earlier] suggest, in ancient Israel occult practices were associated with idolatry *216 (worship of false god and spirits) and inevitably led to human sacrifice, as is increasingly occurring in the Western world today.
This passage does not accuse the church, or indeed any of the organizations named in the book, of human sacrifice. Instead, it points out that, in ancient Israel, idolatry led to human sacrifice, in the authors' opinion. As such, the statement regarding human sacrifice is not of and concerning the church.
The occult practices of child sacrifice and murder, which give rise to another of the church's libel allegations, are mentioned in a section of the Doctrinal Appendix that lists what the authors refer to as "the capacities or methods of fallen angels [demons]." Again, the passage does not refer to the church at all, or any other organization in the book. There is nothing in this list of "demonic powers" to lead a reasonable reader to conclude that the church possesses or uses these powers to commit child sacrifice or murder. As such, the passage in the Doctrinal Appendix that refers to child sacrifice and murder is not of and concerning the church.
The occult practices of child sacrifice, prostitution, and snake worship are mentioned in the following passage from the Doctrinal Appendix.
IDOLATRY (Gr.eidololatria). Idolatry in ancient times included two forms of departure from the true religion: the worship of false gods (whether by means of images or otherwise); and the worship of the Lord by means of images. All the nations surrounding ancient Israel were idolatrous.... The gods had no moral character whatsoever, and worship of them carried with it demoralizing practices, including child sacrifice, prostitution and snake worship....
Again, this clearly does not refer to the church or any of the organizations named in the book. It is a historical reference to ancient Israel and what the authors perceive as the result of idolatry in that day and age. As such, it is not a statement of and concerning the church and is not actionable.
In sum, considering the Doctrinal Appendix as a whole, we cannot conclude that a reasonable reader would believe that all groups named in the book participate in the "occult practices" that plaintiffs claim as the basis of their libel action. Because the allegedly libelous statements in the Doctrinal Appendix are not of and concerning the church, they are not actionable.
3. Is the Chapter regarding "The Local Church" Defamatory?
The church does not allege that the chapter on it contains defamatory language. Instead, it argues that the fact that there is a chapter on it would lead a reasonable person to conclude that it "routinely engage[d] in the activities set forth in paragraph 16 and 18 above." Specifically, the petition alleges the following:
19. The Encyclopedia contains a section entitled "The Local Church." This section also expressly identifies Living Stream Ministry. When read in conjunction with the Encyclopedia's introduction and appendix, this section conveys false and defamatory message [sic] that the Local Church, the Churches, and Living Stream Ministry routinely engage in the activities set forth in paragraph 16 & 18 above. The section of the Encyclopedia entitled "The Local Church" is reasonably read in conjunction with and in the context of the Encyclopedia's introduction and appendix, including the "Characteristics of Cults" subsection. The contents of these sections, including the defamatory statements described herein, were understood *217 by readers to refer to and concern the Plaintiffs herein.
20. The above-described statements are defamatory per se in that they falsely impute immoral, illegal and despicable actions to Plaintiffs. In truth and in fact no Plaintiff has ever engaged in such actions. The false and defamatory statements set forth herein expose Plaintiffs to hatred, contempt, ridicule, and financial injury.
The gist of the church's complaint is that, by calling it a "cult" and including a chapter on it in the book, the publisher and authors have accused it of every "immoral, illegal and despicable action" mentioned in the book. However, as we stated earlier, under the group libel doctrine, a plaintiff has no cause of action for a defamatory statement directed to some or less than all of the group when there is nothing to single out the plaintiff. Eskew, 905 S.W.2d at 462. We have already held that nothing in the book singles out the church as having committed the "immoral, illegal, and despicable" actions alleged in its petition. Simply being included in a group with others who may have committed such "immoral, illegal, and despicable" actions does not give rise to a libel claim.
CONCLUSION
Because the allegedly libel statements are not defamatory, as a matter of law, we sustain the publisher and authors' first issue on appeal. Accordingly, we need not address the remaining issues and decline to do so.
We reverse the judgment of the trial court and render judgment that the church take nothing from the publisher and authors.
NOTES
[1] See U.S. CONST. amends. I, XIV; TEX. CONST. art. 1, §§ 8, 29. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920135/ | 921 So. 2d 385 (2005)
Geoffrey Alan BRADLEY, Appellant
v.
STATE of Mississippi, Appellee.
No. 2002-KA-00697-COA.
Court of Appeals of Mississippi.
November 15, 2005.
*386 Michael C. Hester, Long Beach, attorney for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, for appellee.
EN BANC.
*387 MYERS, P.J., for the Court.
¶ 1. Geoffrey Alan Bradley was found guilty of two counts of sexual battery and two counts of touching a child for lustful purposes by a jury in the Circuit Court of Harrison County, First Judicial District on March 8, 2002. The trial court sentenced Bradley to thirty years on each count of sexual battery and fifteen years on each count of touching of a child for lustful purposes, with sentences to run concurrently serving a total of thirty years. Bradley now appeals to this Court raising the following four issues:
I. WHETHER THE TRIAL COURT COMMITTED ERROR WHEN IT GRANTED THE STATE'S MOTION IN LIMINE TO PRESENT THE TESTIMONY OF THE STATE'S MINOR WITNESSES VIA CLOSED CIRCUIT TV.
II. WHETHER THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED BRADLEY'S MOTION FOR DIRECTED VERDICT.
III. WHETHER THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED THE APPELLANT'S REQUEST FOR PEREMPTORY INSTRUCTION AND HIS MOTION FOR JNOV.
IV. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT'S MOTION FOR A NEW TRIAL.
¶ 2. Finding no reversible error, we affirm the judgment of the circuit court.
FACTS
¶ 3. In late January of 2002, C.H. and H.H. were taken to Bradley's home for the purpose of him babysitting them while their mother attended school. We will refer to the daughters as C.H., who was five-years old at the time, and H.H., who was three-years old at the time. Both C.H. and H.H. were sick and therefore could not attend school that day. Their mother, Donna, knew Bradley from church, and had heard that he was a babysitter. Donna's husband, Kirk, dropped the two girls off at Bradley's apartment that morning. Once Donna finished classes she picked the girls up from Bradley's apartment. Donna noticed that C.H. was wearing different clothes than those she was wearing that morning. Donna inquired about this and Bradley simply stated that C.H. was hot so she changed clothes. Donna did not think much about this, because the two girls were sick and running fevers.
¶ 4. Approximately one month later, Donna had heard some rumors regarding Bradley and other children. On February 28, 2002, as Donna was dressing C.H. and H.H. for school, she began questioning them about their babysitters. She asked the two girls which ones they liked and what sort of games they played. At that point, C.H. and H.H began telling their mother what types of games they played with Bradley, which made it evident that Bradley had sexually abused the two girls. The record and the briefs detailed various specific acts of the abuse which we have no desire to repeat here. However, we can say that the State produced sufficient testimony and evidence at the trial for the jury to return a verdict of guilty on all four counts. Among those testifying for the State were the girls' parents, a detective familiar with sexual abuse in children and the girls' pediatrician, Dr. Donald LaGrone. Dr. LaGrone testified that his examinations showed no physical manifestation of sexual abuse, but since his exam was over a month later, he would not expect any physical signs.
LEGAL ANALYSIS
I. WHETHER THE TRIAL COURT COMMITTED ERROR WHEN IT *388 GRANTED THE STATE'S MOTION IN LIMINE TO PRESENT THE TESTIMONY OF THE STATE'S MINOR WITNESSES VIA CLOSED CIRCUIT TV.
¶ 5. Bradley asserts that the trial court committed error when it granted the State's request to allow the minor children to testify via closed circuit television pursuant to M.R.E. 617(a). The referenced rule provides:
Upon motion and hearing in camera, the trial court may order that the testimony of a child under the age of sixteen (16) years that an unlawful sexual act, contact, intrusion, penetration or other sexual offense was committed upon him or her be taken outside of the courtroom and shown in the courtroom by means of closed-circuit television upon a finding that there is a substantial likelihood that the child will suffer traumatic emotional or mental distress if compelled to testify in open court and, in the case of a criminal prosecution, if compelled to testify in the presence of the accused.
M.R.E. 617(a).
The State contends that adequate evidence was presented during a hearing which met all the requirements of M.R.E. 617(a).
STANDARD OF REVIEW
¶ 6. The standard of review for both the admission or exclusion of evidence is abuse of discretion. Harrison v. McMillan, 828 So. 2d 756, 765(¶ 27) (Miss. 2002). Even if this Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party. Gibson v. Wright, 870 So. 2d 1250, 1258(¶ 28) (Miss.Ct.App.2004).
DISCUSSION
¶ 7. In order for the State to use the closed circuit television, as discussed in M.R.E. 617(a), it must make an adequate showing of necessity. Griffith v. State, 584 So. 2d 383, 387 (Miss.1991). The trial court must hear evidence to determine whether one-way closed circuit television testimony of the child is necessary to protect the welfare of the child witness. J.L.W.W. v. Clarke County Dep't. Of Human Services by Barnett, 759 So. 2d 1183, 1192(¶ 7) (Miss.2000). The trial court must go further to determine that trauma to the child witness would occur from the presence of the defendant and not merely from the courtroom in general. Id. at 1192 (¶ 7). The trial court must then determine that the emotional distress of the child caused by the presence of the defendant is more than mere nervousness. Id. See Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990).
¶ 8. In the present case the trial court conducted a hearing, outside the presence of the jury, in order to make a ruling regarding the giving of testimony of the children by closed circuit television. The parents of C.H. and H.H. testified as to the children's fears and anxiety regarding testifying. They went further to discuss that both children feared Bradley because of threats which he made at the time of the abuse. Lori Jalbert, the court advocate at the Child Advocacy Center, also testified regarding the children's fear of coming to court with everyone looking at them and seeing Bradley. After hearing all the evidence, the trial court ruled that there was sufficient evidence to support that there was a substantial likelihood that C.H. and H.H. would suffer traumatic and emotional distress if they were compelled to come into court and testify. These witnesses established that both children were frightened of Bradley, more than just nervousness, and that the use of closed circuit television for their testimony was necessary for their welfare. Therefore, we find *389 that the trial court's ruling was correct, and we affirm the trial court's ruling.
II. WHETHER THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED BRADLEY'S MOTION FOR DIRECTED VERDICT.
III. WHETHER THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED BRADLEY'S REQUEST FOR A PEREMPTORY INSTRUCTION AND HIS MOTION FOR JNOV.
IV. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT'S MOTION FOR A NEW TRIAL.
¶ 9. We have determined that it is sufficient to address Bradley's last three issues together.
¶ 10. Bradley contends that since C.H. and H.H.'s testimony at trial was different from their previous version of the incident then the trial court erred in not granting a directed verdict. The State argues that this contention is without merit. The State claims that the testimony of the young girls concisely and in rather innocent terms gives the facts of Bradley's actions.
STANDARD OF REVIEW
¶ 11. The standard of review of an overruled motion for a directed verdict or JNOV, as a matter of law, with the legal sufficiency of the evidence being viewed in a light most favorable to the State. Johnson v. State, 904 So. 2d 162, 166(¶ 7) (Miss. 2005); McClain v. State, 625 So. 2d 774, 778 (Miss.1993). All credible evidence which supports the defendant's guilt is accepted as true, and all favorable inference are reconciled in the State's favor. Id. The only way this Court will overturn the ruling of a trial court denying a motion for a directed verdict or JNOV is if after looking at all the evidence a reasonable jury could only have found the defendant not guilty. Id.
¶ 12. The standard of review for deciding whether or not a jury verdict is against the overwhelming weight of the evidence is that this Court must accept the evidence which supports the verdict as the truth and will reverse only if convinced that the trial court abused its discretion in not granting a new trial. Price v. State, 898 So. 2d 641, 652(¶ 26) (Miss.2005). A new trial will not be ordered unless we are convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would be to sanction an unconscionable injustice. Pearson v. State, 428 So. 2d 1361, 1364 (Miss.1983). This high standard is necessary because any factual disputes are properly resolved by the jury not by an appeals court. McNeal v. State, 617 So. 2d 999, 1009 (Miss.1993).
DISCUSSION
¶ 13. Bradley contends that since C.H. and H.H's testimony at trial differed from their previous statements to their parents, the detective and their pediatrician, this inconsistency was sufficient for the jury to return a not guilty verdict. Bradley alleges that it was obvious that there was not sufficient evidence to support the jury's verdict; however, we disagree. C.H. and H.H. were five and three years old respectively at the time of the abuse. The date of the trial C.H. and H.H were seven and five years old respectively. The trial was more than two years after the abuse occurred. Both girls testified to penetration by Bradley and this testimony was corroborated by the other witnesses listed above. The only evidence presented to contradict C.H. and H.H's accounts of the abuse was the testimony of Bradley in which he made a general denial of the accusations.
¶ 14. Case law holds that the word of the victim of a sex crime, even if unsupported, *390 is sufficient to support a guilty verdict when that testimony has not been discredited or contradicted by credible evidence. Torrey v. State, 891 So. 2d 188, 192(¶ 18) (Miss.2004) (quoting Collier v. State, 711 So. 2d 458, 462(¶ 15) (Miss.1998)). See Byars v. State, 835 So. 2d 965 (Miss.Ct. App.2003). This Court will not overturn the jury's findings unless the facts are so in favor of the defendant that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty. Glass v. State, 278 So. 2d 384, 386 (Miss.1973). "This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible." Langston v. State, 791 So. 2d 273, 280(¶ 14) (Miss.Ct.App.2001).
¶ 15. In Wright v. State, this Court determined that the testimony of a six-year-old girl stating that she had been touched inappropriately by the defendant, which was corroborated by the accounts she had given her mother, a deputy sheriff and a social worker, and supported further by the physician's findings, was more than sufficient to support a conviction. Wright v. State, 859 So. 2d 1028, 1030 (¶¶ 3,6)(Miss.Ct.App.2003). In that case, we found that Wright's conviction was not dependent upon any medical or physical evidence, noting that the totally uncorroborated testimony of the victim was sufficient to support a guilty verdict when the testimony is not discredited by other evidence. Id. Even though C.H. and H.H's testimony slightly differed regarding the events of the abuse, it is not this Court's function to determine the credibility of the testimony. Davis v. State, 878 So. 2d 1020, 1027(¶ 30) (Miss.Ct.App.2004).
¶ 16. It is the jury's function to decide which testimony to accept and which to reject. Id. Based on the evidence presented we are satisfied that the jury did just that and returned a reasonable verdict. We therefore affirm the trial judge's denial of Bradley's motions for directed verdict, JNOV and new trial.
¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, OF CONVICTION OF TWO COUNTS OF SEXUAL BATTERY AND TWO COUNTS OF TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF THIRTY YEARS ON EACH COUNT OF SEXUAL BATTERY AND FIFTEEN YEARS ON EACH COUNT OF TOUCHING A CHILD FOR LUSTFUL PURPOSES, WITH SENTENCES TO RUN CONCURRENTLY, FOR A TOTAL OF THIRTY YEARS TO SERVE, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
KING, C.J., LEE, P.J., BRIDGES, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617645/ | 623 So. 2d 795 (1993)
Timothy Michael MOORE, Appellant,
v.
STATE of Florida, Appellee.
No. 92-4299.
District Court of Appeal of Florida, First District.
August 23, 1993.
Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for appellee.
JOANOS, Judge.
Appellant, Timothy Michael Moore, appeals the revocation of his probation and the sentence imposed based upon that revocation. Appellant contends: (1) the trial court erred in finding appellant violated probation for failing to follow a payment schedule mandated by the probation officer, rather than the court; (2) the written order of probation *796 must be conformed to the court's oral pronouncement; and (3) the new sentence is illegal, because it exceeds the maximum permitted by statute for a third-degree felony. We reverse and remand for resentencing.
On February 23, 1989, appellant pled nolo contendere to the offenses of grand theft (two counts), burglary (two counts), grand theft auto, and criminal mischief; adjudication was withheld, and appellant was placed on probation for five years. The two special conditions of appellant's probation pertinent to this appeal required him to pay $30 per month toward the cost of supervision, and $500 as court cost. In addition, the probation order expressly provided that the trial court "reserves jurisdiction to establish an amount of restitution."
In October 1992, appellant's probation officer filed a warrant of violation of probation, alleging that appellant violated Condition (2) of his probation, by failing to pay $30 per month toward cost of supervision; Condition (8) by failing to make monthly payments toward court cost, as his probation officer instructed him to do on May 5, 1989; and Condition (8) by failing to make monthly payments towards his restitution, as his probation officer instructed him to do on March 3, 1989.
At the revocation hearing held November 24, 1992, the testimony of appellant's probation officer established that appellant had been in arrears on the cost of supervision from January until August 1992, but he had paid all past due amounts and was current on the date of the hearing. Although appellant was instructed to pay his court cost at the rate of $10 per month, he had made no payment since March 5, 1991. At the time of the hearing, appellant had paid $260 of the $500 court cost assessment. In addition, the probation officer instructed appellant to pay restitution at the rate of $40 per month, but he had made no payment toward restitution since October 7, 1991. According to the probation officer, appellant inquired about his restitution obligation, and requested a restitution hearing. However, a restitution hearing had never been held.
The trial court found appellant guilty of Counts I and II of the violation of probation affidavit, but not guilty as to Count III because restitution had never been established. The court adjudicated guilt with respect to the underlying offenses, and placed appellant on a new five-year period of probation. Special conditions of probation required appellant to serve the first year on community control, and to complete the first six months at Pensacola Restitution Center. All other terms and conditions of the original probation were reinstated. The written revocation order stated that appellant had been found guilty of violating Counts I, II, and III, as cited in the affidavit.
The record reflects, and appellant concedes, that before the affidavit of violation of probation was filed, he had been seven months in arrears on his cost of supervision. He brought the arrearage up to date, so that he was current on the supervision cost on the day of the hearing. Since it is undisputed that appellant had been in arrears on the supervision cost, we conclude the trial court's finding that appellant violated this condition of his probation could not be viewed as an abuse of discretion. Adams v. State, 559 So. 2d 436, 438 (Fla. 1st DCA 1990).
We reach a different conclusion with regard to the Count II finding that appellant violated the condition requiring payment of court cost. Establishment of a payment schedule is a judicial responsibility, rather than a supervisory function proper for administration by a probation officer. Jordan v. State, 610 So. 2d 616, 618 (Fla. 1st DCA 1992); White v. State, 606 So. 2d 1265, 1266 (Fla. 1st DCA 1992); Bowers v. State, 596 So. 2d 480, 481 (Fla. 1st DCA 1992). In other words, "[p]robation may be revoked only when a probationer violates a condition imposed by the court, not a probation officer." Jordan, 610 So.2d at 618.
The record reflects that appellant was placed on probation in February 1989; on May 5, 1989, his probation officer instructed him to make monthly payments toward his court cost. Although cases pertaining to judicial responsibility to establish a probationer's payment schedule have been decided in the context of restitution rather than court costs, it seems the principle is equally applicable *797 to both. Here, the trial court specified the total amount of court cost appellant would be required to pay, but left the manner of payment to the probation officer. Since appellant had paid more than half the amount due, arguably he could have paid the balance during the remainder of his original probation. In view of the clear instruction set forth in the restitution cases, we conclude the trial court abused its discretion in finding that appellant violated the court cost condition of his probation, due solely to his failure to meet the payment schedule imposed by his probation officer.
The second issue concerns the disparity between the trial court's oral pronouncements and the findings contained in the written probation order. At the revocation hearing, the trial court pronounced appellant guilty of violating Counts I and II of the affidavit, and not guilty of violating Count III. However, the written revocation order contains a finding that appellant violated all three counts alleged in the affidavit. It is well settled that a written probation order must conform to the court's oral pronouncement at sentencing, as the state properly concedes. See Dantler v. State, 584 So. 2d 198 (Fla. 1st DCA 1991).
The third issue concerns the imposition of a new five-year period of probation. A trial court is without authority to extend a period of probation beyond the maximum permissible sentence for the underlying offense. Blackburn v. State, 468 So. 2d 517, 518 (Fla. 1st DCA 1985); Duchesne v. State, 616 So. 2d 172 (Fla.2d DCA 1993); Teasley v. State, 610 So. 2d 26, 27 (Fla. 2d DCA 1992), review denied, 618 So. 2d 1370 (Fla. 1993); Carter v. State, 606 So. 2d 680 (Fla. 2d DCA 1992); Ogden v. State, 605 So. 2d 155, 158 (Fla. 5th DCA 1992). In Ogden, the court explained that probation could not be extended beyond the statutory maximum for the offense, because to rule otherwise would mean that probation or community control could be extended ad infinitum beyond the statutory maximum each time a probationer's probation or community control were revoked.
In the instant case, on February 2, 1989, appellant was placed on probation for a five-year period in connection with his nolo contendere plea to multiple third-degree felonies. On November 24, 1992, after appellant had served three years and ten months of the first probation, probation was revoked, and a new five-year period of probation was imposed. When probation is revoked, the trial court can sentence up to the maximum period of incarceration permitted by statute. See § 948.06(1), Fla. Stat. (1989). However, if probation is reinstated, as it was in this case, the combined periods of probation cannot exceed the maximum incarcerative period permitted by statute for the underlying offense. Blackburn, 468 So.2d at 518; Ogden, 605 So.2d at 158.
Remand is required in this case, so that the written revocation order may be conformed to the trial court's oral pronouncement. In addition, since it is not apparent from the record that probation would have been revoked in this case based solely on the one valid violation, we conclude that remand is required as well for reconsideration of the decision to revoke probation. Glass v. State, 597 So. 2d 984, 985 (Fla. 1st DCA 1992). See also Jordan v. State, 610 So. 2d 616, 619 (Fla. 1st DCA 1992); Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983). If the trial court again decides to revoke, then reinstate, appellant's probation, the total combined periods of probation cannot exceed the five-year statutory maximum for a third-degree felony.
Accordingly, the revocation order is reversed and remanded to the trial court to consider whether probation should be revoked solely on the ground that prior to the hearing, appellant was in arrears in payment of cost of supervision. If probation is revoked, and a new probationary term is imposed, the combined periods of probation cannot exceed the maximum sentence permitted by statute for a third-degree felony. As a final note, the trial court is cautioned to ensure that the final written revocation order conforms to the oral pronouncement.
ERVIN and MICKLE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617397/ | 623 So. 2d 323 (1993)
Scott HARTZELL
v.
Donda Lewis HARTZELL.
2910418-X.
Court of Civil Appeals of Alabama.
April 2, 1993.
*324 J.R. Herring, Dothan, for appellant.
John Emory Waddell and Ron Storey, Dothan, for appellee.
YATES, Judge.
Following ore tenus proceedings, the trial court entered an order on March 3, 1992, divorcing the parties upon a finding of incompatibility and dividing the marital assets. The husband appeals, and the wife cross-appeals. We affirm.
The record reflects that the parties were married in June 1989 and that they separated in September 1991. There were no children born of the marriage.
The wife was awarded the following assets: A checking account with a balance of $200, two certificates of deposit with First Alabama Bank totalling $37,887.72, a BMW automobile, the marital home and lot, and all household furnishings. The trial court awarded the following assets to the husband: two business accounts totalling $35,367.17, a 1988 Dodge truck, a 1967 GMC truck, two mobile homes, a satellite dish, a ski boat, Geneva County land with an egg business, a Mr. Transmission franchise and stock, and a savings account in the amount of $23,997.65.
At the time of the divorce, the wife was employed by the South Central Alabama Mental Health Center as a mental health counselor with a salary of $19,100 per year. The husband was a self-employed businessman.
The husband contends that the division of the marital estate was so inequitable as to amount to an abuse of discretion of the trial court. The wife contends on cross-appeal that the trial court erred in awarding substantial assets to the husband without awarding her equitable compensation.
The facts in this case show that in May 1988, prior to the marriage, the husband acquired a Mr. Transmission franchise, which was sold in September 1989 for $160,000. The purchaser paid $50,000 in cash, and the remainder was financed by the husband for five years at 12% interest. The franchise was reacquired by the husband in his name only in April 1991. At the time of the divorce the stock in this corporation was worth approximately $225,000.
Also prior to the marriage, the husband was involved in an automobile accident and was awarded approximately $27,900 for personal injuries. According to the husband, these proceeds were placed into certificates of deposit with First Alabama Bank. After the parties were married, the wife's name was placed on the certificates of deposit, and they were held jointly by the parties throughout the marriage.
During the marriage, the parties jointly acquired a BMW automobile which was used primarily by the wife. The parties also jointly acquired from the wife's father a house and lot located in Dothan for a purchase price of $50,000.
Additionally, the husband acquired land in Geneva County in his name only after the sale of the Mr. Transmission franchise in September 1989. A portion of the money from the sale of the franchise was used to make payments on the land and to build chicken houses for an egg business that produced approximately $25,000 in income per year. The parties financed the remainder of *325 the purchase price of the land and the cost of building the chicken houses. All income from the egg business was used to maintain the business, and a mobile home and 1967 GMC truck were both used in the business.
The husband operated both the egg and the transmission business. The wife's involvement appears to be minimal; however, testimony revealed that she supported her husband's efforts and occasionally helped out. The husband also maintained separate accounts for business purposes. The account for the egg business had a balance of $15,200.33, and the transmission business account had a balance of $20,166.84.
After the parties' separation, the husband, with monies from his transmission business, opened an individual savings account. The balance of that account was $23,997.65.
"[I]n reviewing the judgment by the trial court, we are governed by the well-established ore tenus rule. Under this rule, when the trial court has been presented evidence in a divorce case ore tenus, its judgment will be presumed to be correct and will not be set aside by this court unless it is plainly and palpably wrong or unjust." Brannon v. Brannon, 477 So. 2d 445, 446 (Ala.Civ.App. 1985).
"In making a division of property, a trial court should consider several factors, including the length of the marriage; the age and health of the parties; the future employment prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage." Morrison v. Morrison, 540 So. 2d 80, 81 (Ala.Civ.App.1989). Here, the parties were married approximately 27 months at the time of their separation, and the husband had acquired most of the assets prior to the marriage. The assets awarded to the wife were assets held in the joint names of the parties.
The husband, citing Ala.Code 1975, §§ 30-2-51 and -52, specifically argues that the trial court erred in giving the wife the First Alabama Bank certificates of deposit. We find § 30-2-52 inapplicable, based on the findings of the trial court. Section 30-2-51 states as follows:
"If either spouse has no separate estate or if it be insufficient for the maintenance of such spouse, the judge, upon granting a divorce, at his discretion, may order to such spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse's family; provided, however, that the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the trial judge finds from the evidence that such property, or income produced by such property, has been used regularly for the common benefit of the parties during their marriage."
The husband testified that the source of the funds in the certificates of deposit was from a personal injury settlement. At the time of the divorce and since shortly after the marriage, however, the certificates of deposit were in the joint names, evidencing ownership by both. In addition, testimony from both parties indicated the certificates included money from the 1989 sale of the franchise and these certificates were used as collateral for funds used during the marriage.
The trial court could have determined that the husband made a gift to his wife of the certificates of deposit or that the certificates changed character from individual to joint assets, thus constituting family-owned property. See Adcock v. Adcock, 567 So. 2d 374 (Ala.Civ.App.1990). Perhaps the wife was given the certificates of deposit held jointly by the parties rather than a portion of the two businesses, the business accounts, or the savings account set up by the husband after the separation.
Even considering the short length of the marriage and the source, type, and value of the property, we hold that the trial court's division of the assets did not constitute an abuse of discretion. The judgment of the trial court is due to be affirmed.
AFFIRMED.
ROBERTSON, P.J., and THIGPEN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617413/ | 38 So. 3d 815 (2010)
Darlene HANNAH, Appellant,
v.
Joshua OLIVO, Appellee.
No. 5D09-1147.
District Court of Appeal of Florida, Fifth District.
June 18, 2010.
William T. Viergever, Sonneborn, Rutter, Cooney & Klingensmith, P.A., West Palm Beach, for Appellant.
Bethany L. Schonsheck, of Hassell, Moorhead & Carroll, Daytona Beach, for Appellee.
EVANDER, J.
Darlene Hannah appeals from a final order dismissing her lawsuit against Joshua Olivo for failure to timely effect service of process. Because of the applicable statute of limitations, the order effectively dismissed Hannah's case with prejudice. We reverse. It was error to dismiss Hannah's action where Olivo was served with process, albeit defectively, within the time period designated by the trial court.
On November 1, 2007, Hannah filed the instant action alleging that she suffered personal injuries as the result of Olivo's negligent operation of a motor vehicle in Flagler County, Florida, on December 27, 2003. Approximately six weeks later, the Flagler County Sheriff's Office attempted service on Olivo. The Sheriff's return indicated that personal service was not effected because Olivo "MOVED TO CT MONTHS AGO."
On January 16, 2008, Olivo made a special appearance, through counsel, and moved to dismiss the complaint for lack of service of process. In support of his motion, Olivo submitted an affidavit in which he averred that he had not been served, had not been contacted by anyone else regarding this lawsuit, had never moved to or resided in Connecticut, and was not attempting to conceal his whereabouts. Olivo also submitted affidavits from his *816 mother, stepfather, and girlfriendeach of whom swore that they lived in the same residence as Olivo, that no other individual over the age of fifteen resided there, and that they had never been contacted regarding service of Hannah's complaint. None of the four affidavits set forth the address of Olivo's residence. Two weeks later, the trial court denied Olivo's motion to dismiss.
On February 12, 2008, Hannah filed a motion for extension of time to effect service, attaching the Sheriff's return reflecting an unsuccessful attempt at service. The trial court granted the motion and gave Hannah an additional 120 days (through June 30, 2008) to effect service.
In May 2008, Hannah filed a motion to allow service upon Olivo through the Secretary of State because of Olivo's alleged efforts to conceal his whereabouts. Alternatively, Hannah requested additional time in which to effect service. Hannah's motion detailed her investigator's purported efforts to locate Olivo. The motion was denied. However, on June 11, 2008, the trial court did grant Hannah's subsequent motion to have Cynthia Roque of Locators International, Inc., appointed as a special process server.[1]
Roque was successful in serving Olivo. However, the date of service of process was May 30, 2008. On June 12, 2008, Olivo filed a motion to quash service, correctly alleging that Roque had served Olivo prior to the court's order appointing her as a special process server. On July 1, 2008, Roque served Olivo again. Yet, on August 7, 2008, the trial court granted Olivo's motion to dismiss Hannah's complaint. The trial court found that the May 30, 2008 service was invalid because Roque had not yet been appointed by the court as a process server and that the July 1, 2008 service was too latehaving occurred after the expiration of the 120-day extension period previously granted by the trial court.
We agree with Olivo that the May 30th service was invalid because Roque had not yet been appointed to be a special process server. See, e.g., Decker v. Kaplus, 763 So. 2d 1229 (Fla. 5th DCA 2000) (service upon defendants defective because process server not qualified to effect service in county where defendants were served, rendering final judgment voidable). However, the invalidity of the May 30th service of process does not mandate dismissal of Hannah's action.
Florida Rule of Civil Procedure 1.070(j)[2] provides that service of process is to be made on a defendant within 120 days after filing of the initial pleading directed to that defendant, unless the court, upon a showing of good cause or excusable neglect, *817 extends the time for service for an appropriate period. The rule is not intended to be a trap for the unwary nor a rule to impose a secondary statute of limitations based on time of service. Rather, the rule is designed to be a case management tool to effectively move cases through the courts. See Roberts v. Stidham, 19 So. 3d 1155, 1157-58 (Fla. 5th DCA 2009); Sneed v. H.B. Daniel Constr. Co., Inc., 674 So. 2d 158, 160 (Fla. 5th DCA 1996).
Accordingly, courts have found an abuse of discretion in dismissing a complaint where service, albeit defective, was effected within the allowable time. Sneed (dismissal of action improper where service, although invalid, effected within 120 days of filing initial complaint); see also Bice v. Metz Constr. Co., Inc., 699 So. 2d 745 (Fla. 4th DCA 1997); Bankers Ins. Co. v. Thomas, 684 So. 2d 246 (Fla. 2d DCA 1996); Caban v. Skinner, 648 So. 2d 251 (Fla. 3d DCA 1994). These cases recognize the difference between a lack of service and defective service:
A distinction is to be noted between a total want of service where the defendant received no notice at all, and a service which is irregular or defective but actually gives the defendant notice of the proceedings against him. The former confers no jurisdiction of the person by the court, but the latter or defective service of process, on the contrary, confers jurisdiction upon the court of the person summoned so that the judgment based upon it is voidable only and not void and cannot be collaterally attacked.
State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649, 652 (1936) (citations omitted).
Under the facts of this case, the proper procedure was to quash the service but permit the action to remain pending. Bice, 699 So.2d at 746. On remand, the trial court must determine whether the service of process alleged to have been effected on July 1, 2008 was valid. If so, the trial court should direct Olivo to respond to the complaint. If not, the court can direct Hannah to effect service within some reasonable amount of time. Id.
REVERSED and REMANDED.
TORPY and LAWSON, JJ., concur.
NOTES
[1] The trial court's appointment of Ms. Roque was made pursuant to Florida Rule of Civil Procedure 1.070(b).
[2] Process.
* * *
(j) Summons; Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct the service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period. When a motion for leave to amend with the attached proposed amended complaint is filed, the 120-day period for service of amended complaint on the new party or parties shall begin upon the entry of an order granting leave to amend. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617426/ | 623 So. 2d 265 (1993)
Alexander JOHNSON
v.
STATE of Mississippi.
No. 93-TS-0232.
Supreme Court of Mississippi.
August 19, 1993.
*266 Alexander Johnson, pro se.
Michael C. Moore, Atty. Gen., Jackson, for respondent.
En Banc.
PRATHER, Presiding Justice, for the Court:
ON MOTION FOR APPEAL
IN FORMA PAUPERIS
This appeal arises from a denial of a petition for post-conviction relief in the Circuit Court of Washington County. Upon denial, Alexander Johnson sought to appeal to this Court in forma pauperis, filing a motion to that effect in the circuit court. When that motion was denied, Johnson subsequently filed a similar motion with this Court. This Court finds that the case must be remanded to the circuit court for a determination of whether Johnson is indeed indigent.
I.
On April 24, 1972, Alexander Johnson pleaded guilty to two counts of rape and one count of assault with intent to kill in the Washington County Circuit Court. In 1990 Johnson filed a motion in the circuit court seeking relief under the Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. § 99-39-1 et seq. The motion was dismissed by order of the circuit court dated August 23, 1990. The circuit court found that the time for filing such a motion had expired in 1975, three years after the time for taking an appeal had expired.
In 1991 Johnson filed a petition for writ of habeas corpus in U.S. District Court for the Northern District of Mississippi. The district court dismissed Johnson's petition without prejudice, finding that Johnson had not exhausted his state remedies, i.e. the Uniform Post-Conviction Collateral Relief Act. The district court found that even though it appeared that Johnson's claim was time barred, an exception was provided when the petitioner could present "evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence." Miss. Code Ann. § 99-39-5(2). The district court noted such an allegation in Johnson's federal court pleadings.
On January 19, 1993, Johnson filed a Motion to Reconsider Order of Dismissal in the Washington County Circuit Court. In an order dated January 22, 1993, the trial court found that it had erred in its earlier order, and that Johnson's time for filing for post-conviction relief had not actually expired until April 1987. Even so the court found that Johnson's action, filed in 1990, was time barred, as Johnson had made no allegation which would bring his case within any exception to the three-year statute of limitations.
On February 5, 1993, Johnson filed his notice of appeal and his motion to proceed in forma pauperis in the trial court. By order dated February 24, 1993, the trial court concluded that Johnson was "not entitled to proceed in forma pauperis in this case, and his motion is denied." No reason was given for the trial court's action. On March 8, 1993, Johnson filed his Petition to Proceed With Appeal of Post Conviction Relief Denial In Forma Pauperis with this Court.
II.
It is well settled that an indigent civil litigant may not proceed in forma pauperis in an appeal to this Court. Nelson v. Bank of Mississippi, 498 So. 2d 365 (Miss. 1986). Under the Post-Conviction Relief Act, the motion for relief "shall be filed as an original civil action in the trial court... ." Miss. Code Ann. § 99-39-7. However, this section must be construed in conjunction with Miss. Code Ann. § 99-39-25(1), which provides:
(1) A final judgment entered under this chapter may be reviewed by the supreme court of Mississippi on appeal brought either by the prisoner or the state on such terms and conditions as are provided for in criminal cases. (emphasis added).
Miss.Sup.Ct.R. 6(a)(3) provides for proceedings in forma pauperis criminal cases as follows:
Motion in the Supreme Court. If a motion for leave to proceed on appeal in *267 forma pauperis is denied by the trial court, the trial court clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in this Court within 30 days after service of notice of the action of the trial court. The motion shall be accompanied by a copy of the affidavit filed in the trial court, or by the affidavit prescribed by Rule 6(a)(1) if no affidavit has been filed in the trial court, and by a copy of the statement of reasons given by the trial court for its action.
This Court finds that Johnson filed with his motion in this Court a copy of the affidavit of poverty which was filed in the trial court and that he filed this motion to appeal in forma pauperis on March 8, 1993, within thirty days of the entry on February 24, 1993, of the trial court's order denying his motion to appeal in forma pauperis.
The trial court's order states that it "has reviewed this matter and concludes that Petitioner is not entitled to proceed in forma pauperis in this case, and his motion is denied." The order does not state whether the trial court denied the motion based its denial on Nelson v. Bank of Mississippi, or whether the trial court found that Alexander Johnson was not indigent, or based on some other reason. This Court holds that the rule espoused in Nelson has no application to appeals brought under § 99-39-25. The trial court's order is reversed, and this matter remanded to the Washington County Circuit Court for the limited purpose of determining whether Alexander Johnson is indigent and entitled to appeal in forma pauperis.
ORDER OF TRIAL COURT IS REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.
HAWKINS, C.J., and DAN M. LEE, P.J., and SULLIVAN, PITTMAN, BANKS, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.
McRAE, J., dissents without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617945/ | 41 Mich. App. 631 (1972)
200 N.W.2d 487
DUES
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY.
Docket No. 11751.
Michigan Court of Appeals.
Decided June 28, 1972.
Sugar, Schwartz, Silver, Schwartz & Tyler, for defendant Universal Underwriters Insurance Company.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph B. Bilitzke *632 and Carl K. Karlsen, Assistants Attorney General, for defendant Motor Vehicle Accident Claims Fund.
Before: QUINN, P.J., and V.J. BRENNAN and TARGONSKI,[*] JJ.
PER CURIAM.
On April 2, 1969, plaintiff, Thomas G. Dues, applied for motor vehicle accident insurance with defendant Universal Underwriters Insurance Company. At that time, plaintiff signed the following statement:
"I understand that the policy to be issued by Universal Underwriters Insurance Company, if it is to contain liability coverage, will also include uninsured motorists coverage with limits of liability of $10,000 each person and $20,000 each accident, and further that said uninsured motorists coverage will cost me $15. I understand that uninsured motorists coverage entitles me and any other insured qualifying for uninsured motorists coverage to collect from Universal Underwriters Insurance Company such sums within the limits of uninsured motorists coverage as I or we may be legally entitled to recover as damages for bodily injury or wrongful death from the owner or operator of an uninsured vehicle. I acknowledge that uninsured motorists coverage has been explained to me to my satisfaction and that I have the right to reject such uninsured motorists coverage, and in the event that I do reject such coverage, that I will not be charged the $15 premium.
"(Signature of Thomas G. Dues)
"I hereby reject uninsured motorists coverage.
"(Do not sign if uninsured motorists coverage is desired.)"
Plaintiff was subsequently issued a policy of insurance effective from April 2, 1969, to April 2, *633 1970. The policy, as delivered to plaintiff, contained the following notice:
"The uninsured motorists coverage which is included in this policy has been explained to the named insured as required by Act 388, PA 1965. The insured can reject such coverage by notice in writing to the Company."
The policy also indicated that plaintiff had rejected such uninsured motorist coverage.
Plaintiff alleges that on May 4, 1969, he was injured as the result of the negligence of a hit-and-run driver whose identity has not been discovered. Plaintiff instituted this cause of action to obtain compensation for his injuries.
Plaintiff alleges that the rejection by him of uninsured motorist coverage did not comply with statutorily mandated procedures and that therefore such coverage should be read into the policy. The court below, in a written opinion, denied plaintiff's motion for summary judgment, and granted a like motion in favor of defendant Universal Underwriters. An appeal from this judgment was taken by the State Motor Vehicle Accident Claims Fund (hereinafter Fund).
The controversy herein concerns the interpretation of the uninsured motorist statute (MCLA 500.3010; MSA 24.13010) which, stripped of language irrelevant to this controversy, reads as follows:
"No automobile liability * * * policy * * * shall be delivered or issued for delivery in this state * * * unless coverage is provided therein * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * * unless the named insured rejects such coverage in writing as provided herein. All such policies shall contain a notice * * * *634 that such protection coverage was explained to him and that he can reject such coverage by notice in writing. Unless the named insured requests such coverage in writing, it need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer."
The Fund, on appeal, contends that a rejection of uninsured motorist coverage prior to the delivery of a policy of insurance is ineffective. It relies on Oatis v Dairyland Insurance Co, 20 Mich. App. 367 (1969), to support that proposition. Our reading of Oatis does not square with that of the Fund. The holding therein was that a rejection of uninsured motorist coverage which occurred prior to the effective date of the uninsured motorist statute here in question did not constitute compliance with that statute. Rejection herein occurred well after the effective date of the statute. The Fund argues that in order for a rejection of uninsured motorist coverage to be valid, it must be made by the insured after the insurer has delivered to him a policy which contains uninsured motorist coverage.
The language of the statute does not support this argument. The statute requires that uninsured motorist coverage be included, as a matter of course, in all policies issued after the effective date of the statute, "unless the named insured rejects such coverage in writing as provided herein". The only provision for effecting rejection is "notice in writing", which was given. The statute says nothing as to the time of the notice and we can see no reason for reading a time provision into the statute.
Affirmed.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617761/ | 135 F. Supp. 654 (1955)
LIBERTY NATIONAL BANK OF WASHINGTON, a corporation, Plaintiff,
v.
Minona Donn SMOOT et al., Defendants.
Civ. A. No. 2582-54.
United States District Court District of Columbia.
October 19, 1955.
*655 *656 Weaver & Glassie, Thomas M. Cooley, II, Washington, D. C., for the Liberty Nat. Bank.
James J. Laughlin and Albert J. Ahern, Jr., Washington, D. C., for defendant.
McGARRAGHY, District Judge.
This is a proceeding for the construction of the will of Edward W. Donn, Jr., and the complaint presents three questions to be determined, as follows:
"First: Under Clause Third of the said will, what interest, if any, does Minona Donn Smoot take in existing circumstances? Said clause opens with the language `If I am survived by my two sisters, Elizabeth Donn Bryant, 10 E. Bradley Land, Chevy Chase, Md., and Minona Donn Smoot, Tilden Gardens, Washington, D. C., I give, devise and bequeath unto them all my property, real, personal and mixed, equally, * * *'. Testator was not survived by the two named sisters, but by one of them only, namely, Minona Donn Smoot.
"Second: Clause Sixth of the will appoints the plaintiff as executor and trustee `to distribute to the beneficiaries, devisees and legatees hereunder, any property of any character of which I die the owner or which comes into my estate during administration.' Under this clause, the question is whether the plaintiff is required to undertake sufficiently active duties so that it must take title to the real estate and proceed with its distribution as the will directs.
"Third: At the time of decedent's death, there were outstanding two executed contracts of sale of certain District of Columbia real estate in which decedent had an interest and in which certain infants also had an interest, and the contracts were made subject to confirmation by the court because of the interest of said infants. The question presented by the complaint with respect to the real estate involved in these contracts is whether such contracts worked an equitable conversion so that the plaintiff holds the proceeds thereof as personalty."
First Question
The language contained in the third clause of the will "If I am survived by my two sisters" * * * "I give to them equally" * * * is capable of being literally construed to mean that both sisters must actually survive testator in order for them to receive testator's residuary, which they are to share equally. Testator having failed to provide for a disposition of his estate in the circumstances as they developed, namely, one sister predeceasing him, the *657 question arises was it testator's intent that the circumstance be covered by the will as he wrote it, or has he neglected to provide for a disposition under the facts as they developed?
The position of the Courts in this jurisdiction in construing a will is set forth in George Washington University v. Riggs Nat. Bank of Washington, D. C., 66 App.D.C. 389, 88 F.2d 771, 772, as follows:
"`Where there is nothing in the will itself to show the intention of the testator as to the disposition of his property in the condition which has actually arisen, the court cannot hold that the will disposes of the property in a particular way, on the supposition that the testator would probably have disposed of it in that way if his attention had been called to the particular circumstances.'"
If testator has failed to provide, either in the will itself, or from his language viewed in the light of circumstances which surrounded him when he wrote the will, some indication as to his intent on the particular point sought to be clarified, this Court is without power to place any construction on the will or parts thereof. Baker v. National Sav. & Trust Co., 86 U.S.App.D.C. 161, 181 F.2d 273.
The stipulated facts disclose that at the time testator wrote his will in 1941, his nearest relatives were his two sisters. The next nearest relatives were a nephew and a niece of a previously deceased sister. To each of the latter, testator bequeathed One Thousand Dollars. To his sisters he devised the remainder of his estate, with request for certain payments. What better indicia of intent can be presented to the Court than the manner in which the testator attempted to dispose of his property. Such a wide disparity in the amounts of the bequests virtually excluding the relatives other than his sisters can only indicate that the testator wanted these two sisters preferred to the virtual exclusion of all his other relatives.
This, then, was the intent of the testator. In order to give effect to that intent, it remains for the Court to determine what estates were given the sisters.
The law is well settled that where a testator devises an estate to named persons, to be divided equally, those persons take as tenants in common. George Washington University v. Riggs Nat. Bank of Washington, D. C., supra; Partridge's Lessee v. Colegate & Garretson, 1793, 3 Har. & McH. 339.
In Massachusetts, the Court expressed the general view in saying:
"It is a well recognized rule that when there is a gift to several legatees described by name of an aggregate sum to be divided equally among them, if one dies before the testator, his share will lapse." Boston Safe Deposit & Trust Co. v. Reed, 229 Mass. 267, 118 N.E. 333, 336.
The only circumstances which will abrogate this rule are those which the Court went on to discuss. (Supra).
"This rule will not be enforced when it is clear that the testator intended that the persons named were to take the fund bequeathed as a class and not as individuals, and the survivors of the legatees named should take the whole fund bequeathed."
Section 816, Title 45, D.C.Code 1951 states:
"Every estate granted or devised to two or more persons in their own right * * * shall be a tenancy in common, unless expressly declared to be a joint tenancy * * *."
The estate in question is, therefore, either a tenancy in common or a class gift. The requisites for a class gift in this jurisdiction are explicitly set forth in the case of Evans v. Ockershausen, 69 App.D.C. 285, 100 F.2d 695, 128 A.L.R. 177.
Two points in the instant case indicate clearly that this gift does not come within the classification of a class gift as defined (supra). The first point is that the *658 beneficiaries are named. A fair interpretation of the law in this jurisdiction indicates that such a designation is fatal. The second point is that after bequeathing the property to the sisters equally, the third clause of testator's will continues with the "request that they pay out of it" certain monies. Testator considered, therefore, that this was to be a common fund at his death, not property which was to be divided among class members at his death.
It should be noted on this point that there was a will written entirely by testator; there was no intervening scrivener reducing testator's intentions to writing.
There being no class gift, the estate given to the two sisters is a tenancy in common. Having predeceased testator, the gift to Elizabeth Donn Bryant lapses, and will pass as intestate property. George Washington University v. Riggs Nat. Bank of Washington, D. C., supra; Page on Wills, 2nd Ed., Sec. 1257.
The District of Columbia lapse statute has no application here since Elizabeth Donn Bryant had no issue.
Remaining for consideration are the words "If I am survived by my two sisters". Counsel for the minor defendants herein argues that these words constitute a condition precedent to either sister taking; that both must actually survive the testator. This is not consistent with the intention of testator as found by the Court. In addition, the Court having found as a matter of law that the sisters took as tenants in common, the meaning to be attached to the words is that testator was conditioning the bequest to each upon the survival of each. He was merely stating the law in this jurisdiction which requires a tenant in common to survive testator in order to take his share.
Minona Donn Smoot will take under the will one half of the decedent's real property situated in the District of Columbia. The remaining half lapsed and passes as intestate.
Second Question
Under testator's will, plaintiff has been named "executor and trustee" with the direction to "distribute to the beneficiaries, devisees and legatees hereunder any property", etc. Plaintiff has requested the Court to determine whether the duties the instrument imposes upon it are sufficient to create an active trust. The applicable law on the question is found in Title 45, Sec. 1201, which states the generally accepted rule, that if the trustee has no duties to perform the trust is passive and executed "except where the title of such trustee is not merely nominal but is connected with some power of actual disposition or management of the property conveyed." The end result is that if the trustee has duties to perform here, the trust is active and the trustee will take title and administer and manage the properties; if the trustee has no duties other than to convey title, the trust is passive and title vests in the devisees. Betker v. Nalley, 78 U.S.App.D.C. 312, 140 F.2d 171; Dunlap v. Jones, D.C.D.C.1941, 38 F. Supp. 593, affirmed 76 U.S.App.D.C. 422, 128 F.2d 763.
It is for the Court to determine whether the words used by testator, in light of the circumstances surrounding the creation of the trust impose some duty upon the trustee other than merely to convey. As the Court said in Fidelity Union Trust Co. v. Mintz, 1939, 125 N.J. Eq. 52, 4 A.2d 44, 45:
"A trustee must conform to the provisions of the trust in their true spirit, intent and meaning, and not merely in their letter".
The circumstances in this case point out the answer to the problem. At the time of his death, testator was sole owner of five parcels of real property in the District of Columbia, with an assessed valuation of $43,145. He also owned an undivided one-third interest in a great number of other parcels of real property in the District of Columbia, with an assessed valuation of $156,069.
*659 Counsel for plaintiff have stated to the Court that the properties have various types of improvements, in various states of repair, and will be most difficult to dispose of in an orderly fashion. Under these circumstances, it is apparent that to "distribute" carries more meaning than in the ordinary case; plaintiff is required to take active steps to preserve the property and to assure to the beneficiaries of the trust advantageous disposition of the property.
The trustee here has such a power of management or control as to bring it within the exception to the general rule found in Title 45, Sec. 1201, District of Columbia Code.
Third Question
This question relates to property in which testator had a fractional interest and which he, together with the other owners, contracted to sell before his death. A rider was attached to these contracts of sale requiring the sellers to procure court approval of the sale as it related to the one-twenty-fourth interest of minors therein, in accordance with Sec. 213, Title 21, District of Columbia Code. Testator died before the conditions were fulfilled. Testator having been at the time of his death a resident of the state of Maryland, the property will pass under Maryland law if it be personalty, under District of Columbia law if it be real property. This is the proper Court to determine the character of the property. Holcomb v. Wright, 5 App.D.C. 76.
The District of Columbia follows the general rule that a contract of sale of land effects an equitable conversion of it into personalty, and if the vendor dies before the performance of the contract, his rights in it descend to his personal representative. Griffith v. Stewart, 31 App.D.C. 29. The issue here is whether the conditions in the riders, not having been performed, rendered the contract incapable of specific performance and hence preclude equitable conversion.
While the conditions were subsequently fulfilled by testator's executor, and the property sold, the Court must examine the contract as of the time of the death of testator to determine whether equitable conversion had taken place.
This exact question has not been ruled on in this jurisdiction. A statement of the general view, however, is found in In re De Stuers' Estate, 199 Misc. 777, 99 N.Y.S.2d 739, 742. In that case testator died after executing a contract of sale of land, but before securing, as he was bound to do under the contract, releases surrendering or judgments terminating the inchoate rights of dower of two prior wives. The Court said:
"The doctrine of equitable conversion provides that a court of equity will, for certain purposes, consider the interest of a vendor after the mere execution of a contract for the sale of realty as already converted into personal property and the interest of the vendee as realty, even prior to actual conversion, as if the mutual covenants contained in the contract had already been executed. The vendor having manifested an intention to convert the realty at a future date, the court will regard the contract as already performed and the vendee as the `equitable owner.'"
There might conceivably be circumstances which would preclude such a conversion, but as the Court said in Flomerfelt v. Siglin, 155 Ala. 633, 47 So. 106, 108:
"It is true the contract must be an enforceable one at the death of either party thereto; but enforceability at the time of death of one of the parties refers to the validity of the contract, and not to events in the nature of conditions which may not have been performed because performance was not due at the time of the death of the testator. It is sufficient if these conditions can be performed by his representative."
The conditions embodied in the riders to the contracts in question were of just such a nature, and did not preclude equitable *660 conversion. The interest of testator in these properties at the time of his death was personalty.
Counsel for plaintiff will submit an appropriate order conforming to the views expressed above. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1190516/ | 198 Kan. 307 (1967)
424 P.2d 256
JIMMY LEE GROVER, a minor, by and through his father and next friend, Calvin Grover, Appellant,
v.
CITY OF MANHATTAN, KANSAS, a municipal corporation, Appellee.
No. 44,626
Supreme Court of Kansas.
Opinion filed March 4, 1967.
Daniel A. Young, of Lawrence, argued the cause, and Jerry L. Mershon, of Manhattan, was with him on the brief for the appellant.
Donn J. Everett, of Manhattan, argued the cause, and was on the brief for the appellee.
*308 The opinion of the court was delivered by
O'CONNOR, J.:
This is a damage action instituted by the plaintiff against the City of Manhattan and one of its employees. From an order of the district court sustaining the city's motion for summary judgment, the plaintiff has appealed. The employee is not a party to this appeal.
The question presented concerns the liability of a municipality in the operation and maintenance of its zoo.
The events giving rise to the appeal may be briefly summarized. Jimmy Lee Grover, age ten, while visiting the Sunset Zoo on September 23, 1962, suffered injuries as a result of being attacked and bitten by a coyote which had escaped from its enclosure at the zoo and was running loose in the area frequented by visitors. Plaintiff alleges that the city was negligent in failing to properly restrain the coyote in its pen, and that the city created a nuisance by allowing the animal to run loose. At the pretrial conference the city moved for summary judgment, contending that in the operation of the zoo it was performing a governmental function, and thus was not liable. The lower court, in a memorandum opinion, held that the city was entitled to the protective cloak of governmental immunity on the grounds that (1) the operation and maintenance of the zoo was a governmental function, and (2) "the coyote running loose" did not constitute a nuisance. These grounds, upon which the lower court bottomed its ruling, are the points of error asserted by plaintiff on appeal.
Municipal corporations exist and function in a dual capacity one governmental, the other proprietary. Generally, municipalities, as arms of the state, are not liable for negligence in the discharge of their governmental functions, but immunity from liability is not extended to municipalities in the exercise of their proprietary functions. In the latter instance, the liability of a city is equivalent to that of an individual or a private corporation. (Wendler v. City of Great Bend, 181 Kan. 753, 316 P.2d 265; Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P.2d 227, 5 A.L.R. 2d 47.)
Plaintiff first asks us to reject the immunity doctrine as it applies to the liability of a municipality in the discharge of its governmental functions, just as we have abandoned it as it applies to charitable institutions and church corporations. The same contention was advanced in the recent case of Parker v. City of Hutchinson, 196 *309 Kan. 148, 410 P.2d 347, where the subject was considered in depth. We adhere to our holding that absent a statute expressly imposing liability, a municipality is not liable for the negligence or misconduct of its officers or employees in their performance of its governmental functions. (Also, see McCoy v. Board of Regents, 196 Kan. 506, 413 P.2d 73, involving the immunity of a state agency.)
Plaintiff next contends the trial court erroneously concluded that the operation and maintenance of the zoo by the defendant city was a governmental instead of a proprietary function.
No single test or rule is relied on by this court in determining whether activities of a municipal corporation are governmental or proprietary. The tests to which plaintiff attaches great weight, in his assertion that the city was acting in its proprietary capacity, are well stated in Wendler, where it is held to be:
"... proper to consider whether the activity is primarily for the advantage of the state as a whole or for the special local benefit of the community involved, and to further consider whether such activity is in performance of a duty imposed upon the municipality by the sovereign power, or is in the exercise of a permissive privilege given by the sovereign power, but such tests are not conclusive to determine the capacity in which the city's activities are conducted." (Syl. ¶ 3.)
There is substantial authority that maintenance of a public park by a municipality is a governmental function (Anno. 29 A.L.R. 863, 42 A.L.R. 263, 99 A.L.R. 686, 142 A.L.R. 1340; 18 McQuillin, Municipal Corporations [3d Ed. Rev.] § 53.112), and this proposition is supported by our decisions. In the early case of Harper v. City of Topeka, 92 Kan. 11, 139 P. 1018, it was determined that the maintenance of a city park for the sole benefit of the public, and not for any profit or benefit to the municipal corporation, was a governmental, or public, function. Also, see Warren v. City of Topeka, 125 Kan. 524, 265 P. 78, 57 A.L.R. 555.
In Hibbard v. City of Wichita, 98 Kan. 498, 159 P. 399, under facts nearly identical to those here, the liability of a city in maintaining a zoo as part of its park was equated to that of its maintaining a public park. There, it was held:
"The maintenance of a zoological garden in a public park by a city is a governmental function, and the city is not liable in damages for injuries inflicted on visitors by animals through the negligence of the city's officers or agents in not properly confining the animals." (Syl.)
This decision, approbated in many of our later cases, has never been overruled. (E.g., Rose v. City of Gypsum, 104 Kan. 412, 179 *310 Pac. 348; Warren v. City of Topeka, supra; Perry v. City of Wichita, 174 Kan. 264, 255 P.2d 667; Freeburne v. City of Emporia, 176 Kan. 503, 271 P.2d 298; Stolp v. City of Arkansas City, 180 Kan. 197, 303 P.2d 123, adhered to on rehearing 181 Kan. 225, 310 P.2d 888.)
Plaintiff, although recognizing the force of the Hibbard decision, seeks to distinguish it from the instant case by arguing that the maintenance of a zoo as a part of the city park by the City of Manhattan under authority of K.S.A. 12-1301 is "permissive," whereas the maintenance of a zoo by the City of Wichita under authority of K.S.A. 13-1301 is a "mandatory" duty imposed by the state; therefore, under the "mandatory-permissive" test stated in Wendler v. City of Great Bend, supra, the City of Manhattan was acting in its proprietary capacity, and, thus, is subject to liability. We do not agree.
The statute under which the City of Wichita maintained its park system was not discussed in Hibbard, nor does it appear that the statute was used as a basis for deciding the case. Were we to adopt the "mandatory-permissive" rule as an exclusive test, we would be creating a distinction whereby the doctrine of governmental immunity would be applicable to cities of over 30,000 population yet would be abrogated for smaller cities engaged in the same activity. We perceive no sound reason for discriminating between cities of different classes when all are engaged in a function clearly for the benefit of the general public, such as the maintenance of a zoo as a part of a city park.
The power of the legislature to lift the cloak of immunity at any time must be acknowledged, but we cannot say, as plaintiff contends, that our lawmakers have inferentially granted immunity by their nonaction in the case of those cities maintaining parks under the mandatory features of K.S.A. 13-1301 but have lifted the cloak by the permissive provisions of K.S.A. 12-1301 in regard to cities in the same class as the City of Manhattan. Moreover, the "mandatory-permissive" test has not been looked to exclusively in determining the nature of a city's activity, for a particular function engaged in by a city under either a mandatory or permissive statute may, nevertheless, be determined to be governmental in character. The matter is discussed in Stolp v. City of Arkansas City, supra, p. 202.
Plaintiff further argues there was an element of special corporate or local benefit to the city in its operation and maintenance *311 of the zoo, thus making the activity proprietary in nature. He relies on the "benefit" test previously referred to in Wendler. The argument is not impressive, for it overlooks the essential characteristics of a zoo as a part of a public park being operated and maintained for the benefit and welfare of the public generally and not primarily for the inhabitants of the city.
In Harper v. City of Topeka, supra, this court stated:
"The maintenance of the park as described in the petition is clearly a governmental function. The city as a corporation derives no benefit therefrom, but the park is maintained for the benefit of the public without regard to residence...." (p. 15.)
The public nature of a zoo maintained by a city was emphasized in Hibbard v. City of Wichita, supra, wherein it was stated:
"Zoological gardens are commonly maintained in parks as a part thereof, under the same authority and for the same reasons that parks are maintained. The same liability should attach to keeping a zoological garden as attaches to the maintenance of a park. No profit is ordinarily received from such gardens. In the present case it does not appear that the defendant city received any profit whatever from its zoological garden. It was kept for the pleasure and education of the entire public...." (p. 499.)
In order for a function to take on a proprietary character, there must be shown some special local benefit accruing to the city itself and its inhabitants rather than to the public at large. Actual, pecuniary profit or gain is no longer required (Krantz v. City of Hutchinson, et al., supra), but whether or not the activity is commercial in nature is a matter of significance (Wendler v. City of Great Bend, supra). No substantial hint is given that the zoo operation in the instant case involves any of these characteristics; nor has anything been brought to our attention that would compel a departure from the holding in Hibbard that the maintenance of a zoo in a public park by a municipality is a governmental function.
Plaintiff further contends "the coyote running loose" constituted a nuisance created by the city, thereby making it liable even though engaged in a governmental function.
An exception to the general rule that a municipality is not liable for the negligent acts of its officers and employees in their performance of its governmental functions is recognized in this jurisdiction where the city's conduct results in the creation or maintenance of a nuisance. (Adams v. City of Arkansas City, 188 Kan 391, 362 P.2d 829; Lehmkuhl v. City of Junction City, 179 Kan. 389, 295 P.2d 621, 56 A.L.R. 2d 1409; Steifer v. City of Kansas City, 175 *312 Kan. 794, 267 P.2d 474; Jeakins v. City of El Dorado, 143 Kan. 206, 53 P.2d 798.)
Whether or not, in a given case, a nuisance has been created depends upon many factors, such as the type of neighborhood, the nature of the thing or wrong complained of, its proximity to those alleging injury or damage, its frequency, continuity or duration, and the damage or annoyance resulting, and each case must necessarily depend upon the particular facts and circumstances. (Lehmkuhl v. City of Junction City, supra; Steifer v. City of Kansas City, supra.) The foregoing rule was applied in Rose v. Board of Education, 184 Kan. 486, 337 P.2d 652, and was elaborated on in the following language:
"Running through the various definitions, however, and in the decisions upholding liability where the agency was engaged in a governmental function, is the proposition that the `nuisance' in question was in fact created and maintained by the city ... and that it had been in existence for some time as contrasted to an isolated instance of a temporary nature, ..." (Emphasis added.) (pp. 489-490.)
Here, it is not contended the coyote was outside its pen other than on the occasion when plaintiff was injured. This was an isolated instance of a temporary nature. For this and other obvious reasons the situation falls far short of being a nuisance as defined by this court. At most, this appears to be nothing more than an ordinary negligence case.
For the foregoing reasons we conclude that the city was acting in a governmental function, and the facts did not bring it within the nuisance exception to the immunity doctrine. There being no statute imposing liability, the district court correctly sustained the city's motion for summary judgment.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1502260/ | 434 A.2d 404 (1981)
Thomas JOHNSON, Appellant,
v.
Milton WEINBERG, et al., Appellees.
No. 80-251.
District of Columbia Court of Appeals.
Reargued May 18, 1981.[*]
Decided July 28, 1981.
*406 Harold A. Sakayan, Washington, D. C., with whom Gerald I. Holtz, Washington, D. C., was on the response to the petition for rehearing, for appellant.
Raymond L. Poston, Jr., Washington, D. C., filed the petition for rehearing, for appellees.
Before KELLY, FERREN, and PRYOR, Associate Judges.
PRYOR, Associate Judge:
Appellant, Thomas Johnson, brought suit to recover from appellees, Milton and Leanor Weinberg,[1] for injuries sustained when he was shot by a person alleged to be an employee of the Weinbergs while appellant was a patron at their laundromat. After extensive pretrial discovery, appellees moved for summary judgment. The court found there was no evidence that Leanor owned or operated the laundromat and thus granted the motion with respect to her, but denied it as to her husband, Milton. The claim against Milton proceeded to trial and at the close of appellant's case, the court directed a verdict in favor of Milton Weinberg, holding that the employee's actions were outside of the scope of his employment. Appellant contends here that the trial court erred in granting the motion for summary judgment, as the pleadings, depositions, interrogatories, admissions and other pretrial information of record, raise a genuine issue as to whether Leanor Weinberg is a joint owner of the laundromat. Additionally, appellant cites as error the granting of the directed verdict in favor of Milton Weinberg. Upon consideration of the questions, we affirm as to the former and reverse as to the latter.
I
The facts which precipitated this action are materially undisputed. On January 28, 1975, appellant visited a laundromat near his home at midday to launder some shirts. When he arrived, he observed Ezeal Boyd working in the laundromat, as had been the case on all previous occasions when he had used this laundromat. Boyd performed general cleaning duties at the laundromat and, on occasions when all machines were full, would empty them when the wash was completed, so that they would be available for other patrons. Appellant had no discussion with Boyd at that time; he simply deposited his shirts into a machine and returned to his nearby home.
When he returned for his shirts less than an hour later they were missing. He questioned Boyd about the shirts. Boyd responded that he didn't know their whereabouts. Appellant then left the laundromat and returned to his unattended minor son at home, where he remained until a woman friend arrived at approximately 4:45 p. m. to assist him in caring for the child. Accompanied by a male friend, Johnson made another trip to the laundromat in further search of his shirts. Still unable to get a satisfactory response from Boyd, Johnson attempted, in vain, to find the person whom he knew to be the manager of the business, Ms. Anna Schneider. Boyd suggested that Schneider would probably be there at about 6:30 that evening in order to close the premises.
At the time indicated, appellant again appeared at the laundromat, Ms. Schneider was not there as Boyd had anticipated; however, Boyd was still present. Appellant and Boyd had further discussion about the shirts which culminated in appellant saying, "forget it" and turning to leave. As he walked toward the door, he heard Boyd call out. He turned and was shot in the face by Boyd.
*407 II
Summary judgment is, of course, an extreme remedy and should only be granted where the record, at the time of the motion, reveals no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Maddox v. Bano, D.C.App., 422 A.2d 763 (1980); Turner v. American Motors General Corp., D.C. App., 392 A.2d 1005, 1006 (1978); Doolin v. Environmental Power LTD, D.C.App., 360 A.2d 493 (1976). While the proponent of the motion must shoulder the burden of proof, the opposing party is entitled to all favorable inferences which can be drawn from the evidence. Maddox, supra; Turner, supra; Harrison v. May Department Stores Co., Inc., D.C.App., 381 A.2d 610 (1977).
Thus, the narrow question for our review is whether, at the time of the hearing, there was sufficient evidence of record to permit a jury to consider the issue of implied partnership. This matter has not been adjudicated in the District of Columbia in a similar factual setting. We note, however, that in Cooper v. Spencer, 218 Va. 541, 238 S.E.2d 805 (1977) the joint ownership of a farm utilized for commercial purposes by a man and woman who may have shared gross returns,[2] was held not to create a partnership. A similar result was reached in Anderson v. Anderson, 54 Wis. 2d 666, 196 N.W.2d 727 (1972).
In this instance, in order to establish an implied partnership between Leanor and Milton Weinberg, appellant is compelled to rely solely on the joint ownership of the property which houses the laundromat. The tax returns of record do not purport to report the income of a partnership. To the contrary, it is reported that the business is a sole proprietorship. See Adams v. United States, 328 F. Supp. 228, 232 (D.Neb.1971).
In his complaint, appellant asserted that Milton and Leanor jointly owned and operated the commercial premises on which the shooting occurred. Appellees admitted that Milton owned the laundromat, but denied that Leanor had any interest therein. In response to interrogatories, the Weinbergs admitted that the building in which the laundromat is located is jointly owned by them.
On the other hand, Milton Weinberg is the sole signatory (as purchaser) of the contract for sale of the premises. He renovated the building without the participation of Leanor and was the sole applicant for the occupancy permit for the laundromat and two apartments located in the building. The license to run the laundromat is solely in Milton's name, and he alone is responsible for keeping the books and overseeing the management of the property. Finally, appellees' tax returns, though jointly filed, indicate that the business is being operated as a sole proprietorship. Given these circumstances, we think the court committed no error in concluding that Mrs. Weinberg was entitled to a judgment as a matter of law.
III
Appellant's primary contention is that the court erred in directing a verdict against him at the close of his evidence. We agree.
A directed verdict is only appropriate where the probative facts are undisputed and where reasonable minds can draw but one inference from them. Mills v. Cosmopolitan Insurance Agency, Inc., D.C. App., 424 A.2d 43, 45-46 (1980). When applying this standard, all evidence must be viewed in the light most favorable to the party against whom the motion is made. Id.; Corley v. BP Oil Corp., D.C.App., 402 A.2d 1258 (1979): "With the evidence so viewed, a verdict may be directed only when the evidence is so clear that reasonable men could reach but one conclusion. Bauman v. Sragow, D.C.App., 308 A.2d 243, 244 (1973). If there is room for a difference of opinion, the wise course is for the trial judge to allow the case to go to the jury. . . ." Id. at 1263, citing Seganish v. District of Columbia Safeway Stores, Inc., *408 132 U.S.App.D.C. 117, 122, 406 F.2d 653, 658 (1968); Mills v. Cosmopolitan Insurance Agency, Inc., supra at 46; Lee v. Fisco Enterprises, Inc., of Washington, D. C., D.C. App., 233 A.2d 44 (1967).
To prevail in his claim against appellees, appellant had the burden of proving that there was a master/servant relationship between the Weinbergs and Boyd, and that Boyd's action was within the scope of his employment. See Penn Central Transportation Co. v. Reddick, D.C.App., 398 A.2d 27, 29 (1979). The trial court concluded that there was a master/servant relationship, but held as a master of law, on the evidence adduced, no reasonable mind could conclude that when the shooting occurred, Boyd was acting within the scope of his employment. The principal question for this court, therefore, is whether the evidence discloses any basis upon which a juror could find that the shooting did occur within the scope of Boyd's employment.
Section 228 of the Restatement (Second) of Agency (1957), provides a general definition of "scope of employment":
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
Section 245 refers specifically to instances where the agent uses force and provides:
A master is subject to liability for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant's employment, although the act was unauthorized, if the act was not unexpected in view of the duties of the servant.
Thus in determining whether an assault occurred within the scope of employment, we look at the nature of the employee's job, whether the assault occurred while the employee was furthering his employer's business, whether the act was personal in nature and wholly unrelated to the employment relationships, and whether the act was totally unprovoked and unexpected.
Applying these criteria to a case in which a railroad brakeman seeking transportation from the train station, assaulted a taxicab driver, this court found, as a matter of law, that the employee "was in no sense, either wholly or partially [acting] in furtherance of . . . [the railroad's] business." Penn Central Transportation Company v. Reddick, supra at 32. We there found that the assault was to accomplish an independent and malicious end and therefore out of the scope of the employment relationship. In the case sub judice, the trial court primarily relied on that decision, and we think, misapplied the principles stated therein.
It is true that an employer will not be deemed liable for the intentional torts of an employee which are committed solely in furtherance of the latter's own interests, and not those of the employer. However, in viewing this narrower questionan employee's intentional tortit is equally clear that where a tort is the outgrowth of a job-related controversy, "then the employer remains liable, since the master and servant relationship is not broken." Id. at 30; see International Distributing Corp. v. American District Telegraph Co., 186 U.S.App.D.C. 305, 308, 569 F.2d 136, 139 (1977). See also Lyon v. Carey, 174 U.S. App.D.C. 422, 424, 533 F.2d 649, 651 (1976). The critical question to be resolved is whether the conduct in question was foreseeable as being within the range of responsibilities entrusted to the employee. Stated another way, and using the language of the Restatement (Second) of Agency, supra, whether "the act was not unexpectable in view of the duties of the servant."
In this case, Boyd was employed to clean the laundromat. In addition to his *409 regular duties, in the interest of his employer, when all of the washing machines were full he would remove clothes from the machines as they finished washing, so that empty machines would be available for other patrons. This service enhanced customer relations, but also placed Boyd in a position where it would be anticipated that problems of the nature described here could arise.[3] If a patron was unable to locate his or her laundry, once having deposited it, it seems likely that Boyd would be confronted in an effort to resolve the matter. "Whether the assault . . . was the outgrowth of a job-related controversy or simply a personal adventure of . . . [Boyd's], was a question for the jury." Lyon v. Carey, supra at 424, 533 F.2d at 651. There is certainly evidence from which a reasonable person could find that the shooting was the outgrowth of a job-related controversy: Boyd had no previous relations with Johnson which would indicate that the tort was personal; Johnson approached Boyd about a matter relating to the business (his missing shirts). After several futile attempts to locate his shirts, and further discussion with Boyd about the missing shirts, Boyd shot Johnson as he attempted to bring the conversation to a close and leave the premises. No subject unrelated to the missing shirts was ever made a part of the conversation between the men. The assault arose out of the transaction which initially brought Johnson to the premises (to launder shirts) and was triggered by a dispute over the conduct of the employer's business (missing shirts).[4]
Reasonable minds could find that the shooting arose out of and was related to Boyd's employment. See Lyon v. Carey, supra. Accordingly, it was a question of fact for the jury, rather than a question of law for the court, and the court committed error by taking the question from the jury.
Affirmed in part and reversed in part.
NOTES
[*] This case was initially argued on December 18, 1980 and an opinion rendered on March 3, 1981. We granted a petition for rehearing and, subsequent to reargument, modified the opinion as appears herein.
[1] Also named as a defendant was Ezeal Boyd, the employee who shot Johnson. Service was never obtained on Mr. Boyd. Group Health Association, Inc. was permitted to intervene in the proceedings to assert its subrogation claim for expenses incurred in the treatment of Mr. Johnson for the injuries he sustained when shot. The appeal of Group Health Association, Inc. was dismissed by order of this court dated July 22, 1980, on the grounds that its notice of appeal was untimely filed. We are concerned here solely with Johnson's claim against the Weinbergs.
[2] See D.C.Code 1973, § 41-306.
[3] The precise occurrence or event need not be foreseeable. Lyon v. Carey, supra.
[4] The case presents a decidedly different question from Penn Central, supra at 32, where we said: "There is nothing in the business of running a railroad that makes it likely that an assault will occur between a railroad brakeman and a taxicab driver over the celerity with which the latter will provide a taxicab ride to the former." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588001/ | 205 P.3d 890 (2009)
227 Or. App. 290
SCHENCK
v.
DISCOVER BANK.
Court of Appeals of Oregon.
April 1, 2009.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/97425/ | 221 U.S. 286 (1911)
MARCHIE TIGER
v.
WESTERN INVESTMENT COMPANY.
No. 60.
Supreme Court of United States.
Argued November 30, 1910.
December 1, 2, 1910.
Restored for reargument January 23, 1911.
Reargued March 1, 2, 1911.
Decided May 15, 1911.
ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA.
*287 Mr. W.L. Sturdevant, with whom Mr. M.L. Mott and Mr. W.A. Brigham were on the brief, for plaintiff in error.
Mr. George S. Ramsey and Mr. S.T. Bledsoe, with whom Mr. C.L. Thomas, Mr. L.J. Roach, Mr. Chris. M. Bradley and Mr. R.C. Allen were on the brief, for defendants in error.
Mr. Wade H. Ellis for the United States, by leave of the court.
Mr. S.T. Bledsoe and Mr. Evans Browne, as amici curioe, by leave of the court filed suggestions in support of the contentions of defendants in error.
Restored to docket for reargument January 23, 1911.
*298 MR. JUSTICE DAY delivered the opinion of the court.
This case involves the validity of conveyances made by Marchie Tiger, plaintiff in error, a full-blood Indian of the Creek tribe, to the defendants in error, the Western Investment Company, and Ellis H. Hammett, R.C. Allan and J.C. Pinson, copartners under the name of Coweta Realty Company.
The lands in controversy were located in the Indian Territory, were allotted under certain acts of Congress, to which we shall have occasion to refer later, and were inherited by Marchie Tiger during the year 1903 from his deceased brother and sisters, Sam, Martha, Lydia and Louisa Tiger, also members of the Creek nation, and allottees of the lands which passed by inheritance to Marchie Tiger.
According to the law of descent and distribution, which had been put in force in the Indian Territory, Marchie Tiger was the sole heir at law of his deceased brother and sisters. 32 Stat. 500, June 30, 1902, c. 1323; Mansfield's Dig. Arkansas Stat., c. 49, § 2522.
On August 8, 1907, Marchie Tiger sold and conveyed by warranty deed to the defendant in error, the Western Investment Company, certain of the said lands for the sum of $2,000.00, which was paid by the company. On July 1, 1907, Marchie Tiger sold and conveyed by warranty deed certain other of said lands to the Coweta Realty Company, and likewise sold and conveyed the same, in the same manner on July 26, 1907, on August 8, 1907, and on August 13, *299 1907, to the Coweta Realty Company, the consideration agreed to be paid by the company was $3,000.00, of which $558.00 was paid. The plaintiff in error offered to return the amounts paid by the respective purchasers, and made tender thereof which was refused, and this suit is brought to have the deeds in question cancelled, and the claim set aside as a cloud upon plaintiff's title.
Each and all of these conveyances were made without the approval of the Secretary of the Interior. The Supreme Court of Oklahoma held the conveyances valid and denied relief to the plaintiff in error. 21 Oklahoma, 630.
Two questions arise in the case. First: Could a full-blood Creek Indian, on and after the eighth day of August, 1907, convey the lands inherited by him from his relatives, who were full-blood Creek Indians, which lands had been allotted to them, so as to give a good title to the purchaser although the conveyance was made without the approval of the Secretary of the Interior. Second: If the legislation of Congress in question undertook to make such conveyances valid only when approved by the Secretary of the Interior, is it constitutional?
An answer to these questions requires a consideration of certain treaties and legislation concerning title to these lands. In 1833, the United States made a treaty with the Creek nation of Indians, in consideration of which they were to move to a new country west of the Mississippi, and to surrender all the lands held by them east of the Mississippi, and the United States agreed to convey to them a tract of land comprising what is now a part of the State of Oklahoma.
On August 11, 1852, in pursuance of this treaty the United States issued a patent for the tract of country mentioned, in which it was recited that the grantor, "in consideration of the premises and in conformity with the above recited provisions of the treaty aforesaid, has given *300 and granted, and by these presents does give and grant unto the Muskogee (Creek) Tribe of Indians the tract of country above mentioned, to have and to hold the same unto the said tribe of Indians so long as they shall exist as a nation and continue to occupy the country hereby assigned to them."
Upon this tract of land the Creeks became a settled people, and established a government. In 1893 the United States in pursuance of a policy which looked to the final dissolution of the tribal Government, took steps toward the distribution and allotment of the lands among the members of the tribe. On March 3, 1893, Congress passed an act (27 Stat. 645, chap. 209) which provides:
"SEC. 15. The consent of the United States is hereby given to the allotment of lands in severalty not exceeding one hundred and sixty acres to any one individual within the limits of the country occupied by the Cherokees, Creeks, Choctaws, Chickasaws and Seminoles; . . . and upon the allotment of the lands held by said tribes the reversionary interest of the United States therein shall be relinquished and shall cease."
Section 16 of the act provides for the appointment of commissioners to enter upon negotiations with the Cherokee, Choctaw, Chickasaw, Creek and Seminole Nations looking to the extinguishment of the tribal title to lands in the territory held by the nations or tribes, whether by cession of the same, or some part thereof, to the United States, or by allotment and division thereof in severalty among the Indians of such nations or tribes, or by such other method as may be agreed upon by such nations or tribes with the United States with a view to such adjustment on the basis of justice and equity, as might, with the consent of such nations or tribes, so far as might be necessary, be requisite and suitable to enable the ultimate creation of a State or States of the Union, which shall embrace the lands within the Indian Territory.
*301 After negotiations and legislation looking to the enrollment of the tribes entitled to citizenship, an act of Congress known as the Original Creek Agreement was passed. (Act of March 1, 1901, c., 676, 31 Stat. 861.)
Section 7 of that act contains certain restrictions upon the title of individual Indians after the same had been conveyed to them by the Creek Nation, with the approval of the Secretary of the Interior. Section 7 of the act of March 1, 1901, was amended by the act of June 30, 1902, 32 Stat. 500, c. 1323, known as the Supplemental Creek Agreement.
Section 16 of the act superseded § 7 of the first Creek agreement, and, as it contains the restriction on alienation of allotted lands, important to be considered, so much of that section as contains such restrictions is here quoted:
"SEC. 16. Lands allotted to citizens shall not in any manner whatever or at any time be encumbered, taken, or sold to secure or satisfy any debt or obligation, nor be alienated by the allottee or his heirs before the expiration of five years from the date of the approval of this supplemental agreement, except with the approval of the Secretary of the Interior. Each citizen shall select from his allotment forty acres of land, or a quarter of a quarter section, as a homestead, which shall be and remain non-taxable, inalienable, and free from any incumbrance whatever for twenty-one years from the date of the deed therefor, and a separate deed shall be issued to each allottee for his homestead, in which this condition shall appear."
This agreement was ratified by the action of the Creek National Council, and approved by the President of the United States August 8, 1902.
It is thus apparent that the five-year limitation created by § 16 of the act of 1902, upon the alienation of lands by the Creek Indians had expired when the conveyances in controversy were made.
*302 Within that five years, and about fifteen months before the expiration thereof, Congress passed the act of April 26, 1906 (34 Stat. 137, c. 1876), entitled an act to provide for the final disposition of the affairs of the Five Civilized Tribes in the Indian Territory, and for other purposes.
Sections 19, 20, 22 and 23 of the act are important to be considered, and are given in full in the margin.[1]
*303 Section 28 of the act provides for the continuance of the tribal governments of the Choctaw, Chickasaw, Cherokee, Creek and Seminole tribes or nations, but places certain restrictions upon their right of legislation, making the same subject to the approval of the President of the United States.
Section 29 of the act provides that all acts, and parts of acts, inconsistent with the provisions of the act be repealed.
As § 22 of the act is the one upon which the rights of the parties most distinctly turn, we here insert it:
*304 "SEC. 22. That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she belongs or belonged, may sell and convey the lands inherited from such decedent; and if there be both adult and minor heirs of such decedent, then such minors may join in a sale of such lands by a guardian duly appointed by the proper United States court for the Indian Territory. And in case of the organization of a State or Territory, then by a proper court of the county in which said minor or minors may reside or in which said real estate is situated, upon an order of such court made upon petition filed by guardian. All conveyances made under this provision by heirs who are full-blood Indians are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe."
It is the contention of the defendants in error that this section, when read in connection with § 16 of the act of 1902, above quoted, has the effect to require conveyances made by full-blood Indian heirs during the period from the passage of the act, of which § 22 is a part, until the expiration of the five years period named in § 16, to be approved by the Secretary of the Interior, but does not interfere with the capacity of such full-blood Indian heirs to convey the inherited lands after the expiration of the five years. This was the view entertained by the Supreme Court of Oklahoma in deciding this case.
In support of that view, it is insisted that the last sentence of § 22 must be read as a proviso, limiting and qualifying that which has gone before in the same section; that without this proviso the first part of the section would enable adult heirs of full blood to convey their inherited lands notwithstanding the five years limitation provided in § 16 had not expired, and that the real purpose of this section was to place such full-blood Indian heirs under *305 the protection of the Secretary of the Interior, so far as his approval was required, until the expiration of the five-year period named in § 16.
On the other hand, it is contended that the act of April 26, 1906, in the sections referred to, has undertaken to make new provision for the protection of full-blood Indians of the Five Civilized Tribes, and to place them, as to the alienation, disposition, and encumbrance of their lands, under restrictions such as shall operate to protect them, and to require the Secretary of the Interior to approve such conveyances, in order that such Indians shall part with their lands only upon fair remuneration, and when their interests have been duly safe-guarded by competent authority.
Previous legislation upon this subject differed as to the several nations.
As to the Seminoles, at the time of the passage of the act of April 26, 1906, the law forbade alienation prior to the date of the patent. The patent was to be made by the principal chief of the tribe when the tribal government ceased to exist. July 1, 1898, 30 Stat. 567, ch. 542.
The legislation concerning the Creeks we have already recited. Alienation was forbidden until expiration of the five-year period, to-wit: until August 8, 1907.
One section (14) of the Cherokee act provides there shall be no alienation within five years from the ratification of the act: another section (15) provides that Cherokee allotments, except homesteads, shall be alienable in five years after the issue of the patent. July 1, 1902, 32 Stat. 716, ch. 1375.
The Choctaw and Chickasaw act provided (§ 16) that:
"All lands allotted to the members of said tribes, except such land as is set aside to each for a homestead as herein provided, shall be alienable after issue of patent as follows: One-fourth of the acreage in one year, one-fourth acreage in three years, and the balance in five years in each case *306 from the date of the patent; provided, that such lands shall not be alienable by the allottee or his heirs at any time before the expiration of the Choctaw and Chickasaw tribal governments for less than its appraised value." Act of July 1, 1902, 32 Stat. 641, 643, ch. 1362.
In this case we are concerned with the construction of the act of April 26, 1906, so far as it involves the Creeks, and other statutes are mentioned with a view to aid in the construction of that act. It is the contention of the plaintiff in error that the act of April 26, 1906, repealed all former legislation upon the subject, and intended to provide, as to full-blood Indians of the tribes, new and important protection in the disposition of their landed interests, and that, as the act provides that previous inconsistent legislation shall be repealed, so far as the same subjects are covered in the new act it was intended to give additional protection to full-blood Indians and to prevent them from being deprived without adequate consideration of their lands and holdings; and that the real purpose of § 22, in so far as the adult heirs of the deceased Indians of the Five Civilized Tribes are concerned, is to subject conveyances of such lands, when made by full-blood Indians, to the approval of the Secretary of the Interior.
We think a consideration of this act and of subsequent legislation in pari materia therewith demonstrates the purpose of Congress to require such conveyances by full-blood Indians to be approved by the Secretary of the Interior.
The sections of the act of April 26, 1906, under consideration show a comprehensive system of protection as to such Indians. Under § 19 they are not permitted to alienate, sell, dispose of, or encumber allotted lands within twenty-five years unless Congress otherwise provides. The leasing of their lands, other than homesteads, for more than one year may be made under rules and regulations prescribed by the Secretary of the Interior. And in case of *307 the inability of a full-blood Indian, already owning a homestead, to work or farm the same, the Secretary may authorize the leasing of such homestead.
Under § 20 leases and rental contracts of full-blood Indians, with certain exceptions, are required to be in writing, subject to the approval of the Secretary of the Interior. Under § 23 authority is given "to all persons of lawful age and sound mind to devise and bequeath all his estate, real and personal, and all interest therein;" but no will of a full-blood Indian, devising real estate and disinheriting parent, wife, spouse, or children of a full-blood Indian, is valid until acknowledged before and approved by a judge of a United States court in the Territory or by the United States Commissioner.
Coming now to § 22, the first part of that section gives the adult heirs of any deceased Indian of either of the Five Civilized Tribes power to sell and convey the inherited lands named, with certain provisions as to joining minor heirs by guardians in such sales. This part of the statute would enable full-blood Indians, as well as others, to convey such lands as adult heirs of any deceased Indian, etc., but the last sentence of the section requires the conveyance made under this provision, that is, conveyances made by adult heirs of the character named in the first part of the section, when full-blood Indians, to be subject to the approval of the Secretary of the Interior. This construction is in harmony with the other provisions of the act, and gives due effect to all the parts of § 22. True, it has the effect to extend the requirement of the approval of the Secretary of the Interior as to full-blood Indians beyond the terms prescribed in § 16 of the act of 1902, and this, we think, was the purpose of Congress, which is emphasized in § 29 of the act wherein all previous inconsistent acts, and parts of acts, are repealed.
As to the argument that the last sentence of § 22 is to be construed as a proviso intended to limit the generality of *308 the previous part of the section, and not to affect prior legislation upon the subject, it may be observed: the sentence does not take the ordinary character of a proviso, and is not introduced as such, and, even if regarded as a proviso, it is well-known that independent legislation is frequently enacted by Congress under the guise of a proviso. Interstate Commerce Commission v. Baird, 194 U.S. 25, 36, and previous cases in this court therein cited.
Had Congress intended not to interfere with full-blood Indian heirs in their right to make conveyances after the expiration of the five years named in § 16 of the act of 1902, it would have been easy to have said so, and some reference would probably have been made to the prior legislation. No reference is made to the prior legislation, but it is broadly enacted that all conveyances of the character named in § 22 made by heirs of full-blood Indians shall be subject to the approval of the Secretary of the Interior.
The construction contended for by the defendant in error places Congress in the attitude of requiring such conveyances to be made with the approval of the Secretary of the Interior for the time between the passage of the act of 1906 and the expiration of the period named in the act of 1902, with unrestricted power thereafter to make such conveyances without such approval. Such construction is inconsistent with subsequent legislation of Congress upon the same subject, and which proceeds upon the theory that, in the understanding of Congress at least, restrictions still existed so far as the inherited lands of full-blood Indians were concerned.
Section 8 of the Act of May 27, 1908, 35 Stat. 312, c. 199, provides:
"SEC. 8. That section 23 of an act entitled `An act to provide for the final disposition of the affairs of the Five Civilized Tribes in the Indian Territory, and for other purposes,' approved April 26th, 1906, is hereby amended *309 by adding, at the end of said section the words, `or a judge of a county court of the State of Oklahoma.'"
Section 9 of that act provides:
"SEC. 9. That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee;" etc., etc. (35 Stat. 312.)
The obvious purpose of these provisions is to continue supervision over the right of full-blood Indians to dispose of lands by will, and to require conveyances of interests of full-blood Indians in inherited lands to be approved by a competent court.
When several acts of Congress are passed touching the same subject-matter, subsequent legislation may be considered to assist in the interpretation of prior legislation upon the same subject. Cope v. Cope, 137 U.S. 682; United States v. Freeman, 3 How. 556.
We cannot believe that it was the intention of Congress, in view of the legislation which we have quoted, to leave untouched the five-year restriction of the act of 1902, so far as the inherited lands of full-blood Indians are concerned, or to permit the same to be conveyed without restriction from the expiration of that five-year period until the enactment of the legislation of May, 1908.
In passing the enabling act for the admission of the State of Oklahoma, where these lands are, Congress was careful to preserve the authority of the Government of the United States over the Indians, their lands and property, which it had prior to the passage of the act. June 16, 1906, 34 Stat. 267, c. 3335.
We agree with the construction contended for by the plaintiff in error, and insisted upon by the Government, which has been allowed to be heard in this case, that the *310 act of April, 1906, while it permitted inherited lands to be conveyed by full-blood Indians, nevertheless intended to prevent improvident sales by this class of Indians, and made such conveyance valid only when approved by the Secretary of the Interior.
The further question arises in this case In view of the construction we have given the legislation of Congress, is it constitutional? It is insisted that it is not, because the Indian is a citizen of the United States and entitled to the protection of the Constitution, and that to add to the restrictions of the act of 1902 those contained in subsequent acts is violative of his constitutional rights and deprives him of his property without due process of law. It is to be noted in approaching this discussion that this objection is not made by the Indian himself; he is here seeking to avoid his conveyance. It is not made by the Creek Nation or Tribe, for it is stated without contradiction that the act of 1906 has been ratified by the council of that nation.
The unconstitutionality of the act is asserted by the purchasers from an Indian, who are the defendants in error here, and proceeds upon the assumption, that the Indian, at the time of the conveyance, August 8, 1907, had full legal title to the premises, which could not be impaired by legislation of Congress subsequent to the act of June 30, 1902.
Assuming that the defendants in error are in a position to assert such constitutional rights, is there anything in the fact that citizenship has been conferred upon the Indians, or in the changed legislation of Congress upon the subject, which marks a deprivation of such rights? We must remember in considering this subject that the Congress of the United States has undertaken from the earliest history of the Government to deal with the Indians as dependent people and to legislate concerning their property with a view to their protection as such. Cherokee *311 Nation v. Georgia, 5 Pet. 1, 17; Elk v. Wilkins, 112 U.S. 94, 99; Stephens v. Choctaw Nation, 174 U.S. 445, 484. We quote two of the many recognitions of this power in this court:
"The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that Government because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all tribes." United States v. Kagama, 118 U.S. 375, 384.
"Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the Government." Lone Wolf v. Hitchcock, 187 U.S. 553, 565.
Citizenship, it is contended, was conferred upon the Creek Indians by the act of March 3, 1901, 31 Stat. 447, amending the act of February 8, 1887, 24 Stat. 390, c. 119, by adding to the Indians given citizenship under that act "every Indian in the Indian Territory." So amended, the act would read as to such Indian: "He is hereby declared to be a citizen of the United States and entitled to all the rights, privileges and immunities of such citizen." Is there anything incompatible with such citizenship in the continued control of Congress over the lands of the Indian? Does the fact of citizenship necessarily end the duty or power of Congress to act in the Indian's behalf?
Certain aspects of the question have already been settled by the decisions of this court. That Congress has full power to legislate concerning the tribal property of the Indians has been frequently affirmed. Cherokee Nation v. *312 Hitchcock, 187 U.S. 294, 308; United States v. Rickert, 188 U.S. 432; McKay v. Kalyton, 204 U.S. 458.
Nor has citizenship prevented the Congress of the United States from continuing to deal with the tribal lands of the Indians.
In Cherokee Nation v. Hitchcock, 187 U.S. 294, 307, Mr. Justice White, speaking for the court, said:
"There is no question involved in this case as to the taking of property; the authority which it is proposed to exercise by virtue of the act of 1898, has relation merely to the control and development of the tribal property, which still remains subject to the administrative control of the Government, even though the members of the tribe have been invested with the status of citizenship under recent legislation."
In United States v. Rickert, 187 U.S. 432, Mr. Justice Harlan, speaking for the court, said:
"These Indians are yet wards of the Nation, in a condition of pupilage or dependency, and have not been discharged from that condition. They occupy these lands with the consent and authority of the United States; and the holding of them by the United States under the act of 1887, and the agreement of 1889, ratified by the act of 1891, is part of the national policy by which the Indians are to be maintained as well as prepared for assuming the habits of civilized life and ultimately the privileges of citizenship."
To the same effect have been the decisions of Circuit Courts of Appeals dealing with this subject. In the Circuit Court of Appeals for the Eighth Circuit this apposite language was used by Judge Thayer in speaking for the court:
"We know of no reason, nor has any been suggested, why it was not competent for Congress to declare that these Indians should be deemed citizens of the United States, and entitled to the rights, privileges and immunities *313 of citizens, while it retained, for the time being, the title to certain lands, in trust for their benefit, and withheld from them for a certain period the power to sell, lease or otherwise dispose of their interest in such lands. It is competent for a private donor, by deed or other conveyance, to create an estate of that character; that is to say, it is competent for a private person to make a conveyance of real property, and to withhold from the donee, for a season, the power to sell or otherwise dispose of it. And we can conceive no sufficient reason why the United States, in the exercise of its sovereign power, should be denied the right to impose similar limitations, especially when it is dealing with a dependent race like the Indians, who have always been regarded as the wards of the Government. Citizenship does not carry with it the right on the part of the citizen to dispose of land which he may own in any way that he sees fit without reference to the character of the title by which it is held. The right to sell property is not derived from, and is not dependent upon, citizenship; neither does it detract in the slightest degree from the dignity or value of citizenship that a person is not possessed of an estate, or, if possessed of an estate, that he is deprived for the time being, of the right to alienate it." Beck v. Flournoy Live Stock Co., 65 Fed. Rep. 30, 35.
To the same effect is Rainbow v. Young, 161 Fed. Rep. 835, in which the opinion was by Circuit Judge, now Mr. Justice Van Devanter. In that case, after referring to the fact that while the members of the Winnebago tribe had received allotments in severalty and had become citizens of the United States and of the State of Nebraska, their tribal relation had not terminated, and they were still unable to alienate, mortgage or lease their allotments without the consent of the Secretary of the Interior, Judge Van Devanter said: "In short, they are regarded as being in some respects still in a state of dependency and tutelage, which entitles them to the care and protection *314 of the national Government; and when they shall be let out of that state is for Congress alone to determine." The Rainbow Case was cited with approval by Mr. Justice Brewer in delivering the opinion in United States v. Sutton, 215 U.S. 291, 296.
Much reliance is placed upon Matter of Heff, 197 U.S. 488. In that case it was held that a conviction could not be had under the Federal statute for selling liquor to an Indian, the sale not being on a reservation, and the Indian having been made a citizen and subject to the civil and criminal laws of the State. In that case the opinion was by Mr. Justice Brewer, who also delivered the opinion in the case of United States v. Celestine, 215 U.S. 278.
In the Celestine Case it was held that although an Indian had been given citizenship of the United States, and of the State in which an Indian reservation was located, the United States might still retain jurisdiction over him for offenses committed within the limits of the reservation. In the opinion the subject was fully reviewed by Mr. Justice Brewer. In the course of it he quoted with approval from the opinion of Mr. Justice McKenna, sitting as a Circuit Judge, in Eells v. Ross, 12 C.C.A. 205, holding that the act of 1887, conferring citizenship upon the Indians, did not emancipate them from control or abolish the reservation. Mr. Justice Brewer also quoted from the Heff Case, commenting upon the change of policy in the Government which looked to the establishment of the Indians in individual homes, free from National guardianship, charged with the rights and obligations of citizens of the United States, and held that it was for Congress to determine when and how the relation of guardianship theretofore existing should be determined; and after quoting from the Heff Case, said (215 U.S. 290):
"Notwithstanding the gift of citizenship, both the defendant and the murdered woman remained Indians by race, and the crime was committed by one Indian *315 upon the person of another, and within the limits of a reservation. Bearing in mind the rule that the legislation of Congress is to be construed in the interest of the Indian, it may fairly be held that the statute does not contemplate a surrender of jurisdiction over an offense committed by one Indian upon the person of another Indian within the limits of the reservation; at any rate, it cannot be said to be clear that Congress intended by the mere grant of citizenship to renounce entirely its jurisdiction over the individual members of this dependent race."
In United States v. Sutton, supra, following United States v. Celestine, it was held that jurisdiction continued over the Indians as to offenses committed within the limits of an Indian reservation, and that Congress might prohibit the introduction of liquor into the Indian country. In Matter of Heff, supra, this court said (p. 509): "But the fact that property is held subject to a condition against alienation does not affect the civil or political status of the holder of the title."
Taking these decisions together, it may be taken as the settled doctrine of this court that Congress, in pursuance of the long-established policy of the Government, has a right to determine for itself when the guardianship which has been maintained over the Indian shall cease. It is for that body, and not the courts, to determine when the true interests of the Indian require his release from such condition of tutelage.
The privileges and immunities of Federal citizenship have never been held to prevent governmental authority from placing such restraints upon the conduct or property of citizens as is necessary for the general good. Incompetent persons, though citizens, may not have the full right to control their persons and property. The privileges and immunities of citizenship were said, in the Slaughter-House Cases, (16 Wall. 36, 76), to comprehend:
"Protection by the Government with the right to acquire *316 and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may prescribe for the general good of the whole."
Conceding that Marchie Tiger by the act conferring citizenship obtained a status which gave him certain civil and political rights, inhering in the privileges and immunities of such citizenship unnecessary to here discuss, he was still a ward of the Nation so far as the alienation of these lands was concerned, and a member of the existing Creek Nation. The inherited lands, though otherwise held in fee, were inalienable without the consent of the Secretary of the Interior, until August, 1907, by virtue of the act of Congress. In this state of affairs Congress, with plenary power over the subject, by a new act permitted alienation of such lands at any time subject only to the condition that the Secretary of the Interior should approve the conveyance.
Upon the matters involved our conclusions are that Congress has had at all times, and now has, the right to pass legislation in the interest of the Indians as a dependent people; that there is nothing in citizenship incompatible with this guardianship over the Indian's lands inherited from allottees as shown in this case; that in the present case when the act of 1906 was passed, the Congress had not released its control over the alienation of lands of full-blood Indians of the Creek Nation; that it was within the power of Congress to continue to restrict alienation by requiring, as to full-blood Indians, the consent of the Secretary of the Interior to a proposed alienation of lands such as are involved in this case; that it rests with Congress to determine when its guardianship shall cease, and while it still continues it has the right to vary its restrictions upon alienation of Indian lands in the promotion of what it deems the best interest of the Indian.
As we have construed the statute involved, while it permits *317 the conveyance of inherited lands of the character of those in issue, it requires such conveyance to be made with the approval of the head of the Interior Department.
For the reasons we have stated, we find nothing unconstitutional in the act making this requirement.
The judgment of the Supreme Court of Oklahoma is reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion.
Reversed.
NOTES
[1] "SEC. 19. That no full-blood Indian of the Choctaw, Chickasaw, Cherokee, Creek or Seminole tribes shall have power to alienate, sell, dispose of, or encumber in any manner any of the lands allotted to him for a period of twenty-five years from and after the passage and approval of this act, unless such restriction shall, prior to the expiration of said period, be removed by act of Congress; and for all purposes the quantum of Indian blood possessed by any member of said tribes shall be determined by the rolls of citizens of said tribes approved by the Secretary of the Interior: Provided, however, that such full-blood Indians of any of said tribes may lease any lands other than homesteads for more than one year under such rules and regulations as may be prescribed by the Secretary of the Interior; and in case of the inability of any full-blood owner of a homestead, on account of infirmity or age, to work or farm his homestead, the Secretary of the Interior, upon proof of such inability, may authorize the leasing of such homestead under such rules and regulations: Provided, further, that conveyances heretofore made by members of any of the Five Civilized Tribes subsequent to the selection of allotment and subsequent to removal of restriction, where patents thereafter issue, shall not be deemed or held invalid solely because said conveyances were made prior to issuance and recording or delivery of patent or deed, but this shall not be held or construed as affecting the validity or invalidity of any such conveyance, except as hereinabove provided; and every deed executed before or for the making of which a contract or agreement was entered into before the removal of restrictions, be and the same is hereby declared void: Provided further, That all lands upon which restrictions are removed shall be subject to taxation, and the other lands shall be exempt from taxation as long as the title remains in the original allottee.
"SEC. 20. That after the approval of this act all leases and rental contracts, except leases and rental contracts for not exceeding one year for agricultural purposes for lands other than homesteads of full-blood allottees of the Choctaw, Chickasaw, Cherokee, Creek and Seminole tribes shall be in writing, and subject to approval by the Secretary of the Interior and shall be absolutely void and of no effect without such approval: Provided, That allotments of minors and incompetents may be rented or leased under order of the proper court: Provided further, that all leases entered into for a period of more than one year shall be recorded in conformity to the law applicable to recording instruments now in force in said Indian Territory.
"SEC. 22. That the adults heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to-whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she belongs or belonged, may sell and convey the lands inherited from such decedent; and if there be both adult and minor heirs of such decedent then such minors may join in a sale of such lands by a guardian duly appointed by the proper United States Court for the Indian Territory; and in case of the organization of a State or Territory, then by a proper court of the county in which said minor or minors may reside, or in which said real estate is situated, upon an order of such court made upon petition filed by guardian. All conveyances made under this provision by heirs who are full-blood Indians are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe.
"SEC. 23. Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein; Provided, That no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse or children of such full-blood Indian, unless acknowledged before and approved by a judge of the United States Court for the Indian Territory or a United States Commissioner." 34 Stat. L. 137. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1920113/ | 921 So. 2d 681 (2006)
Ernest WILLIS, Sunday Willis, and Matthew Giacomino, Appellants,
v.
RED REEF, INC., a Florida Corporation, Appellee.
Nos. 4D04-1924, 4D04-2013.
District Court of Appeal of Florida, Fourth District.
January 25, 2006.
Rehearing Denied March 21, 2006.
*682 Lance A. Harke and David J. Maher of Harke & Clasby LLP, Miami, for appellants.
Stephen Rakusin of The Rakusin Law Firm, Fort Lauderdale, for appellee.
HOROWITZ, ALFRED J., Associate Judge.
Ernest and Sunday Willis appeal a final judgment which 1) found that they fraudulently transferred assets and 2) imposed an equitable lien upon their homestead property. Red Reef, Inc. cross-appeals the final judgment arguing there were several *683 defects in the final judgment. Matthew Giacomino filed a notice of appeal of the same final judgment; however, he voluntarily dismissed his appeal. This court sua sponte consolidated these cases for all purposes. We affirm in part, reverse in part, and remand for further proceedings.
In 1989, Ernest Willis, his wife Sunday Willis, and Matthew Giacomino formed Ocean One North, Inc. for the sole purpose of owning and managing a commercial building located at One North Ocean Boulevard in Boca Raton, Florida. On February 16, 1996, Red Reef, Inc. entered into a lease agreement with Ocean One whereby Red Reef was to lease certain premises in the Ocean One building so that Red Reef could operate a restaurant. Ultimately, Ocean One breached the lease agreement by failing to allow Red Reef to occupy the leased premises.
On November 13, 1996, Red Reef filed a lawsuit against Ocean One in county court seeking specific performance of the lease and "damages that do not exceed $15,000 exclusive of attorney's fees and costs." In addition to the litigation with Red Reef, another tenant, PNR, Inc., had also brought suit against Ocean One. Just prior to Red Reef's county court suit being administratively dismissed, Ocean One entered into an Agreement for the Purchase and Sale of the building to an unrelated third party. The purchase price was $3,100,000. The closing occurred on or about April 27, 1998. In accordance with the terms of the settlement statement, Ocean One retained virtually no proceeds from the sale of the subject property. After payment of expenses, the remaining proceeds of sale were disbursed with the Willises receiving $1,200,000 and Giacomino receiving $1,900,000. The Willises' proceeds were deposited directly into their joint checking account. Immediately thereafter, the Willises used $490,345.19 of the proceeds they received from the sale of Ocean One's building to pay off the mortgage on their homestead property in Boca Raton.
In June 1998, Red Reef successfully had the trial court set aside the order administratively dismissing its lawsuit. In February 2000, Red Reef filed an amended complaint and the case was transferred to circuit court. On December 18, 2001, the trial court entered an amended final judgment against Ocean One, in which the court awarded Red Reef damages in the amount of $1,523,684.24.
On March 27, 2002, Red Reef filed a new six-count complaint against the Willises and Giacomino alleging fraudulent transfers of corporate assets, alter ego liability, and tortious civil conspiracy. After a non-jury trial, the court entered a final judgment dated April 21, 2004, determining that Red Reef was entitled to recover from the Willises and Giacomino under the first three counts: fraudulent transfers in violation of section 726.105(1)(a), Florida Statutes; fraudulent transfers in violation of section 726.105(1)(b), Florida Statutes; and fraudulent transfers in violation of section 726.106(1), Florida Statutes. The court found the defendants were not liable on the other three counts: fraudulent transfers in violation of section 726.106(2), Florida Statutes; tortious civil conspiracy; and alter ego liability. Further, the court imposed "an equitable lien and/or constructive trust" on the homestead property of the Willises in the amount of $490,395.19, plus prejudgment interest.
The Willises argue that they were entitled to a directed verdict as to the first three counts of Red Reef's complaint. We disagree. The trial court found that the Willises committed violations of the Fraudulent Transfer Act and the court's findings were supported by competent substantial evidence in light of the fact that both PNR *684 and Red Reef had claims against Ocean One at the time of the transfers.
The remaining issue is whether the Willises lost the homestead protection afforded by article X, section 4(a)(1) of the Florida Constitution by paying off their mortgage with the proceeds from the sale of the Ocean One building. The plain language of the Florida Constitution indicates that homesteads in Florida may not be used to satisfy court judgments except in three specifically enumerated instances: (1) unpaid property taxes for the homestead itself; (2) mortgages for the purchase or improvement of the homestead itself; or (3) mechanics' liens for work performed on the homestead.
The crux of Red Reef's position with respect to the trial court imposing an equitable lien/constructive trust on the Willises' homestead property rests on its interpretation of Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla.2001). Red Reef argues that the funds used to pay off the mortgage are clearly traceable as being the funds the Willises directly received in their personal joint account from the sale of the building by Ocean One. However, the analysis of this issue is not determined by Red Reef's ability to trace funds to Ocean One. The supreme court in Havoco ruled that article X, section 4 exempts a Florida homestead, even where the debtor acquired the homestead using non-exempt funds with the specific intent of hindering, delaying, or defrauding creditors. Id. at 1019. The imposition of equitable liens on homesteads is limited to cases in which the homesteads were purchased with the fruits of fraudulent activity. See Palm Beach Sav. & Loan Ass'n, F.S.A. v. Fishbein, 619 So. 2d 267 (Fla.1993) (equitable lien granted on homestead where funds used to extinguish mortgages on the homestead were obtained by fraud and forgery); Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (1925) (trustee entitled to equitable lien against homestead for amount of embezzled funds used to improve homestead).
The Havoco court specifically stated: "We have invoked equitable principles to reach beyond the literal language of the exceptions only where funds obtained through fraud or egregious conduct were used to invest in, purchase, or improve the homestead." Id. at 1028. In Havoco, the funds used to purchase the homestead were not obtained through fraud. Notwithstanding that the Willises fraudulently diverted the proceeds of the sale of the Ocean One property to their own personal accounts, this is not the "fraud or egregious conduct" that the supreme court indicated could give rise to an equitable lien on homestead property. Red Reef did not provide the Willises with the funds that were used to pay off the mortgage on their homestead. Red Reef's claim instead arose on a breach of lease action against Ocean One that resulted in a damages award over three years after the fraudulent transfer. The Willises did not fraudulently obtain funds from Red Reef to extinguish the mortgage on their homestead. In essence, non-exempt assets may be converted into an exempt homestead even if this is done with an actual intent to hinder, delay, or defraud creditors. Therefore, the trial court erred in imposing an equitable lien/constructive trust on the Willises' homestead property.
Red Reef's cross-appeal raises several alleged defects in the final judgment of April 21, 2004. On remand, the trial court should calculate the prejudgment interest due Red Reef on the damages awarded in the final judgment. See Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212 (Fla. 1985). Further, the final judgment should provide that the damages accrue post-judgment interest as set forth in section 55.03, Florida Statutes. While case law *685 does not require the traditional language "for which let execution issue," see Friedman v. Friedman, 825 So. 2d 1010 (Fla. 4th DCA 2002), as a practical matter, including the same will eliminate any issue in that regard should Red Reef apply for a writ of execution from the clerk of court. We find no merit to Red Reef's remaining points on appeal.
Affirmed in part, reversed in part, and remanded with directions.
KLEIN and MAY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920128/ | 921 So. 2d 830 (2006)
Jon LINN, a/k/a John Linn, Appellant,
v.
STATE of Florida, Appellee.
No. 2D04-5474.
District Court of Appeal of Florida, Second District.
March 3, 2006.
*831 James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.
CANADY, Judge.
Jon Linn appeals the circuit court's denial of his motion for judgment of acquittal, following his conviction for uttering a forged instrument. In his trial testimony, Linn explained how he came into possession of the instrument and testified that he did not know it was forged. Because the State failed to present evidence from *832 which the jury could exclude every reasonable hypothesis except that of guilt, we conclude that the trial court erred in denying the motion for judgment of acquittal.
I. Background
Linn was charged by information with uttering a forged instrument, in contravention of section 831.02, Florida Statutes (2004). The State alleged Linn attempted to cash a forged check for $376.50, drawn from the account of Lester Wagler.
At trial, Wagler testified he had been carrying a folded blank check in his wallet and did not realize the check was missing until his bank notified him that someone was attempting to cash the check. Wagler testified he was not certain how or when he lost the check but believed the check had either been stolen from him or had fallen out of his wallet. Wagler identified the phone number and address on the check in question as his own but denied writing a notation for house repairs on the memo line. Wagler also denied writing the amount for $376.50 and denied signing his name on the check. Wagler testified he did not know Linn and had never seen him before.
Elsy Raman, a teller at the Bank of America, testified that on April 15, 2004, Linn presented the check at issue, along with his current driver's license and an expired Bank of America check cashing card containing his picture. Raman testified she had a "gut feeling that something was wrong" so she obtained Linn's thumb print and told Linn to wait while she verified the signature. Raman then looked up Wagler's account to verify the signature. After discovering the signature on the check did not match the signature on file in Wagler's account and after conferring with another teller, Raman unsuccessfully attempted to contact Wagler. Raman then returned to where Linn was waiting, advised him that there was a problem with the check because the signatures did not match, and turned the check, driver's license, and check cashing card over to her supervisor.
Cathy Johnson, the assistant banking center manager, testified that after Raman handed her the items, she confirmed the signatures did not match and called the police. Johnson testified that although she did not speak directly to Linn, she overheard him say that he did not write the check and that someone else wrote it. Johnson testified Linn waited in the bank lobby until he was told the check would not be cashed and his check cashing card would be kept by the bank because his account was closed. Linn subsequently left the bank without the check or the check cashing card.
A Manatee County Sheriff's deputy testified the check was made out to "Jon D. Linn," while Linn's check cashing card bore the name of "Jon D. Linn, II." The deputy testified that an attempt to lift fingerprints off the check and check cashing card was unsuccessful.
After the State rested, defense counsel moved for judgment of acquittal arguing the State failed to prove that the check was forged or that Linn knew it was forged. The trial court reserved ruling on the motion.
Linn's mother, Anna Mae Lahay, testified she witnessed her son receive a check as payment for car repairs from a customer who identified himself as Lester Wagler. Lahay provided a description of the customer.
Linn testified in his own defense and denied knowing Wagler. According to Linn's testimony, on April 15, 2004, he received a call from someone inquiring about replacing the CV joints on his car. The person identified himself as Lester Wagler. Linn testified that he has several *833 friends who refer work to him, that the caller probably mentioned who referred him, but that Linn was unable to identify which friend it might have been. After the customer brought the car to Linn's house, Linn purchased the parts, performed the repairs, and then contacted the customer via a cell phone belonging to a person who was with the customer. Linn told the customer he only accepted cash and charged the customer $376.50 for parts and labor. However, upon his return, the customer claimed he only had a check. Linn told him to make it out to "Jon D. Linn." Linn testified he did not believe the check was forged and he did not ask the customer for identification. When questioned why the check was dated for April 14, 2004, when the repairs were not performed until April 15, 2004, Linn testified he did not know what the correct date was at the time. Linn also testified he did not notice the notation for "house repairs" because he was in a hurry to get to the bank.
Linn testified he waited at the bank while the teller verified the signatures and he only left when the bank employees refused to cash the check and refused to provide him with the address on the check.
Linn explained that he no longer had a receipt for the car parts because he gave the receipt to the customer due to the lifetime warranty on the parts. Linn also maintained that after he left the bank, he attempted to contact the customer at the cell phone number he previously used but no one answered and the number was disconnected about a week later.
After the defense rested, the State declined to call rebuttal witnesses and defense counsel again moved for judgment of acquittal. In support of the motion for judgment of acquittal, defense counsel argued that there was only circumstantial evidence that Linn knew the check was forged and that the State had "failed to rebut the defendant's hypothesis of innocence." The motion was denied.
The jury found Linn guilty of uttering a forged instrument, and defense counsel renewed the motion for judgment of acquittal. That motion was also denied. The circuit court withheld adjudication, sentenced Linn to time served, and imposed a fine. Linn now appeals.
II. Analysis
A. The Actual Knowledge Element of Uttering a Forged Instrument
Section 831.02 provides that the crime of uttering a forged instrument has the following elements: (1) uttering and publishing as true a false, forged, or altered instrument; (2) knowing the instrument to be false, altered, forged, or counterfeited; and (3) intending to injure or defraud. "The crime is completed by presentation of the forged instrument for payment, regardless of whether or not the bank actually makes any payment to the defendant." Henderson v. State, 572 So. 2d 972, 974 (Fla. 3d DCA 1990).
Under section 831.02, it is not sufficient for the State to show that the defendant should have known the instrument was forged. Instead, the State is required to prove the defendant had actual knowledge that the check had been forged. Such knowledge may be proved by circumstantial evidence. See J.N.W. v. State, 361 So. 2d 826, 826 (Fla. 1st DCA 1978) (holding that "the circumstantial evidence of [defendant's] guilty knowledge was sufficient" to support his conviction for uttering a forged instrument). Here, the State's case against Linn relied on circumstantial evidence to establish that Linn knew the instrument was forged. The State adduced no direct evidence that Linn had actual knowledge of the forgery.
*834 B. The State's Burden in Circumstantial Evidence Cases
A motion for judgment of acquittal should be granted only where "the evidence is such that no view which the jury may lawfully take of it favorable to the [State] can be sustained under the law." Lynch v. State, 293 So. 2d 44, 45 (Fla.1974). "[A] special standard of review applies," however, when proof of one or more elements of the offense depends entirely on circumstantial evidence. Boyd v. State, 910 So. 2d 167, 180 (Fla.2005). In such a case, a motion for judgment of acquittal should be granted "if the [S]tate fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt." State v. Law, 559 So. 2d 187, 188 (Fla.1989). The State is not required to "`rebut conclusively every possible variation' of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events." Id. at 189 (footnote omitted) (citation omitted). In order to avoid the entry of a judgment of acquittal the State must therefore meet this "threshold burden" of presenting evidence which is inconsistent with the defendant's reasonable hypothesis of innocence. Id.
"[I]t is for the court to determine, as a threshold matter, whether the [S]tate has been able to produce competent, substantial evidence to contradict the defendant's story. If the [S]tate fails in this initial burden, then it is the court's duty to grant a judgment of acquittal to the defendant...."
Id. (quoting Fowler v. State, 492 So. 2d 1344, 1347 (Fla. 1st DCA 1986)).
Accordingly, where the State relies entirely on circumstantial evidence to establish a defendant's knowledge that an instrument was forged, the defendant's reasonable hypothesis of innocence that he lacked knowledge that the instrument was forged requires the entry of a judgment of acquittal unless the State has presented competent evidence inconsistent with the defendant's theory of events. See Heath v. State, 382 So. 2d 391, 392 (Fla. 1st DCA 1980) (holding that State failed to prove defendant knew check had been forged where evidence failed to rebut defendant's story that he sold tent to hitchhiker in return for check); Lampley v. State, 214 So. 2d 515, 516 (Fla. 3d DCA 1968) (reversing conviction where there was absence of evidence as to how or when check came into defendant's possession, other than his testimony that he found check and was attempting to turn it in rather than cash it, and there was nothing to refute defendant's testimony that he was without knowledge that check was forged).
C. Linn's Reasonable Hypothesis of Innocence
In arguing that it produced evidence inconsistent with Linn's hypothesis of innocence, the State points out that Linn's first name Jon was spelled correctly on the check, despite its unusual spelling. The State maintains it would be unlikely for someone who did not know Linn to spell his first name correctly and contends that this circumstance shows Linn's guilty knowledge. The State also appears to argue that the incorrect date and notation for house repairs on the check were "red flags" sufficient to prove Linn's knowledge of the forgery.
Linn's testimony accounted for all these factors, and the State failed to provide evidence inconsistent with Linn's explanation. Moreover, in the circumstances present there, the correct spelling of Linn's name and the minor error in the date inscribed on the check are wholly insufficient to raise an inference of guilty knowledge. While the inaccurate notation *835 regarding home repairs may have been sufficient to prove that Linn should have known the check had been forged, it does not prove Linn actually knew the check had been forged, as is required for Linn to be convicted of violating section 831.02.
Contrary to the State's argument, the fact that Linn stated he did not write the check is not inconsistent with his hypothesis of innocence rather, it supports it. Notably, the statement was made after Linn was notified there was a problem with the check. We have previously held that a defendant's statement disclaiming responsibility did not constitute proof of his knowledge. See Woods v. State, 765 So. 2d 255, 257 (Fla. 2d DCA 2000). There is no basis for applying a different standard to Linn.
Although the State points to other factors, such as Linn's inability to say who referred the customer, his inability to provide a cell phone number, and his inability to provide a receipt for the car parts, Linn provided reasonable explanations for each of these factors which were consistent with his hypothesis of innocence. And the State presented no evidence that was inconsistent with Linn's explanation.
We do not agree with the dissent's characterization of Linn's hypothesis of innocence as "not reasonable." It is a common occurrence for businesses to innocently receive forged checks from customers. Linn's defense was that he was a victim of such an occurrence. The uncontradicted defense is undeniably reasonable because such events undeniably occur with great regularity. All the circumstances cited by the dissent to show the supposed unreasonableness of Linn's hypothesis of innocence suggest nothing more than that Linn had a less than perfect memory and engaged in sloppy business practices. Those circumstances do not in any way contradict Linn's version of events. See Porter v. State, 752 So. 2d 673, 678-79 (Fla. 2d DCA 2000) (stating that in applying standard concerning "whether there was substantial, competent evidence for a jury to ... conclude" that "every reasonable hypothesis but that of guilt" was excluded, "the version of events related by the defense must be believed if circumstances do not show that version to be false").
There is nothing in Sorey v. State, 419 So. 2d 810 (Fla. 3d DCA 1982) the primary case cited in the dissent which is inconsistent with our application of the well-established principle that the State has the burden of presenting evidence to contradict a defendant's reasonable hypothesis of innocence in a circumstantial evidence case. In Sorey, the jury was "free to reject the reasonableness," 419 So. 2d at 815, of the hypothesis of innocence suggested by defense counsel because the defense "presented no testimony," 419 So. 2d at 814, to support the hypothesis. There was no evidentiary basis for the version of events suggested by defense counsel, and the State "was not obliged to contradict defense counsel's unsupported hypothesis." Id. at 814.
As the court in Sorey recognized, however, if the defendant "shows through testimony" that incriminating circumstantial evidence can be "reasonably explain[ed]," the defendant's "version of events ... must be accepted as true unless contradicted by other proof showing the defendant's version to be false." Id. Here, as we have already discussed, Linn reasonably explained his possession of the check and his lack of knowledge that the check was forged, and the State provided no proof contradicting any aspect of Linn's version of events. Cf. Hale v. State, 651 So. 2d 97, 97 (Fla. 2d DCA 1994) ("The circumstantial evidence standard does not require the jury to believe the defense *836 version of the facts when the [S]tate has produced conflicting evidence.").
III. Conclusion
Weighing the evidence in the light most favorable to the State under the special standard applicable in circumstantial evidence cases, we conclude that the State failed to meet its burden of presenting evidence refuting Linn's reasonable hypothesis of innocence. Therefore, the trial court should have granted Linn's motion for judgment of acquittal. Linn's conviction and sentence are reversed, and the case is remanded with instructions that a judgment of acquittal be entered.
Reversed and remanded.
FULMER, C.J., Concurs.
WHATLEY, J., Dissents with opinion.
WHATLEY, Judge, Dissenting.
I respectfully dissent. To be effective, a reasonable hypothesis of innocence must be reasonable. Here, Linn's hypothesis of innocence was not reasonable and was rejected by the jury. In Sorey v. State, 419 So. 2d 810, 814-815 (Fla. 3d DCA 1982), the court noted, "While Sorey's counsel was free to make this argument, the jury was free to reject the reasonableness of his hypothesis." State v. Rudolph, 595 So. 2d 297, 298 (Fla. 5th DCA 1992) (Cobb, J., concurring) (quoting State v. Law, 559 So. 2d 187, 188-89 (Fla.1989)), set forth the rule that: "The state is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events." See also Perez v. State, 565 So. 2d 743 (Fla. 3d DCA 1990).
The evidence for the jury to consider included: (1) Linn testified he purchased CV joints from Discount Auto, yet Linn had no receipt for the purchase or store employee to confirm such purchase; (2) Linn testified he purchased the parts for $79 each before being paid by a customer unknown to him; (3) Linn testified he was referred to the customer by a friend, but could not recall the friend's name; (4) Linn accepted a check for payment, even though his policy was cash and the check was in a crumpled and folded condition; (5) Linn testified that he did not realize that the wrong date was on the check and he did not notice the notation on the check, "for house repairs"; (6) Linn testified he did not ask the customer for identification; (7) Linn did not have the tag number or vin number of the vehicle allegedly worked on and was uncertain of the model year of the vehicle; and (8) after being allegedly and wrongfully divested of his services and cash, Linn failed to report such crime to law enforcement.
Simply stated, this was a matter for resolution by the jury. See Hale v. State, 651 So. 2d 97 (Fla. 2d DCA 1994). I would affirm the conviction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920158/ | 921 So. 2d 798 (2006)
Donna Jean JOHNSON-GAINER, Appellant,
v.
Riley Maxwell GAINER, Jr., Appellee.
Nos. 5D04-3158, 5D04-4302.
District Court of Appeal of Florida, Fifth District.
February 24, 2006.
John S. Mills, of Mills & Carlin, P.A., and Albert Datz of Datz & Datz, P.A., Jacksonville, for Appellant.
Michael J. Korn of Korn & Zehmer, P.A., and James G. Roberts of Roberts & Reiter, P.A., Jacksonville, for Appellee.
PLEUS, C.J.
In this consolidated appeal, the former wife appeals from a final judgment of dissolution of marriage and a post judgment order denying her request for additional attorney's fees. We have thoroughly reviewed the record and conclude that the following deficiencies require reversal and remand for further consideration.
The final judgment of dissolution is deficient in that it approves the former husband's payment of his temporary support obligation from a marital asset, the Schwab marital account, without adequate findings of fact. The former husband's temporary support obligation could not be satisfied from a marital asset unless the former husband established through substantial competent evidence, and the trial court found, that he had no other means to pay such support except by invading a marital asset. See Karimi v. Karimi, 867 So. 2d 471 (Fla. 5th DCA 2004). In the final judgment, the trial court must first determine whether the former husband had any other assets, and then specify the evidence it relies upon in connection with its determination of that issue.
*799 Further, the trial court must address the equivalent temporary support payments which the former husband admits he routinely made to himself from the Schwab marital account. Under no circumstances could these payments be deemed proper unless the former husband established with substantial competent evidence, and the trial court found, that he had no other means to support himself. Even then, only withdrawals which were minimally necessary to meet his reasonable living expenses would have been proper. Karimi. Any sums beyond that amount must be identified and allocated to the former husband's share of the equitable distribution. Remand for the trial court to make requisite findings is necessary.
The final judgment additionally lacks requisite findings of fact as to the former husband's monthly income and as to value of the former husband's substantial non-marital assets. Both findings are essential to consideration of the support issues involved in this litigation. See Saporito v. Saporito, 831 So. 2d 697 (Fla. 5th DCA 2002); Sumlar v. Sumlar, 827 So. 2d 1079 (Fla. 1st DCA 2002); Ondrejack v. Ondre-jack, 839 So. 2d 867 (Fla. 4th DCA 2003). See also Pinder v. Pinder, 911 So. 2d 870 (Fla. 2d DCA 2005). Absent these required findings, it is premature for this Court to pass upon the propriety of the awards of child support, rehabilitative alimony and denial to the former wife of additional attorney's fees.
We have considered the remaining issues and conclude they do not merit discussion.
The final judgment of dissolution is reversed except for that portion which dissolves the marriage and adjudicates the issue of child custody. The order denying additional attorney's fees is also reversed. The cause is remanded for entry of an amended final judgment which contains the requisite findings of fact and for entry of an amended order on attorney's fees.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
MONACO and TORPY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620216/ | 955 So. 2d 246 (2007)
Robert Butch TROST, Sr., et al.
v.
Donald O'CONNOR, et al.
No. 2006-1281.
Court of Appeal of Louisiana, Third Circuit.
April 4, 2007.
Rehearing Denied May 23, 2007.
*247 James Buckner Doyle, Lake Charles, LA, for Defendants/Appellants-Donald O'Connor, Complete Insulation, Drywall, and Painting, LLC, and Complete Drywall and Paint, LLC.
Oliver Jackson Schrumpf, Law Offices of Oliver "Jackson" Schrumpf and Charles Schrumpf (APLC), Sulphur, LA, for Secondary *248 Plaintiffs/Appellants-Robert Butch Trost, Sr. and Lake Area Supply, Inc., d/b/a Lake Area Insulation, Drywall and Paint.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.
THIBODEAUX, Chief Judge.
Defendants, Donald O'Connor, and the corporations he formed, Complete Insulation, Drywall, and Painting, LLC, and Complete Drywall and Paint, LLC (Mr. O'Connor), appeal the trial court's judgment awarding damages to the plaintiffs, Robert Butch Trost and his business entity, Lake Area Supply, d/b/a Lake Area Insulation, Drywall, and Painting (Mr. Trost), as a result of Mr. O'Connor's violation of a valid non-compete agreement. The trial court also determined that Mr. O'Connor had intentionally violated a November 2003 preliminary injunction, and reinstated a jail sentence imposed upon Mr. O'Connor that had been suspended. For the following reasons, we affirm the trial court's judgment and remand for implementation of the suspended jail sentence as amended by the trial court.
I.
ISSUE
The following issues are properly raised for this court's consideration:
1. Should this Court decline to apply the "law of the case" doctrine and reconsider its own ruling in this same case in which it was adjudged that the non-compete agreement between the parties was valid, because that decision was either palpably erroneous or its application would create manifest injustice?
2. Did the trial court err when it declared the sale of one of Mr. O'Connor's corporations to his brother a "sham"?
3. Did the trial court err by applying an incorrect method for the calculation of damages?
4. Did the trial court err when it reinstated the previously suspended jail sentence because it found Mr. O'Connor had violated the terms of his probation by continuing to intentionally violate the preliminary injunction, even though that jail sentence could be avoided by paying the damage award owed to Mr. Trost in $25,000.00 monthly installments?
Mr. Trost has filed an appeal asking that we reinstate the previously suspended jail sentence that was reimposed by the trial court because of Mr. O'Connor's intentional violation of the November 2003 preliminary injunction issued in this case. The reimposition of the suspended sentence was set aside by this court in the writ decision responding to Mr. O'Connor's writ application. Trost v. O'Connor, CW 06-964. Mr. Trost has also asked this Court to award him an additional sum of money as attorney fees for defending this appeal.
II.
FACTS
Mr. Trost is in the business of contracting with homeowners and builders to supply insulation, drywall installation, and painting services. While other artisans in the drywall business in southwest Louisiana provided some part of the services covered by Mr. Trost's business, his was the only corporation to provide all of these services by one contractor.
In 1998, he hired Mr. O'Connor as an independent contractor. In July of 2001, as part of ongoing employment negotiations between the parties, Mr. O'Connor signed a document entitled Independent *249 Contractor Agreement and Covenant Not to Compete. In particular, the document contained the following language:
I further agree that I will refrain from carrying on or engaging in the business of drywall installation, estimating, insulation, painting or related activities or from soliciting customers of LAKE AREA INSULATION, DRYWALL, & PAINTING within a 75 mile radius of Lake Charles, Louisiana, and to include Calcasieu Parish, Allen Parish, Beauregard Parish, and Cameron Parish, Louisiana, within two years from termination date of this contract with LAKE AREA INSULATION, DRYWALL & PAINTING.
I further agree and understand that if I violate any portion of this agreement, that I will pay to LAKE AREA INSULATION, DRYWALL, & PAINTING all damages sustained by them and any lost profit for which they have been deprived by my failure to comply with this agreement.
Additionally, I agree that a Court may enjoin me from soliciting, engaging in a business similar to that of LAKE AREA INSULATION, DRYWALL, & PAINTING, or providing the names or amounts of bids of any clients of LAKE AREA INSULATION, DRYWALL, & PAINTING, in accordance with this agreement.
On July 7, 2003, Mr. O'Connor called Mr. Trost and offered to purchase his business for $75,000.00. Mr. Trost's business was earning well over $1,000,000 per year in gross income. When Mr. Trost refused the offer, Mr. O'Connor stated that he would no longer be working for Mr. Trost. When Mr. Trost arrived at his office later that morning, he found that many of his client files were missing.
In an effort to stop Mr. O'Connor from taking his clients and his business, Mr. Trost filed suit in district court to enjoin Mr. O'Connor from competing in violation of the non-compete agreement he had signed in 2001. A temporary restraining order issued, based on the stipulation of both parties. That temporary restraining order became a preliminary injunction by order of the court in August of 2003. Our court affirmed the issuance of that injunction:
enjoining and restraining Mr. O'Connor "from carrying on or engaging in his own competing business and/or from soliciting customers" of Robert Trost, d/b/a Lake Area Insulation, Drywall and Painting, for the two-year period subsequent to July 7, 2003 and within a seventy-five-mile radius of Lake Charles. The record indicates that the preliminary injunction was entered into pursuant to stipulation of the parties.
Trost v. O'Connor, 04-1172, pp. 1-2 (La. App. 3 Cir. 2/2/05), 893 So. 2d 974, 975-76 (footnote omitted), writ denied, 05-512 (La.4/22/05), 899 So. 2d 575.
In the meantime, Mr. O'Connor was actively seeking employment as a drywall contractor and painter. He formed a limited liability corporation (LLC) called Complete Drywall, Insulation, and Painting, and asked a friend of his wife to sign the Articles of Organization as the sole member/manager. When that did not seem to work, Mr. O'Connor formed another LLC entitled Complete Drywall and Paint. He signed the Articles of Organization for this LLC, and continued to actively seek business in the Lake Charles area from clients of his former employer.
Mr. O'Connor was found to be in contempt of court in November of 2003 for violating the preliminary injunction. The trial judge sentenced Mr. O'Connor to one year in the parish jail. He then suspended all but 25 days of that sentence. Mr. O'Connor actually served about 11 or 12 *250 days, and was then released. He was placed on probation for a year and a half.
When he was released from jail, Mr. O'Connor transferred the ownership of Complete Drywall and Painting to his brother, Robert, for $100.00 and "other valuable consideration."
In February of 2004, a hearing was held on Mr. Trost's petition to have the preliminary injunction made permanent. The court granted a permanent injunction enjoining Mr. O'Connor from competing with Mr. Trost's business in violation of the non-compete agreement until July 7 of 2005two years from the date his employment with Mr. Trost ended.
Mr. O'Connor filed an appeal of that judgment with this court. The judgment of the trial court was affirmed. See Trost v. O'Connor, 893 So. 2d 974. His writ application was denied.
A hearing was held on June 1, 2006, on the issue of damages, which remained unresolved because the February 2004 hearing was too lengthy to cover all issues. Mr. Trost had also filed another rule for contempt against Mr. O'Connor, alleging that he had violated the permanent injunction and requesting that the previously suspended jail sentence be reinstated in that Mr. O'Connor had once again violated the preliminary injunction, even after having spent time in jail for his previous violation.
The trial judge heard testimony from witnesses for both parties, including Dr. Stephen Caples, a professor of economics who both parties stipulated would be accepted as an expert witness on the issue of economics. Judgment was rendered in favor of Mr. Trost, finding that Mr. O'Connor owed him $470,000.00 in damages. The previously suspended jail sentence was reinstated because of Mr. O'Connor's intentional violation of the terms of the preliminary injunction.
However, the jail sentence had an `out' clause. Mr. O'Connor could avoid serving time in jail if he paid in full the entire damage award to Mr. Trost. The court set up a payment plan. Mr. O'Connor was to begin paying the damage award in $25,000.00 monthly installments, the first due by 4:00 p.m. the next day, Friday, June 2, 2006. Each ensuing monthly payment would have to be received by Mr. Trost or his attorney by 4:00 p.m. on the second day of the month. If Mr. O'Connor missed any of those monthly payments, he would have to serve the balance of what remained of the eleven months of his jail sentence.
Mr. O'Connor filed a supervisory writ with this court. He argued that the trial court order to either pay $25,000.00 within 24 hours of the June 1, 2006 hearing or face eleven months in jail did not allow him the opportunity to suspensively appeal that judgment without being subject to its penalties. We granted the writ in part, and reversed, vacated, and set aside that portion of the judgment which reimposed the suspended jail sentence.
Mr. O'Connor then filed this appeal, raising the above-outlined issues as constitutional, manifest or palpable error. Mr. Trost also filed an appeal, requesting that the previously suspended jail sentence be reimposed and for additional attorney fees for defending against the appeal filed by Mr. O'Connor.
III.
LAW AND DISCUSSION
Should this Court Apply the "Law of the Case" Doctrine or Reexamine the Validity of the Non-Compete Agreement?
When an appellate court is asked to review one of its own previous judgments *251 in the same case, the "law of the case" doctrine is usually applied.
This court explained the doctrine of "law of the case" in Griggs v. Riverland Medical Center, 98-256 (La.App. 3 Cir. 10/14/98), 722 So. 2d 15, 19, writ denied, 99-0385 (La.5/28/99), 735 So. 2d 622:
The "law of the case" doctrine applies to prior rulings of the appellate court and/or supreme court in the same case. It applies to parties who were involved in the litigation at the time of the prior ruling and had their day in court. The doctrine provides that "an appellate court ordinarily will not reconsider its own rulings of law in the same case." Sharkey v. Sterling Drug, Inc., 600 So. 2d 701, 705 (La. App. 1 Cir.), writs denied, 605 So. 2d 1099, 1100 (La.1992). The purposes of the doctrine are to avoid litigating the same issue again, promote consistency of result within the case, promote essential fairness to the parties, and judicial efficiency. Cree Oil Co. v. Home Ins. Co., 94-1219 (La.App. 3 Cir. 3/8/95); 653 So. 2d 620, writ denied, 95-1554 (La.9/29/95); 660 So. 2d 875. The "law of the case" is discretionary, being inapplicable to cases in which the prior decision was palpably erroneous or its application would result in manifest injustice. Willett v. Premier Bank, 97-187 (La.App. 3 Cir. 6/4/97); 696 So. 2d 196.
Gentry v. Biddle, 05-61, p. 7 (La.App. 3 Cir. 11/2/05), 916 So. 2d 347, 352.
Mr. O'Connor urges us to explore the validity of the non-compete agreement for a second time. Under the law of the case doctrine, we would only do so if the prior decision was palpably wrong or resulted in manifest injustice. Id. The validity of the non-compete agreement was the subject of the appeal filed by Mr. O'Connor in 2004. It was determined by this court in Trost v. O'Connor, 893 So. 2d 974, that the non-compete agreement was valid. It was also determined that it was clear that Mr. O'Connor understood that he worked for Mr. Trost, and he did so on behalf of Mr. Trost and the different corporate names under which he operated. Id.
Mr. O'Connor filed a writ application with the Louisiana Supreme Court, asking that court to overturn our decision. His writ application was denied, as was his writ rehearing request. Trost v. O'Connor, 05-512 (La.4/22/05), 899 So. 2d 575, writ not considered, 05-512 (La.6/24/05), 904 So. 2d 745.
Mr. O'Connor has stipulated in the record on numerous occasions that he did indeed compete with Mr. Trost after terminating his services there as an independent contractor in violation of the non-compete agreement that he signed. There is a plethora of evidence in the record which shows that Mr. O'Connor knew the nature and meaning of the non-compete agreement. The document was witnessed by two other individuals. The document itself was examined by the trial court and this court and no errors of law were found. The non-compete agreement followed the requirements specified under La.R.S. 23:921(C).
We find no manifest injustice, nor any errors, palpable or obscure, in our previous decision. We choose not to reconsider the issue of the validity of the non-compete agreement.
Did the Trial Court Err When it Declared the Sale of Complete Drywall and Paint to Mr. O'Connor's Brother a "Sham"?
When the trial judge determined that the sale of Complete Drywall and Paint to Robert O'Connor for $100.00 and "other valuable consideration" was a sham, *252 he made a factual determination based on the testimony and evidence presented at trial. The factual determinations of the trial court will not be overturned absent manifest error. Stobart v. State through Dep't of Transp. & Dev., 617 So. 2d 880 (La.1993).
Louisiana Revised Statutes 23:921 states that when an independent contractor signs a non-compete agreement, they are committing "to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer. . . ." La.R.S. 23:921(C). The non-compete agreement Mr. O'Connor signed stated that he would "refrain from carrying on or engaging in the business of drywall installation, estimating, insulation, painting or related activities or from soliciting customers of LAKE AREA INSULATION, DRYWALL, & PAINTING."
It appears that Mr. O'Connor was attempting to circumvent his contractual, legal, and court-ordered obligation not to compete when he sold his LLC to his brother after getting out of jail. He was imprisoned because he was directly competing with Mr. Trost, in violation of both the non-compete agreement and the preliminary injunction ordered by the trial court. At the time of the sale, the record reflects that the LLC owned a 26 foot truck, a forklift, had drywall supplies in a warehouse and at least $26,000.00 in the bank. The assets of the LLC also included all of the business being conducted at that time and the bills owed from those jobs, as well as the customer base.
Mr. O'Connor had earlier made an attempt to circumvent the terms of the non-compete agreement when he set up Complete Insulation, Drywall, and Painting. He asked his wife's friend if she would be willing to sign the Articles of Organization, making it seem as if Mr. O'Connor were not involved.
In the case of both LLCs, Mr. O'Connor remained the main contact person and the main contractor for all of the work. His name and number were on the side of the corporate truck; his name and number were on the corporate business cards; and, he was the only person who knew all of the administrative in's and out's of the corporation's business and finances. Neither his brother nor his wife's friend could answer any specific questions about either LLC's bank accounts, staffing, or customer base.
We find no error in the trial court's factual determination that the sale of Complete Drywall and Paint to Robert O'Connor was a sham.
Did the Trial Court Commit Manifest Error in its Calculation of Damages?
Mr. O'Connor alleges that the trial court used an incorrect method to calculate the amount of damages owed to Mr. Trost. An appellate court must give much discretion to the damage award assigned by the trial court. "The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the `much discretion' of the trier of fact." Youn v. Maritime Overseas Corp., 623 So. 2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S. Ct. 1059, 127 L. Ed. 2d 379 (1994).
Mr. O'Connor argues that the trial court abused its much discretion by determining that the entire amount awarded against Mr. O'Connor during the eleven month period for which Mr. Trost has asked for damages was at the expense of Mr. Trost.
Mr. Trost called Dr. Stephen C. Caples as an expert. Dr. Caples was stipulated to *253 by both parties as an expert in the field of economics, and both parties also stipulated to his certification as an expert witness in that field. Dr. Caples looked at the Hibernia bank account for Complete Drywall and Paint. He used the monthly gross receipts to calculate the basic profit earned by the LLC during the eleven month period. Complete Drywall and Paint deposited an average of $253,633.00, or more than $3,000,000 for the year. He then interviewed Mr. Trost to learn what the typical profit percentage is for the drywall business. Using a fifteen percent profit, he multiplied the gross monthly receipts by that amount to yield a loss of profit to Mr. Trost of between $586,697.00 and $782,263.00.
The trial judge awarded $470,000.00 in damages to Mr. Trost for lost profits due to Mr. O'Connor's intentional violation of the non-compete agreement. The only testimony heard on this issue was from Dr. Caples. Mr. O'Connor neither offered any witness to rebut this expert, nor did he provide any contrary evidence. Under the Louisiana Code of Evidence, a court is allowed to qualify a witness to assist it in the analysis of scientific or technical issues. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." La.Code Evid. art. 702.
The trial court is free to assign whatever weight it deems appropriate to the testimony of expert witnesses subject to the manifest error standard of review on appeal. Massie v. Deloach, 04-1425 (La.App. 3 Cir. 3/2/05), 896 So. 2d 1246, writ denied, 05-786 (La.5/6/05), 901 So. 2d 1107. There was no abuse of the much discretion afforded the trial court by accepting Dr. Caples as an expert, or in accepting his opinion and using it to help form the damage award. The damage award of $470,000.00 to Mr. Trost is affirmed.
Did the Trial Court Err by Reinstating the Previously Suspended Jail Sentence for Contempt of Court for Violating the Preliminary Injunction Issued in November of 2003?
While Mr. O'Connor argues that he is appealing the reinstatement of his jail sentence by the trial court in June of 2006, he is really asking this court to review the judgment of the trial court issued on November 25, 2003.[1] In that judgment, he was sentenced to one year in jail for having been found in contempt of court because of his intentional and egregious behavior, flagrantly violating the court's preliminary injunction issued in August of 2003 which ordered him not to violate the valid non-compete agreement.
Louisiana Revised Statutes 13:4611(1)(b) gives a court the authority to assess penalties against those found guilty of violating a preliminary injunction:
(b) For disobeying or resisting a lawful restraining order, or preliminary or permanent injunction, by a fine of not more than one thousand dollars, or by imprisonment for not more than twelve months, or both, except in juvenile courts and city courts, in which punishment may be a fine of not more than one *254 thousand dollars or imprisonment for not more than six months, or both.[2]
While its clear that the trial court was well within its authority under Louisiana law to impose a one-year suspended jail sentence, Mr. O'Connor challenges the trial court's judgment based on constitutional grounds.[3] Unfortunately for him, these arguments come too late.
The Louisiana Code of Civil Procedure gives a party who feels that the judgment of the trial court contains errors between thirty and sixty days to appeal that judgment, depending on whether they seek a suspensive or devolutive appeal respectively.[4]
Mr. O'Connor is asking this court to accept an appeal from a final judgment *255 that was filed almost two and a half years after it was rendered. This court does not have that authority.
Mr. Trost's Issues on Appeal
Mr. Trost asks that we reinstate that part of the trial court's judgment that reimposed Mr. O'Connor's suspended jail sentence. We remand this issue to the trial court, so that the jail sentence can be implemented in accordance with the guidelines outlined in footnote 2 of this opinion.
We also award Mr. Trost an additional $4,000.00 in attorney fees for defending this appeal.
IV.
CONCLUSION
We decline Mr. O'Connor's entreaty to suspend the "law of the case" doctrine and reexamine our previous judgment finding that the non-compete agreement that he signed was valid. We also find that the trial court committed no error when it determined that the sale of Complete Drywall and Paint to Mr. O'Connor's brother Robert was a sham. Additionally, there was no manifest error in the method used by the trial court to determine the amount of damages owed to Mr. Trost by Mr. O'Connor for his intentional violation of the valid non-compete agreement. Mr. O'Connor owes Mr. Trost $470,000.00 in damages.
We remand this case to the trial court for disposition of the jail sentence and damage award associated with the contempt judgment and for violation of the non-compete agreement. We award Mr. Trost an additional $4,000.00 for defending this appeal. All costs of this appeal are assessed to Defendant/Appellant, Donald O'Connor.
AFFIRMED AND REMANDED FOR THE TRIAL COURT'S DISPOSITION OF THE CONTEMPT JUDGMENT.
NOTES
[1] In June of 2006, the trial court reinstated the suspended jail sentence because it found that Mr. O'Connor had continued to violate the preliminary injunction. Judge Savoie effectuated and modified the November 25, 2003 contempt judgment by adding a purge clause: Mr. O'Connor could avoid jail by paying $25,000.00 per month to Mr. Trost as compensatory damages. He did not find Mr. O'Connor in contempt, nor did he sentence Mr. O'Connor to a new jail sentence.
[2] The legislature amended this statute subsequent to the trial court's November 2003 judgment. Now the maximum jail sentence allowed for violation of a lawful restraining order, preliminary, or permanent injunction is six months. 2006 La. Acts No. 653, § 1.
[3] Mr. O'Connor argues that this contempt proceeding was criminal in nature, and therefore required the due process protections afforded by both the Louisiana and United States Constitutions, including the right to trial by jury and proof beyond a reasonable doubt instead of by a preponderance of the evidence.
The United States Supreme Court helped clarify in very clear terms how state courts can determine whether a contempt proceeding is criminal or civil in nature. In Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 108 S. Ct. 1423[, 99 L. Ed. 2d 721] (1988), the distinction between civil and criminal contempt was explained:
"If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Gompers v. Bucks[Buck's] Stove & Range Co., 221 U.S. 418, 441, 31 S. Ct. 492, 55 L. Ed. 797 (1911). The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if "the defendant stands committed unless and until he performs the affirmative act required by the court's order," and is punitive if "the sentence is limited to imprisonment for a definite period." Id. at 442, 31 S.Ct. at 498. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order.
Id. at 631-32, 108 S.Ct. at 1429.
In Feiock, we are instructed that it is not merely the categorization of the proceeding as criminal that makes it such. A court must look at the "substance of the proceeding and the character of the relief that the proceeding will afford." Id. at 631, [108 S.Ct. at] 1429. Therefore, it is constitutionally valid to sentence a defendant to jail for having violated a valid court order if the following guidelines are followed in terms of determining the nature of proceedings and ensuing due process protections that must be adhered to:
An unconditional penalty is criminal in nature because it is "solely and exclusively punitive in character." Penfield Co. v. SEC, 330 U.S. 585, 593, 67 S. Ct. 918, 922, 91 L. Ed. 1117 (1947). A conditional penalty, by contrast, is civil because it is specifically designed to compel the doing of some act. "One who is fined, unless by a day certain he [does the act ordered], has it in his power to avoid any penalty. And those who are imprisoned until they obey the order, `carry the keys of their prison in their own pockets.'" Id. at 590, 67 S.Ct., at 921, quoting In re Nevitt, 117 F. 448, 461 (C.A.8 1902).
Id. at 633, 108 S.Ct. at 1430.
We note that our brethren in the second circuit interpreted this language from Feiock to mean that a suspended sentence will still be determinate in nature and not remedial unless there exists some kind of conditions or purge clause attached that would, in essence, dissolve that suspended sentence. Long v. Hutchins, 40,548 (La.App. 2 Cir. 12/14/05), 926 So. 2d 556.
[4] If seeking a suspensive appeal, La.Code Civ.P. art. 2123 provides in pertinent parts:
Art. 2123. Delay for taking suspensive appeal
A. Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.
. . . .
If seeking a devolutive appeal, La.Code Civ.P. art.2087 provides in pertinent parts:
Art.2087. Delay for taking devolutive appeal
A. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.
. . . . | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3040435/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1638
___________
Shirley T. Lemay, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Jo Anne B. Barnhart, Commissioner, *
Social Security Administration, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: May 12, 2006
Filed: May 18, 2006
___________
Before MURPHY, BEAM, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Shirley Lemay appeals from the district court’s1 order affirming the denial of
disability insurance benefits. In her September 1997 application, Lemay alleged
disability due to a work-related back injury sustained on September 26, 1996. Her
insured status expired on September 30, 1997.
1
The Honorable J. Thomas Ray, United States Magistrate Judge for the Eastern
District of Arkansas, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).
After a December 2002 hearing at which Lemay’s medical records were
admitted and she testified, the administrative law judge (ALJ) determined that, during
the relevant time period, Lemay did not perform substantial gainful work; her chronic
back pain was severe, but not of listing-level severity; her allegations of disabling pain
were not fully credible; and, although she could not perform her past relevant work,
she had the residual functional capacity to perform light-work jobs existing in
significant numbers in the national economy. The ALJ thus concluded that Lemay
was not disabled during the relevant time period.
We will affirm the ALJ’s decision if it is supported by substantial evidence on
the record as a whole. See Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994). Upon
careful review of the record, we conclude that, contrary to Lemay’s numerous
arguments, the ALJ had no duty to develop the record further; the ALJ’s findings
sufficiently supported the decision to deny benefits; and substantial evidence on the
record as a whole supported the ALJ’s adverse credibility determination and final
conclusion that Lemay was not disabled during the relevant time period.
Accordingly, the judgment is affirmed. See 8th Cir. R. 47B.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2697767/ | [Cite as PHH Mtge. Corp. v. Northrup, 2011-Ohio-6814.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
PHH MORTGAGE CORPORATION, :
Plaintiff-Appellee, : Case No. 11CA6
vs. :
GARY NORTHUP, et al., : DECISION AND JUDGMENT ENTRY
Defendant-Appellants. :
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANTS: Brian K. Duncan and Bryan D. Thomas, 155 East Broad
Street, Suite 2200, Columbus, Ohio 43215
COUNSEL FOR APPELLEE: David M. Gauntner, 1500 West 3rd Street, Suite 400,
Cleveland, Ohio 44113
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 12-27-11
ABELE, J.
{¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment that denied
a motion for relief from judgment filed by Gary Northup, defendant below and appellant herein.
{¶ 2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING
TO VACATE ITS JULY 22, 2010 AND/OR DECEMBER 27, 2010
JUDGMENT ENTRIES AS DEFENDANT/APPELLANT MADE
THE REQUISITE SHOWING UNDER CIV.R. 60(B) IN HIS
MOTION TO VACATE.”
PICKAWAY, 11CA6 2
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
DEFENDANT/APPELLANT’S REQUEST FOR AN ORAL
HEARING ON HIS MOTION TO VACATE, DESPITE THE FACT
THAT THERE WERE ALLEGATIONS OF OPERATIVE FACTS
WHICH WOULD WARRANT RELIEF UNDER CIVIL RULE
60(B).”
{¶ 3} On October 3, 2008, PHH Mortgage Corporation, plaintiff below and appellee herein,
filed a foreclosure complaint against appellant, Jane Doe (appellant’s unknown spouse), and the
Pickaway County Treasurer. Appellee subsequently added two other defendants, who are not part
of this appeal.
{¶ 4} On February 22, 2010, appellee filed a summary judgment motion and a default
judgment motion. Appellee asserted that no genuine issues of material fact remain as to whether
appellant has defaulted on his mortgage obligation and that it is entitled to judgment as a matter of
law. Appellee further contended that Jane Doe and another defendant were in default for failure to
answer and that it is entitled to a default judgment against those two parties.
{¶ 5} On February 22, 2010, the trial court granted appellee summary judgment and entered
a default judgment against the two defendants who had failed to answer.
{¶ 6} On March 31, 2010, the trial court vacated its February 22, 2010 summary
judgment. The court observed that it had failed to allow appellant time to respond to appellee’s
summary judgment motion. The court thus vacated its summary judgment and allowed appellant
fourteen days from March 31, 2010 to respond. Appellant, however, never filed any
memorandum in opposition to appellee’s summary judgment motion.
{¶ 7} On July 22, 2010, the trial court entered summary judgment in appellee’s favor.
PICKAWAY, 11CA6 3
On December 27, 2010, the court entered an amended summary judgment. On March 21, 2011,
appellee filed a notice that a sheriff’s sale would occur on March 29, 2011.
{¶ 8} On March 28, 2011, appellant filed a “combined motion to vacate this court’s July
22, 2010 and/or December 27, 2010 judgment entries and/or any and all entries granting summary
judgment or default judgment to plaintiff against defendant Gary Northup; motion for stay of
execution of sheriff’s sale scheduled for March 29, 2011; and motion for leave to respond to
plaintiff’s motion for summary judgment and/or for leave to file amended answer.” Appellant
alleged that his failure to respond to the summary judgment motion resulted from inadvertence or
excusable neglect under Civ.R. 60(B)(1). Appellant explained that he thought his former counsel
had been negotiating with appellee to modify the loan. He thought “he had been engaging in a
loan modification program and that the instant matter had been stayed, which he never received
notice of said reinstatement.” Appellant further alleged that his former counsel did not raise
proper claims, defenses and counterclaims in the original answer and that his former counsel failed
to respond to appellee’s summary judgment motion. Appellant additionally argued that the
interests of justice required the court to grant him relief under Civ.R. 60(B)(5).
{¶ 9} On March 29, 2011, the trial court overruled appellant’s motion. The court
observed that appellant “had ample time to dispute or appeal” any of its rulings. The court found
that appellant’s primary purpose in filing the motion, one day before the sheriff’s sale, was to delay
the sale. This appeal followed.
I
{¶ 10} In his first assignment of error, appellant asserts that the trial court erred by
overruling his Civ.R. 60(B) motion for relief from judgment. We disagree.
PICKAWAY, 11CA6 4
{¶ 11} Our standard of review regarding a trial court’s Civ.R. 60(B) decision is
well-settled:
“Absent an abuse of discretion, we will not disturb a trial court’s decision to
grant or deny a Civ.R. 60(B) motion. Griffey v. Rajan (1987), 33 Ohio St.3d 75,
77, 514 N.E.2d 1122. The term ‘abuse of discretion’ implies that the court’s
attitude is unreasonable, unconscionable, or arbitrary. State v. Adams (1980), 62
Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144. When applying the
abuse-of-discretion standard, a reviewing court is not free to merely substitute its
judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135,
138, 566 N.E.2d 1181.”
Dye v. Smith, 189 Ohio App.3d 116, 2010-Ohio-3539, 937 N.E.2d 628, ¶12.
{¶ 12} Civ.R. 60(B) provides:
On motion and upon such terms as are just, the court may relieve a party or
his 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 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 (5) any
other reason justifying relief from the judgment.
{¶ 13} To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate
that:
“(1) the party has a meritorious defense or claim to present if relief is granted; (2)
the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)
through (5); and (3) the motion is made within a reasonable time, and, where the
grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the
judgment, order or proceeding was entered or taken.”
GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the
syllabus. A failure to establish any one of the foregoing circumstances is ordinarily fatal to the
Civ.R. 60(B) motion. See Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20, 520
PICKAWAY, 11CA6 5
N.E.2d 564 (stating that the trial court should overrule a Civ.R. 60(B) motion if the movant fails to
meet any one of the foregoing three requirements); GTE, 47 Ohio St.2d at 151 (stating that the
three requirements are “conjunctive”).
{¶ 14} In the case sub judice, appellant claims that either Civ.R. 60(B)(1) or (5) entitles
him to relief from the trial court’s summary judgment. Civ.R. 60(B)(1) allows a court to relieve a
party from a final judgment due to the party’s “* * * inadvertence * * * or excusable neglect.”
{¶ 15} Inadvertence is “[a]n accidental oversight; a result of carelessness.” Guider v. Am.
Heritage Homes Corp., Logan App. No. 8–07–16, 2008-Ohio-2402, ¶7, quoting Black’s Law
Dictionary (7th Ed.Rev.1999) 762.
{¶ 16} When a court evaluates whether a movant has demonstrated excusable neglect, the
court “must of necessity take into consideration all the surrounding facts and circumstances.”
Colley v. Bazell (1980), 64 Ohio St.2d 243, 249, 416 N.E.2d 605. In Vanest v. Pillsbury Co.
(1997), 124 Ohio App.3d 525, 706 N.E.2d 825, we discussed the term “excusable neglect”:
“Although ‘[t]he term “excusable neglect” is an elusive concept’ that courts
often find difficult to define and to apply, Kay v. Marc Glassman, Inc. (1996), 76
Ohio St.3d 18, 20, 665 N.E.2d 1102, the cases discussing excusable neglect reveal
some general principles. First, many cases characterize the type of conduct that
does not constitute excusable neglect. Inaction of a party that can be labeled as a
‘complete disregard for the judicial system’ constitutes inexcusable neglect. GTE
Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 153, 1
O.O.3d 86, 90, 351 N.E.2d 113. Additionally, attorney conduct falling
‘substantially below what is reasonable under the circumstances’ constitutes
inexcusable neglect. Id. at 152, 351 N.E.2d 113. Second, a majority of the cases
finding excusable neglect also have found unusual or special circumstances that
justified the neglect of the party or attorney. Other cases, however, despite the
presence of special or unusual circumstances, declined to find excusable neglect.
The cases generally suggest that if the party or his attorney could have controlled or
guarded against the happening of the special or unusual circumstance, the neglect is
not excusable. Third, excusable neglect may exist when a party has neither
knowledge nor actual notice of the lawsuit. Finally, the demands of being a busy
PICKAWAY, 11CA6 6
lawyer or of being preoccupied with other litigation generally do not constitute
excusable neglect.”
Id. at 536-537 (footnotes omitted). We note that in general, a party’s failure to “to plead or
respond after admittedly receiving a copy of a court document is not ‘excusable neglect.’” Natl.
City Home Loans Serv., Inc. v. Gillette, Scioto App. No. 05CA3027, 2006-Ohio-2881, ¶18, citing
Katko v. Modic (1993), 85 Ohio App.3d 834, 838, 621 N.E.2d 809, and Andrew Bihl Sons, Inc. v.
Trembly (1990), 67 Ohio App.3d 664, 667, 588 N.E.2d 172.
{¶ 17} In Vanest, we further noted the distinction between “excusable neglect” and mere
“neglect,” as Black’s Law Dictionary defines the terms. “‘[E]xcusable neglect’ [means] * * * ‘a
failure to take the proper steps at the proper time, not in consequence of the party’s own
carelessness, inattention, or willful disregard of the process of the court, but in consequence of
some unexpected or unavoidable hindrance or accident, or reliance on the care and vigilance of his
counsel or on promises made by the adverse party.’” Id. at 537, fn.8, quoting Black’s Law
Dictionary (6 Ed.1990) 566. In contrast, mere “neglect” means “‘to omit, fail, or forbear to do a
thing that can be done, or that is required to be done, but it may also import an absence of care or
attention in the doing or omission of a given act. And it may mean a designed refusal,
indifference, or unwillingness to perform one’s duty.’” Id., at 1032, fn. 13.
{¶ 18} Courts ordinarily impute the neglect of a party’s attorney to that party when
determining whether the facts demonstrate excusable neglect. GTE, paragraph four of the
syllabus; Newell v. White, Pickaway App. No. 05CA27, 2006-Ohio-637, ¶12; Williams v. Roe
(Feb. 2, 1996), Scioto App. No. 95CA2373. Thus, ordinarily, a party cannot establish excusable
neglect simply by casting blame upon the party’s attorney. But, see, Whitt v. Bennett (1992), 82
PICKAWAY, 11CA6 7
Ohio App.3d 792, 613 N.E.2d 667 (“[F]ault should not automatically be imputed when an attorney
has grossly neglected a diligent client’s case and misleads the client to believe that his interests are
being properly handled.”). It is only when that neglect rises to the level of excusable neglect that
Civ.R. 60(B)(1) relief may be had. See Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio
St.3d 64, 68, 479 N.E.2d 879.
{¶ 19} The Ohio Supreme Court has recognized the perceived injustice that results to the
client as a result of the imputed neglect rule, but has further explained that the client voluntarily
chose the attorney and, thus, must live with the consequences of that chosen representation. See
GTE, supra. The court explained:
“There is certainly no merit to the contention that dismissal of petitioner’s
claim because of his counsel’s unexcused conduct imposes an unjust penalty on the
client. Petitioner voluntarily chose this attorney as his representative in the action,
and he cannot now avoid the consequences of the acts or omissions of this freely
selected agent. Any other notion would be wholly inconsistent with our system of
representative litigation, in which each party is deemed bound by the acts of his
lawyer agent and is considered to have ‘notice of all facts, notice of which can be
charged upon the attorney.’ [Smith v. Ayer (1879), 101 U.S. 320, 25 L.Ed.2d 955.]
****
* * * Surely if a criminal defendant may be convicted because he did not
have the presence of mind to repudiate his attorney’s conduct in the course of a trial,
a civil (defendant) may be deprived of his (defense) if he failed to see to it that his
lawyer acted with dispatch in the prosecution of his lawsuit. And if an attorney’s
conduct falls substantially below what is reasonable under the circumstances, the
client’s remedy is against the attorney in a suit for malpractice. But keeping this
suit alive merely because * * * (defendant) should not be penalized for the
omissions of his own attorney would be visiting the sins of * * * (defendant’s)
lawyer upon the * * * (plaintiff).”
GTE, 47 Ohio St.2d at 152, quoting Link v. Wabash R. R. Co. (1962), 370 U.S. 626, 633-34, 82
S.Ct. 1386, 8 L.Ed.2d 734 and fn.10 (citations omitted).
{¶ 20} In the case sub judice, we do not believe that the trial court abused its discretion by
PICKAWAY, 11CA6 8
determining that appellant failed to establish entitlement to relief under Civ.R. 60(B)(1). The
facts and circumstances present in this case do not demonstrate excusable neglect or inadvertence.
Instead, appellant’s attorney’s failure to respond to appellee’s summary judgment, which is
imputed to appellant, demonstrates mere neglect. The trial court afforded appellant ample time to
respond to appellee’s summary judgment motion. After the court vacated its initial order, nearly
four months elapsed before the court entered another summary judgment. During that time, the
record contains no evidence that appellant made any filings or responded to appellee’s summary
judgment motion. Approximately five months elapsed before the court issued an amended final
judgment entry. Again, during that time, appellant submitted no filings. Another three months
elapsed before appellee filed a notice of sheriff’s sale. Only at that point did appellant submit a
filing–his Civ.R. 60(B) motion, which he did not file until the day before the sale. In view of the
amount of time that elapsed between the court’s summary judgment rulings and the timing of
appellant’s Civ.R. 60(B) motion, the court was well within its discretion to determine that the
purpose of appellant’s Civ.R. 60(B) motion was for delay. Moreover, allowing appellant to
escape the final judgment due to the alleged neglect of his attorney would be visiting the sins of
appellant’s attorney upon the appellee.
{¶ 21} Additionally, we find the following statement relevant to the situation in the case at
bar:
“If we were to hold that a party who neglects to respond to a motion for
summary judgment is entitled to relief when he files a Civ.R. 60(B) motion,
supported by affidavits which should have been filed in opposition to the motion for
summary judgment, we would be disemboweling the whole summary judgment
procedure. No party would be required to file counter-affidavits under Civ.R. 56 if
he could later obtain relief under Civ.R. 60(B) from his omission. Indeed, were a
party interested in delaying the final outcome of a case, he would invariably resort
PICKAWAY, 11CA6 9
to such a tactic.”
Pittsburgh Press Co. v. Cabinetpak Kitchens of Columbus, Inc. (1984), 16 Ohio App.3d 167, 168;
see, also, Sand v. Marbex, Inc. (Dec. 1, 1987), Scioto App. No. 1658. In the present case,
appellant states that he has defenses to present in opposition to appellee’s summary judgment
motion. He, however, should have raised those defenses in a timely response to appellee’s
summary judgment motion–not in a Civ.R. 60(B) motion brought approximately eight months after
the court first entered summary judgment and on the day before the schedule sheriff’s sale. The
totality of appellant’s conduct demonstrates a tactic to delay the final outcome of the case, i.e., the
sheriff’s sale.
{¶ 22} Appellant nonetheless argues that he was unaware of the status of the case and of
his counsel’s failure to respond to appellee’s summary judgment motion. A party involved in
litigation cannot simply sit back and claim ignorance of the proceedings. Instead, a party to an
action must keep himself informed of the status of the case. See State Farm Mut. Auto. Ins. Co. v.
Peller (1989), 63 Ohio App.3d 357, 361, 578 N.E.2d 874 (stating that a party to an action has the
duty to stay apprised of the progress of the case); Metcalf v. Ohio State Univ. Hosp. (1981), 2 Ohio
App.3d 166, 441 N.E.2d 299; see, also, Whitman v. Whitman, Hancock App. No. 5-05-36,
2007-Ohio-4231, ¶24 (stating that “[t]he parties to an action have a duty to remain informed about
the progress of their case”); In re Adoption of J.H., Lorain App. No. 06CA008902,
2006-Ohio-5957, ¶8 (noting that it is “well established that the parties to the case have a duty to
keep apprised of the progress of the case on the docket”); MBA Realty v. Little G, Inc. (1996), 116
Ohio App.3d 334, 338, 688 N.E.2d 39 (stating that the parties to an action bear the burden of
following the progress of their case); P. Maynard v. C. Maynard (Feb. 11, 1982), Cuyahoga App.
PICKAWAY, 11CA6 10
No. 43642, (stating that appellant “was duty bound to keep abreast of the docket entries”). Thus,
although appellant claims that he was unaware of the status of his case or of his attorney’s failure
to respond to appellee’s summary judgment motion, he also had a duty to keep himself informed of
the status of the case. His ignorance of the status of the case does not demonstrate excusable
neglect.
{¶ 23} Finally, we recognize that “courts should strive to decide cases upon their merits
rather than upon procedural grounds.” Newman v. Farmacy Natural & Specialty Foods, 168 Ohio
App.3d 630, 2006-Ohio-4633, 861 N.E.2d 559, ¶22. This “principle[, however,] must be
balanced against the competing principle that litigation must be brought to an end.” Id., citing
Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 21, 520 N.E.2d 564. In the case sub
judice, the interest in finality is most manifest. Appellant had more than ample time to argue the
merits of the case. Appellee obtained a final judgment and sought to execute that judgment
through the sheriff’s sale. Only when faced with the reality of the sheriff’s sale did appellant take
action. Appellant, however, had prior opportunities to challenge the judgment. Having failed to
do so, he cannot now avail himself of the relief that Civ.R. 60(B) provides.
{¶ 24} Appellant further argues that Civ.R. 60(B)(5) entitles him to relief from the court’s
summary judgment. Civ.R. 60(B)(5) reflects “the inherent power of a court to relieve a person
from the unjust operation of a judgment.” State ex rel. Gyurcsik v. Angelotta (1977), 50 Ohio
St.2d 345, 346, 364 N.E.2d 284. “The grounds for invoking Civ.R. 60(B)(5) should be
substantial.” Caruso–Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 448 N.E.2d 1365, paragraph
two of the syllabus.
{¶ 25} In the case at bar, the trial court did not abuse its discretion by determining that
PICKAWAY, 11CA6 11
appellant was not entitled to relief under Civ.R. 60(B)(5). The operation of the judgment would
not be unjust to appellant. To the contrary, undoing the operation of the judgment would be unjust
to appellee. There is nothing inherently unjust about the trial court’s judgment. The court
afforded appellant ample procedural protections. Appellant’s failure to take advantage of those
protections does not render the court’s judgment unjust.
{¶ 26} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s first
assignment of error.
II
{¶ 27} In his second assignment of error, appellant contends that the trial court abused its
discretion by failing to hold a hearing regarding his Civ.R. 60(B) motion.
{¶ 28} A party who files a Civ.R. 60(B) motion for relief from judgment is not
automatically entitled to a hearing on the motion. Instead, the movant bears the burden to
demonstrate that he or she is entitled to a hearing on the motion. To warrant a hearing on a Civ.R.
60(B) motion, the movant must allege operative facts that would warrant relief under Civ.R. 60(B).
Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 19, 665 N.E.2d 1102. Although a movant
is not required to submit evidentiary material in support of the motion, a movant must do more
than make bare allegations of entitlement to relief. French v. Taylor (Jan. 2, 2002), Lawrence
App. No. 01 CA15; see, also, Your Financial Community of Ohio, Inc. v. Emerick (1997), 123
Ohio App.3d 601, 607, 704 N.E.2d 1265. In the case at bar, as we discussed under appellant’s
first assignment of error, appellant failed to allege operative facts that would entitle him to relief
under Civ.R. 60(B). Consequently, the trial court was not required to hold a hearing.
{¶ 29} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
PICKAWAY, 11CA6 12
second 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 Pickaway County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
Kline, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1332621/ | 194 S.E.2d 733 (1973)
213 Va. 704
SYDNOR & HUNDLEY, INC.
v.
WILSON TRUCKING CORPORATION.
Supreme Court of Virginia.
March 5, 1973.
*734 Miles Cary, Jr., Allan S. Buffenstein, Richmond (Hirschler & Fleischer, Richmond, on brief), for plaintiff in error.
Talmage N. Cooley, Roger B. Willetts, Waynesboro (Edmunds, Freed, Cooley & Willetts, Waynesboro, on brief), for defendant in error.
Before SNEAD, C. J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.
POFF, Justice.
We granted a writ of error to a final judgment order entered on December 20, 1971 by the trial court sitting without a jury finding for the defendant, Wilson Trucking Corporation, a common carrier, on a motion for judgment filed by the plaintiff, Sydnor & Hundley, Inc., a furniture merchant, seeking damages in the sum of $5,886.47 for the non-delivery of a tractor-trailer load of furniture purchased from Johnson-Carper Furniture Company of Roanoke.
On January 7, 1970 Johnson-Carper loaded Sydnor's order placed in early January 1970 aboard Wilson's trailer, f. o. b. Roanoke. The cargo arrived at Wilson's terminal in Richmond on January 8, 1970.
According to the testimony of Wilson's Richmond dispatcher Turner and two Wilson truck drivers, Kleis and Neeley, the trailer was "spotted", i. e., detached from the tractor and parked, at Sydnor's Richmond warehouse sometime before January 13; about 3:00 P.M. on January 13, at Turner's instruction, Kleis went to the warehouse to see if the trailer had been unloaded; Kleis called Turner and told him that unloading would not be completed until later that day; Turner later dispatched Neeley in a tractor to pick up the trailer; Neeley found the trailer empty, but because Sydnor's employees had quit work for the day, he left with the trailer without getting the delivery receipt signed; the next day, Kleis returned to Sydnor's warehouse, obtained a signature on a delivery receipt and delivered the receipt to Turner; the receipt became misplaced and was never found.
According to the testimony of Sydnor's employees, the trailer was never "spotted" *735 at the warehouse, the furniture was never delivered, and a delivery receipt was never signed.
Sydnor's Vice President testified that approximately 60 days after the order was placed he received a "late notice" from Johnson-Carper. Checking the files, he found an "open" (unpaid) Johnson-Carper invoice dated "01/07/70" and containing the words, "SHIP TO ARRIVE IN JAN NO DEL ON SAT OR AFTER 4 DAILY". After searching the warehouse, the receiving records and the sales records, he advised Johnson-Carper that the merchandise had not been received.
In October 1970, Johnson-Carper sent Sydnor a letter asking payment. Sydnor's Assistant Controller and Internal Auditor, Accountant, spent a man week and his bookkeeper a hundred man hours searching the physical inventory and all of the files and records at Sydnor's retail outlets and Sydnor's parent corporation, Haynes Furniture Company, in Norfolk. Finding nothing to show that Sydnor had ever received or sold any part of the furniture, he obtained from Johnson-Carper copies of the invoices and a memorandum of bill of lading and demanded of Wilson proof of delivery. Wilson was unable to produce the delivery receipt, and with Johnson-Carper threatening suit, Sydnor paid Johnson-Carper and on December 30, 1970 filed with Wilson a written "Standard Form for Presentation of Loss and Damage Claim".
The original bill of lading was never produced, but the memorandum of bill of lading, copy of which Johnson-Carper furnished Sydnor in October 1970, stated on its face that "This memorandum is an acknowledgment that a Bill of Lading has been issued . . .". It further provided:
"It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the terms and conditions of the Uniform Domestic Straight Bill of Lading set forth. . . in the applicable motor carrier classification or tariff. . . .
"Shipper hereby certifies that he is familiar with all the terms and conditions of the said bill of lading, including those on the back thereof, set forth in the classification or tariff which governs the transportation of this shipment, and the said terms and conditions are hereby agreed to by the shipper and accepted for himself and his assigns."
When Wilson filed with the State Corporation Commission its tariff schedules as required by Code § 56-316, it included as a part of its filing the National Motor Freight Classification A-10 listing "Classes and Rules Applying on Freight Traffic Covered by Tariffs". On pages 257 and 258 of that document was a form in blank entitled "Uniform Straight Bill of Lading". Under the heading "Contract Terms and Conditions" the form contained in section 2(b) language which reads in pertinent part as follows:
"As a condition precedent to recovery, claims must be filed in writing with the . . . carrier . . . in case of failure to make delivery . . . within nine months after a reasonable time for delivery has elapsed; . . . where claims are not filed . . . in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid."[1]
Without reaching consideration of the merits of the case, the trial court ruled that Sydnor was bound by this notice requirement and, having failed to give written *736 notice on nondelivery within nine months after the lapse of a reasonable time for delivery, was not entitled to recover against the carrier.
Attacking the ruling in its assignments of error, Sydnor argues that there was no contractual relationship between Sydnor and Wilson; that assuming there was a contractual relationship, the nine-month notice requirement was not part of the contract terms and Sydnor gave notice within a reasonable time; and that even if the nine-month notice requirement were a part of the contract terms, Sydnor's written notice was timely filed.
With reference to a contractual relationship, Sydnor alleged in its motion for judgment that "by agreement, to which both plaintiff and defendant were parties, defendant was to deliver the merchandise" and that "by reason of the aforesaid agreement. . . it became the obligation of defendant to deliver . . . during the month of January". Sydnor cannot be heard to contradict its own pleadings. Leslie v. Nitz, 212 Va. 480, 484, 184 S.E.2d 755, 758 (1971); Thrasher v. Thrasher, 210 Va. 624, 628, 172 S.E.2d 771, 773-774 (1970); McLaughlin v. Gholson, 210 Va. 498, 501, 171 S.E.2d 816, 818 (1970); Rohanna v. Vazzana, 196 Va. 549, 84 S.E.2d 440 (1954).
Moreover, Sydnor, for whose benefit and at whose risk the cargo was being transported after it was loaded by the seller f. o. b. Roanoke, was a third party beneficiary to the contract of carriage, entitled to sue on the contract, bound by the terms of the contract, and subject to defenses arising out of the contract. Code § 55-22.
We must now decide whether the nine-month notice requirement was a part of the terms of the contract.
In reaching its finding in the affirmative, it was not necessary for the trial court to resolve the question whether Sydnor received the original bill of lading, a memorandum of which was retained by Johnson-Carper.
Code § 8.7-103, part of the Uniform Commercial Code, provides:
"To the extent that any . . . tariff classification or regulation filed. . . is applicable, the provisions of this title are subject thereto."
Code § 8.7-309(3) provides:
"Reasonable provisions as to the time and manner of presenting claims and instituting actions based on the shipment may be included in a bill of lading or tariff." (Emphasis supplied.)
Here, the nine-month notice requirement was included in the form bill of lading filed by Wilson with its tariff schedules. With respect thereto, we reach three conclusions.
First, the nine-month notice requirement is not such a limitation upon liability as that forbidden by Code § 56-119. Liquid Carbonic Co. v. Norfolk & Western Ry. Co., 107 Va. 323, 58 S.E. 569 (1907). And when the carrier complies with the publication requirements of Code § 56-316, the proscription of Code § 56-119 does not apply. Peninsula Transit Corp. v. Jacoby, 181 Va. 697, 26 S.E.2d 97 (1943).
Second, we find the nine-month notice requirement to be a "reasonable provision" within the meaning of Code § 8.7-309(3). Nothing in the record concerning this shipment in particular or the freight industry in general justifies a finding otherwise. The Interstate Commerce Act finds it reasonable. 49 U.S.C. § 20(11). Considering the need for uniformity and stability in commerce, it would be unreasonable for us to find it unreasonable.
Third, even if the bill of lading were never delivered to Sydnor, the bill of lading form containing the nine-month notice requirement, when published with tariff schedules filed with the State Corporation *737 Commission, became a part of the contract of carriage in intrastate commerce, even as it does in interstate commerce when published with tariff schedules filed with the Interstate Commerce Commission. See Atlantic Coast Line Ry. Co. v. Clinchfield Fuel Co., 94 F. Supp. 992 (W.D.S.C. 1951); Eastern Motor Express v. A. Maschemeijer, Jr., Inc., 247 F.2d 826 (2d Cir. 1957); Loveless Mfg. Co. v. Roadway Exp., 104 F. Supp. 809 (N.D.Okl.1952); Kellett v. Alaga Coach Lines, 34 Ala.App. 152, 37 So. 2d 137 (1948); Thos. Foods, Inc. v. Penn. Ry. Co., 112 Ohio App. 76, 168 N.E.2d 612 (1960).
But Sydnor contends that, assuming it was bound by the nine-month notice requirement, its December 30, 1970 written notice was timely filed. Pointing to its large and continual merchandise turnover and its sophisticated, computerized inventory system, and notwithstanding receipt of Johnson-Carper's "late notice" 60 days after the order was placed, Sydnor urges that it did not discover and could not have discovered non-delivery of the cargo until October 1970 when its Assistant Controller and Internal Auditor, Accountant made a second search of the warehouse and records.
Sydnor seems to argue that the nine-month period begins to run after the lapse of a reasonable time for discovery of nondelivery. But under the express language of the notice requirement, the period is triggered by the lapse of a reasonable time for delivery.
The trigger urged by Sydnor would be forever variable. What would be a reasonable time for discovery would depend in each case upon the volume of business and the complexity of the inventory system of a particular consignee. If the nine-month notice requirement is to function fairly and efficiently for both the carrier and the consignee, there must be a point of beginning one that is readily determinable under a standard formula by both parties, and, if need be, by the courts.
We hold that the point of beginning must be at the expiration of a reasonable time for delivery following the consignee's receipt of the seller's invoice.
Here, the January 7, 1970 invoice Sydnor found unpaid in its files 60 days after the order was placed specified on its face that the merchandise was to be shipped to arrive in January, and the trial court found without evidence to the contrary that January was a reasonable time for delivery. We agree.
The nine-month notice period expired in October. Sydnor's December written notice was filed too late. The judgment is affirmed.
Affirmed.
NOTES
[1] In its brief, Sydnor mistakenly refers to this language as "the notice of loss provisions contained in § 2(b) of the Uniform Straight Bill of Lading Act (Act)". Neither the Uniform Bills of Lading Act nor the Uniform Commercial Code in which it was subsumed contain this language. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920225/ | 921 So.2d 23 (2006)
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant,
v.
DIAGNOSTICS OF SOUTH FLORIDA, INC., Appellee.
No. 3D05-396.
District Court of Appeal of Florida, Third District.
January 18, 2006.
Bilzin Sumberg Baena Price & Axelrod, and William K. Hill, and Raquel M. Fernandez, and Melissa C. Pallett-Vasquez, Miami, for appellant.
*24 Sheftall & Torres, and Brian M. Torres, Miami; Zebersky Payne, and Edward H. Zebersky, Hollywood, for appellee.
Before SUAREZ and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
PER CURIAM.
Appellant, United Automobile Insurance Company ("United Auto") appeals from an interlocutory order granting appellee's, Diagnostics of South Florida, Inc.'s ("Diagnostics"), motion for class certification.
Alan Lefort is the sole owner of Diagnostics, a medical provider that performs neurological testing at referring physicians' offices and provides the test results to the physicians. Typically, Diagnostics accepts assignments of insurance benefits from its patients for its services and is subsequently reimbursed by insurers. United Auto is an automobile insurer that provides personal injury protection ("PIP") insurance to its insureds.
On March 11, 1994, Diagnostics conducted various neurological tests on Betty Robinson. At that time, Diagnostics outsourced its billing and collection business to Billing Consultants, Inc., which was owned and operated by David Harrod. On March 26, 1994, Mr. Harrod prepared a claim form for Ms. Robinson's neurological tests in the amount of $1,250, and coded the form as claim number 100867 (the "867 claim"). Mr. Lefort authorized Mr. Harrod to sign and mail the 867 claim to United Auto, Ms. Robinson's insurer. Mr. Harrod could not remember the exact date on which he mailed the 867 claim but, based on his regular practice, stated that he most likely mailed the claim form on March 26, 1994, the same day he prepared it. However, United Auto claims that it did not receive the claim form dated March 26, 1994, and that the first time it received the 867 claim was on May 19, 1994. The May 19 form was stamped "Resubmission" and Mr. Harrod claimed to have submitted it only after submitting the original March 26 form. On June 3, 1994, United Auto issued a timely payment on the resubmitted 867 claim.
In February 1995, Diagnostics filed a class action complaint on behalf of a plaintiff class of medical providers and insureds who are allegedly owed statutory interest pursuant to section 627.736(4), Florida Statutes (1994), on PIP benefits not timely provided by United Auto. Section 627.736(4) provides, in pertinent part:
(4) BENEFITS; WHEN DUE.
. . .
(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.
. . .
(c) All overdue payments shall bear simple interest at the rate of 10 percent per year.
Diagnostics, as the class representative for the putative class, moved for class certification, which United Auto opposed. On November 1, 2004, the trial court entered its Order Granting Plaintiff's Motion for Class Certification and certifying the plaintiff class as:
All insureds of United Auto Ins. Co., health care providers, and all other similarly situated third-party beneficiaries and assignees of PIP benefits who received overdue PIP payments from the Defendant (i.e., PIP payments made more than thirty (30) days after receipt of a notice of loss and a demand for payment), from February 15, 1990 through June 18, 2001, but who were not paid the ten percent (10%) statutory *25 penalty interest as prescribed by law at Fla. Stat. § 627.736(4)(c).
We reverse the trial court's order granting class certification.
A trial court's order certifying a class and determining the qualifications of a plaintiff to adequately represent a class is reviewed for abuse of discretion. Neighborhood Health P'ship, Inc. v. Fischer, 913 So.2d 703, 706 (Fla. 3d DCA 2005); Colonial Penn Ins. Co. v. Magnetic Imaging Sys. I, Ltd., 694 So.2d 852, 854 (Fla. 3d DCA 1997). A trial court's decision as to whether a plaintiff has standing to bring a class action is reviewed de novo. W.S. Badcock Corp. v. Webb, 699 So.2d 859, 861 (Fla. 5th DCA 1997).
The issue of standing is a threshold inquiry which must be made at the outset of the case before addressing whether the case is properly maintainable as a class action. Taran v. Blue Cross Blue Shield of Florida, Inc., 685 So.2d 1004, 1006 (Fla. 3d DCA 1997); Baptist Hosp. of Miami v. DeMario, 683 So.2d 641, 643 (Fla. 3d DCA 1996). To satisfy the requirement of standing, the plaintiff must show that a case or controversy exists between the plaintiff and the defendant. Godwin v. State, 593 So.2d 211 (Fla. 1992); Montgomery v. Dep't of Health and Rehabilitative Servs., 468 So.2d 1014 (Fla. 1st DCA 1985). If it is demonstrated at the outset that the plaintiff who filed the class action suffered no injury and has no cause of action against the defendant, the class should not be certified. Neighborhood Health, 913 So.2d at 706.
United Auto contends that Diagnostics does not have standing to bring the class action. Specifically, United Auto asserts that it does not owe statutory interest pursuant to section 627.736(4) because United Auto timely submitted its payment to Diagnostics within thirty (30) days of receipt of the resubmitted 867 claim dated May 19, 1994. Alternatively, United Auto contends that, even assuming Diagnostics sent the 867 claim to United Auto on March 26, 1994 rather than May 19, 1994, United Auto still would not owe statutory interest to Diagnostics as the undisputed evidence shows that the applicable $2,000 deductible[1] for Ms. Robinson would not have been met as of March 26, 1994.
We agree with United Auto that Diagnostics lacks standing to bring a class action. Assuming that the 867 claim was sent to United Auto on March 26, 1994, it is undisputed that the $2,000 deductible had not been met as of that date. Accordingly, United Auto was not required to make any PIP payments to Diagnostics until after the $2,000 deductible for Ms. Robinson was met and, as a result, did not owe statutory interest to Diagnostics.
Since Diagnostics did not suffer injury and has no cause of action against United Auto, it does not have standing to pursue a class action claim or represent a class. See Neighborhood Health, 913 So.2d at 706; Taran, 685 So.2d at 1006; see also Webb, 699 So.2d at 860. When the class plaintiff lacks individual standing, the proper procedure is to deny class certification and dismiss the complaint. Neighborhood Health, 913 So.2d at 706; Taran, 685 So.2d at 1006.
*26 We conclude that Diagnostics has no claim for damages and, therefore, no standing to pursue a class action. See Neighborhood Health, 913 So.2d at 706. Accordingly, we reverse the class certification order.
NOTES
[1] It is undisputed that the applicable deductible in this case was $2,000. Furthermore, section 627.739(2), Florida Statutes (1994), provides in pertinent part:
(2) Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, $1,000, and $2,000, such amount to be deducted from the benefits otherwise due each person subject to the deduction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3768917/ | OPINION
{¶ 1} Appellant, Joseph M. Starcovic ("Mr. Starcovic"), appeals from the judgment of the Portage County Municipal Court, Ravenna Division, overruling his motion to suppress evidence. For the reasons that follow, we reverse and remand.
{¶ 2} Statement of Facts and Procedural History
{¶ 3} On Saturday, August 26, 2006, at approximately 9:00 a.m., Officer Joseph Smolik ("Officer Smolik") of the city of Streetsboro police department observed a commercial vehicle, a dump truck, traveling westbound on State Route 303. Because *Page 2
the rear license plate appeared to be covered with black tar and dirt concealing the registration sticker and the license plate numbers, Officer Smolik pulled the truck over, which was being driven by Mr. Starcovic.
{¶ 4} As part of the traffic stop, Officer Smolik asked Mr. Starcovic to see his driver's license and to produce the weight bill and bill of lading for the load he was hauling. Officer Smolik referred to the bill of lading and then measured the tires. Using his "cheat sheet," he referenced the tire measurements to the chart and drew the conclusion that Mr. Starcovic was probably carrying an overload. Officer Smolik asked Mr. Starcovic to follow him to the police station so that his vehicle could be weighed. The vehicle weighed 79,330 pounds, over 9,000 pounds over the legal limit. After weighing the vehicle and while speaking to Mr. Starcovic, Officer Smolik detected a moderate odor of alcohol on Mr. Starcovic.
{¶ 5} Mr. Starcovic submitted to a breathalyzer test, which revealed that he had a .083% blood alcohol level. As a result, Mr. Starcovic was cited for driving under the influence of alcohol, in violation of R.C. 4511.19(A)(1)(a) and (d); for driving a commercial vehicle while having a measurable or detectable amount of alcohol on the person's breath, in violation of R.C. 4506.15(A)(2); and for carrying a commercial load in excess of the limit provided for in R.C. 5577.04.
{¶ 6} Mr. Starcovic filed a motion to suppress arguing that after the initial traffic stop, the police lacked probable cause to conduct any further investigation, including the right to conduct any field sobriety tests. The trial court overruled the motion to suppress.
{¶ 7} Mr. Starcovic was convicted of driving under the influence of alcohol, in violation of R.C. 4511.19(A)(1)(a), and the remaining charges were dismissed. Mr. *Page 3
Starcovic was sentenced to 180 days in jail, a fine of $1,000, and a six month driver's license suspension. The court suspended 177 days of the jail sentence and $650 of the fine, provided Mr. Starcovic commits no alcohol related offenses in the next two years, completes seventy-two hours of a driver intervention prevention school, and does not drive while under suspension.
{¶ 8} Mr. Starcovic filed the instant appeal, raising one assignment of error: "The Trial Court erred in overruling Appellant's Motion to Suppress evidence."
{¶ 9} Standard of Review
{¶ 10} "When ruling on a motion to suppress, we give `due deference to the trial court's assignment of weight and inferences drawn from the evidence.'" State v. Wilson, 11th Dist. No. 2007-A-0044, 2007-Ohio-6557, at ¶ 11, citing State v. Zaken, 11th Dist. No. 2006-A-0036,2007-Ohio-2306, at ¶ 14, citing State v. Perl, 11th Dist. No. 2006-L-082, 2006-Ohio-6100, at ¶ 9, citing State v. Hummel (2003),154 Ohio App.3d 123, 2003-Ohio-4602, at ¶ 11.
{¶ 11} "Appellate review of a motion to suppress presents a mixed question of law and fact." Id. at ¶ 12, citing Village of Kirtland Hillsv. Sulc, 11th Dist. No. 2007-L-026, 2007-Ohio-4224, at ¶ 12, citingState v. Korman, 11th Dist. No. 2004-L-064, 2006-Ohio-1795, at ¶ 12, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8. "The appellate court must accept the trial court's factual findings, provided they are supported by competent, credible evidence. * * * Thereafter, the appellate court must independently determine whether those factual findings meet the requisite legal standard." Id. citingBurnside at ¶ 8. We review the trial court's application of the law de novo. Id. citing Zaken at ¶ 14.
{¶ 12} Motion to Suppress *Page 4
{¶ 13} Mr. Starcovic contends that his motion to suppress should have been granted because after the initial traffic stop, the police had no probable cause to continue to interrogate him. Specifically, Mr. Starcovic contends that although the initial traffic stop may have been justified because there was dirt and tar covering the license plate, once the officer was able to determine that the vehicle had a valid registration sticker on the vehicle, the police lacked probable cause to further investigate the load of the vehicle or to stop him for a potential operating vehicle intoxicated offense.
{¶ 14} Initial Stop
{¶ 15} "`It is well established that an officer may stop a motorist upon his or her observation that the vehicle in question violated a traffic law.' State v. Boczar, 11th Dist. No. 2004-A-0063,2005-Ohio-6910, at ¶ 11, citing Dayton v. Erickson (1996),76 Ohio St.3d 3, 11-12. Moreover, this court has repeatedly held that when a police officer witnesses a minor traffic violation, he or she is warranted in making a stop to issue a citation. Village of Waite Hill v.Popovich, 11th Dist. No. 2001-L-227, 2003-Ohio-1587, at P14." State v.Brooks, Jr., 11th Dist. No. 2005-L-200, 2007-Ohio-344, at ¶ 32. Thus, as Mr. Starcovic recognizes, because his license plate was obstructed, Officer Smolik was warranted in making the initial stop. Id. at ¶ 33. See, also, R.C. 4503.21, which requires a motorist to display in plain view a license plate with a valid registration sticker. Cf.Brooks, supra, where this court upheld the trial court's granting of a motion to suppress, finding that where seventy-five percent of the license plate tags were visible, there was no license plate obstruction, and, therefore, the police lacked probable cause to make the initial traffic stop.
{¶ 16} Continued Detention After Initial Traffic Stop *Page 5
{¶ 17} We now turn to the issue of whether there was probable cause with respect to Mr. Starcovic's continued detention and investigation of the truck's apparent overload violation and subsequent submission to a breathalyzer test arising from the officer's suspicion that Mr. Starcovic was operating the vehicle under the influence of alcohol.
{¶ 18} "In evaluating the propriety of an investigative stop, the reviewing court must examine the totality of the circumstances surrounding the stop as `viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.'" State v. Colby, 11th Dist. No. 2002-P-0061, 2004-Ohio-343, at ¶ 21, citing State v. Andrews (1991), 57 Ohio St.3d 86, 87-88. "The pivotal inquiry * * * is whether [the officer] was justified in his continued detention of appellant. Once the suspicion which gave rise to the initial stop evaporated, any additional intrusion or detention had to have been supported by specific and articulable facts demonstrating the reasonableness of the continued detention." Id. at ¶ 22, citingState v. Chatton (1984), 11 Ohio St.3d 59, 63.
{¶ 19} "In particular to the investigation of overweight trucks, R.C. 4513.33 states that: `[a]ny police officer having reason to believe that the weight of a vehicle and its load is unlawful may require the driver of said vehicle to stop and submit to a weighing. . . . ' The `reason to believe' requirement is a lower standard than the constitutional concept of probable cause." State v. Swain, 5th Dist. No. 2005CA00243,2006-Ohio-2727, ¶ 16, citing State v. Compton, 5th Dist. No. 01CA00012, 2001-Ohio-1559. "The `reason to believe' standard has been interpreted to be the same as the `reasonable suspicion' standard as set forth inTerry v. Ohio (1968), 392 U.S. 1, and its *Page 6
progeny." Id., citing State v. Myers (1990), 63 Ohio App.3d 765, 770
(citing State v. Wells (1983), 11 Ohio App.3d 217, 221).
{¶ 20} "Therefore, for a police officer to stop a vehicle and check its weight, the officer must be able to point to some reasonable and articulable facts that, when taken together with the rational inferences from those facts, lead the officer to believe that `the weight of the vehicle and its load is unlawful.'" Id., citing Myers at 770.
{¶ 21} "An investigatory stop `must be viewed in the light of the totality of the surrounding circumstances' presented to the police officer." Id., citing State v. Freeman (1980), 64 Ohio St.2d 291, paragraph one of the syllabus. See, also, State v. Elder (1989),65 Ohio App.3d 463; City of Conneaut v. Miller (Dec. 4, 1998), 11th Dist. No. 97-A-0069, 1998 Ohio App. LEXIS 5814.
{¶ 22} Based upon our review of the evidence presented by the state during the suppression hearing, if we were to find a "reason to believe" existed in this case, then we would be in effect setting a much lower standard than the reasonable suspicion standard that is required to conduct an investigatory stop. By his own testimony, Officer Smolik did not suspect the truck was overloaded when he proceeded to measure the tires. Thus, wholly lacking in this case is any observation that would indicate the truck was hauling an overload that warranted the further investigation.
{¶ 23} Specifically, when asked whether he initially observed if the truck was hauling an overload, Officer Smolik responded that he was entirely focused on the obscured license plate and made no such observations as the truck drove past. Officer Smolik then testified that it was routine procedure to request the driver's license and bill of lading when conducting a traffic stop of a commercial vehicle. His very next action was to measure the tires and check them against the bill of lading and his "cheat sheet." *Page 7
Only then did he have a "reason to believe" that Mr. Starcovic was carrying a heavy load. Thus, we would have to draw a conclusion that Officer Smolik made some sort of observation that indicated to him the truck was hauling an overload and that the tires needed to be measured other than just out of routine procedure. The problem presented by the state of the evidence in this case is that we have no premise from which to draw this conclusion or inference.
{¶ 24} Our district, and other districts have routinely found a "reason to believe" in cases where the officer has made some kind of observation, such as bulging tires, heavy exhaust fumes, or difficulty driving, that were indicia of a truck carrying an overload. These observations combined with the officer's experience and training is enough to satisfy the "reason to believe" standard. See Miller at 11-12 (Officer's experience and observations that the tires were bulging and that large amounts of black smoke were being emitted from the exhaust pipe gave the officer a reason to believe the truck was overloaded and warranted further investigation); State v. Snyder, 4th Dist. 02CA575, 2003-Ohio-2039 (Trooper's experience combined with his observations that the truck was "pulling hard" and had bulging tires constituted a "reason to believe" the truck was overloaded); State v. Ratta, 5th Dist. No. 2004CA00070, 2004-Ohio-6140 (Bulging tires coupled with officer's training and experience can give rise to a reasonable suspicion that a vehicle exceeds applicable weight restrictions); See, also,Swain at ¶ 17 (Officer's observations that the truck looked heavy, was blowing black smoke, with bulging tires, and observation that it was "pulling real hard" combined with his experience and training gave rise to a reasonable suspicion).
{¶ 25} Although we may surmise that the officer observed some indicia of an overload in his unconscious, we cannot read his mind and draw that conclusion. The *Page 8
facts of this case dangle perilously close to painting a picture of a simple "fishing expedition" that proved fruitful.
{¶ 26} Thus, the trial court should have granted Mr. Starcovic's motion to suppress.
{¶ 27} The judgment of the Portage County Municipal Court, Ravenna Division, is reversed and this case is remanded for further proceedings.
TIMOTHY P. CANNON, J., concurs,
DIANE V. GRENDELL, P.J., dissents with a Dissenting Opinion. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1617555/ | 38 So. 3d 99 (2009)
Eugene Oliver ANDREWS
v.
STATE of Alabama.
CR-07-0762.
Court of Criminal Appeals of Alabama.
March 20, 2009.
J.E. Sawyer, Enterprise, for appellant.
Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
KELLUM, Judge.
The appellant, Eugene Oliver Andrews, appeals the trial court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his 2004 conviction for manslaughter, and the resulting 20-year sentence. This Court affirmed his conviction and sentence in an unpublished memorandum. Andrews v. State (No. CR-04-0055), 945 So. 2d 1096 (Ala.Crim.App.2005) (table). A certificate of judgment was issued on September 21, 2005.
On November 21, 2007, Andrews, through counsel, filed a Rule 32, Ala. R.Crim. P., petition in the Houston Circuit Court.[1] In the petition, he alleged several allegations of ineffective assistance of counsel.[2]
On November 28, 2007, before any response from the State, the trial court scheduled an evidentiary hearing.
On December 7, 2007, the State moved for summary disposition of Andrews's Rule 32 petition. The State argued, in relevant part:
"The Court of Criminal Appeals issued the Certificate of Judgment on September 21, 2005. The limitations period for filing a Rule 32 petition is one year from the date the certificate of judgment is filed. The limitation period is jurisdictional *100 in nature. Unless an untimely petition contains claims of a jurisdictional nature, a reviewing court is precluded from even entertaining the petition, Williams v. State, 783 So. 2d 135, 137 (Ala.Crim.App. Oct.27, 2000). The present petition does not raise any jurisdictional claims and therefore the court is without jurisdiction to proceed."
On December 19, 2007, an evidentiary hearing was held. Andrews, who was represented by new counsel, was the only witness to testify. He testified that his trial counsel was not accessible before trial and that his counsel met with him very few times before trial. Andrews maintained that despite his contention that he acted in self-defense, his trial counsel refused to consider a self-defense strategy. Andrews testified that on the day of trial, his trial counsel allowed the charge to be "changed" from murder to manslaughter without his permission. He also claimed that his trial counsel did not present character witnesses, despite Andrews's request that he do so.
On that same day, the trial court denied the petition with the following notation: "The Court finds that the allegations of defendant's Rule 32 petition are not true. It is therefore ordered that defendant's Rule 32 petition is denied." This appeal followed.
On appeal, Andrews reasserts his claims of ineffective assistance of counsel and argues that the trial court erred in denying his Rule 32 petition.[3]
The State maintains that the petition was properly denied because, it says, the petition was untimely. Further, the State specifically asks this Court to affirm the denial of Andrews's petition on that basis. In the alternative, the State argues that even though the trial court did not deny the petition on the ground that it was untimely, this Court can still affirm the trial court's judgment if the denial was correct for any reason.
Rule 32.2(c), Ala. R.Crim. P., provides, in relevant part:
"Subject to the further provisions hereinafter set out in this section, the court shall not entertain any petition for relief from a conviction or sentence on the grounds specified in Rule 32.1(a) [constitutional violations] and (f) [failure to file a timely appeal through no fault of the petitioner's], unless the petition is filed: (1) In the case of a conviction appealed to the Court of Criminal Appeals, within one (1) year after the issuance of the certificate of judgment by the Court of Criminal Appeals under Rule 41, Ala. R.App.P. . . . The court shall not entertain a petition based on the grounds specified in Rule 32.1(e) [newly discovered material facts] unless the petition is filed within the applicable one-year period specified in the first sentence of this section, or within six (6) months after the discovery of the newly discovered material facts, whichever is later . . . ."
(Emphasis added.)
The certificate of judgment in this case was issued on September 21, 2005. Andrews filed this Rule 32 petition on November 21, 2007over two years after the certificate of judgment was issued. Andrews allegations of ineffective assistance of counsel were neither jurisdictional nor newly discovered; therefore, his claim was precluded. Because the claim was precluded, the trial court could have summarily *101 dismissed the petition pursuant to Rule 32.7(d), Ala.R.Crim.P. ("If the court determines that the petition is . . . precluded. . . the court may either dismiss the petition or grant leave to file an amended petition.").
Rather than summarily dismissing the petition, however, the trial court conducted a hearing and took testimony on the merits of Andrews's ineffective-assistance-of-counsel allegations. Following the hearing, the trial court denied the petition without making specific findings of fact, as required by Rule 32.9(d), Ala. R.Crim. P. ("The court shall make specific findings of fact relating to each material issue of fact presented.") (emphasis added).
On February 6, 2009, while this case was pending, the Alabama Supreme Court released its decision in Ex parte Martinez, [Ms. 1061237, February 6, 2009].[*] The procedural posture of that case is very similar to the present case, with one notable exception addressed below.
Martinez was convicted of murder on May 14, 2003. This Court affirmed his conviction and sentence, in an unpublished memorandum, on February 20, 2004. Martinez v. State, 910 So. 2d 836 (Ala. Crim.App.2004) (table). A certificate of judgment was entered on March 10, 2004. On September 28, 2005, more than a year after the certificate of judgment was issued, Martinez filed a Rule 32, Ala. R.Crim. P., petition. In the petition, Martinez alleged a number of grounds for relief, including several allegations of ineffective assistance of trial counsel. Martinez also argued that he should not be precluded by the time limitations in Rule 32.2(c), Ala. R.Crim. P., because, he argued, his inability to speak English interfered with his ability to pursue postconviction relief. The trial court conducted an evidentiary hearing, then dismissed the petition.
Martinez appealed the trial court's dismissal of the Rule 32 petition, and this Court affirmed, by an unpublished memorandum, on the ground that the claims were precluded by the limitations period set forth in Rule 32.2(c), Ala. R.Crim. P., a ground not stated in the trial court's order of dismissal. Martinez v. State (No. CR-06-0020, April 20, 2007), 9 So. 3d 580 (Ala. Crim.App.2007) (table).
The Alabama Supreme Court granted certiorari review "to determine whether the Court of Criminal Appeals was correct in sua sponte applying the limitations period of Rule 32 to Martinez's petition." Ex parte Martinez, ___ So.3d at ___.[**] The Court concluded:
"We recognize that the present case presents unique circumstances in that, at the trial court level, the State did argue that Martinez's petition was barred by the applicable one-year limitations period of Rule 32.2(c), Ala. R.Crim. P. However, the trial court heard Martinez's petition on the merits and issued its ruling; it did not reference the limitations bar of Rule 32.2(c) in its order. The Court of Criminal Appeals, sua sponte, applied the limitations period of Rule 32.2(c) to Martinez's claims. While Martinez's application for rehearing to *102 the Court of Criminal Appeals was pending, this Court issued its opinion in Ex parte Clemons, [Ms. 1041915, May 4, 2007] ___ So.3d ___ (Ala.2007), addressing a court's sua sponte application of a procedural bar [an appellate court cannot apply a procedural bar sua sponte], and while Martinez's certiorari petition was pending, this Court issued its opinion in Ex parte Ward, [Ms. 1051818, June 1, 2007] ___ So.3d ___ (Ala.2007) addressing equitable tolling of the limitations period [the 1-year limitation in 32.2(c) is not jurisdictional; however, when a petition is time-barred on its face, the petitioner bears the burden of pleading and proving the doctrine of equitable estoppel]. Under the facts of this case, Martinez did not have the benefit of this Court's recent rulings in Clemons and Ward to afford him the opportunity to argue the equitable tolling of the limitations period. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the case to that court for consideration of Martinez's claim that he is entitled to the remedy afforded by the doctrine of equitable tolling and, if it decides that he is, whether the trial court was correct in denying Martinez's petition."
Ex parte Martinez, ___ So.3d at ___.[***]
We find Justice Murdock's concurrence in Ex parte Martinez to be especially relevant to this case. He wrote:
"The main opinion reasons that, because the trial court did not reference the bar of the limitations period of Rule 32.2(c), Ala. R.Crim. P., in its judgment, the Court of Criminal Appeals `sua sponte' applied that bar. From this premise, the main opinion deems Ex parte Clemons, [Ms. 1041915, May 4, 2007] ___ So.3d ___ (Ala.2007), to be one of two Supreme Court precedents `dispositive' in this case. I do not agree that the issue of the Rule 32.2(c) limitations period was raised `sua sponte' by the Court of Criminal Appeals in the same sense addressed in Ex parte Clemons. Accordingly, I find Ex parte Clemons to be inapposite.
"In Ex parte Clemons, the State did not raise as an affirmative defense in the trial court the procedural bar at issue in that case, namely, a preclusive bar under Rule 32.2(a). The issue this Court addressed, therefore, was whether a preclusive bar under that rule is jurisdictional and thus could properly be raised and addressed by the Court of Criminal Appeals despite the fact that the State had failed to raise it in the trial court. We held in Ex parte Clemons that, when such an issue has been waived in the trial court by the State, the appellate court may not raise it sua sponte. See Ex parte Clemons, ___ So.3d at ___.
"Here, however, the State did not waive the procedural bar at issue (namely, the limitations period of Rule 32.2(c)) in the trial court. To the contrary, the State expressly raised this defense in the motion to dismiss that it filed in the trial court.
"The raising of this issue by the Court of Criminal Appeals, therefore, was not sua sponte in the sense addressed in Ex parte Clemons. Rather, the Court of Criminal Appeals, without implicating in any way the holding of Ex parte Clemons, was able to raise the issue of the limitations period under the general *103 principle of appellate review that a trial court's judgment can be affirmed on any legal ground even if that ground was not relied upon by the trial court. See A.G. v. State, 989 So. 2d 1167 (Ala.Crim.App. 2007)."
Ex parte Martinez, ___ So.3d ___ at ___ (footnote omitted).[]
In this case, as in Ex parte Martinez, the State argued that the petition was due to be dismissed because the allegations of ineffective assistance of`counsel were time-barred under Rule 32.2(c), Ala. R.Crim. P. The State never waived that contention and, in fact, reasserts that ground of preclusion on appeal as a basis on which to affirm the judgment of the trial court.
Despite the State's assertion that the petition was precluded, the trial court, like the trial court in Ex parte Martinez, conducted an evidentiary hearing and denied the petition without referencing "the limitations bar of Rule 32.2(c) in its order." Ex parte Martinez, ___ So.3d at ___.[]
However, unlike the situation in Ex parte Martinez, Andrews's Rule 32 petition was filed on November 21, 2007, after the Alabama Supreme Court's decisions in Ex parte Clemons and Ex parte Ward. Therefore, Andrews did "have the benefit of [the Alabama Supreme Court's] recent rulings in Clemons and Ward," and he could have argued the doctrine of "equitable tolling" as a means to avoid the limitations of Rule 32.2(c). Ex parte Martinez, ___ So.3d at ___.[] At no point did Andrews assert the doctrine of equitable tolling or even argue that his petition should not be subject to the limitations period set forth in Rule 32.2(c), Ala. R.Crim. P.
The due-process concerns that necessitated reversal in Ex parte Martinez, are not present in this case. Accordingly, pursuant to the long-standing principle that this Court can affirm the judgment of the trial court if it is correct for any reason, see, e.g., A.G. v. State, 989 So. 2d 1167 (Ala.Crim.App.2007), we do not believe that it would constitute error, harmless or otherwise, for this Court to apply the ground of preclusion in Rule 32.2(c), even though the trial court did not reference this ground in its order.
However, we are unable to apply that ground of preclusion and affirm the judgment of the trial court in this case, because the trial court did not make specific findings of fact following the evidentiary hearing. In the recent case of Ex parte McCall, 30 So. 3d 400 (Ala.2008), the Alabama Supreme Court held:
"[A] hearing need not be held if the petitioner fails to adequately present a material issue. If, however, the court holds a hearing, then Rule 32.9, Ala. R.Crim. P., provides, in pertinent part, as follows:
"`(a) Hearing. Unless the court dismisses the petition, the petitioner shall be entitled to an evidentiary hearing to determine disputed issues of material fact . . . .'
". . . .
*104 "`(d) Findings of Fact. The court shall make specific findings of fact relating to each material issue of fact presented.'
"Thus, the trial court must first determine whether the petition raises `material issue[s] of fact or law . . . which would entitle the petitioner to relief under [Rule 32].' Rule 32.7(d). Once a hearing is held on those issues, the trial court is required to make findings of fact as to each of the material issues upon which the hearing was held. See Ex parte Grau, [791 So. 2d 345 (Ala. 2000)].
"In this case, McCall petitioned for postconviction relief alleging 12 grounds of ineffective assistance of counsel. The trial court held an evidentiary hearing on the petition. By holding that hearing, the trial court implicitly found that the issues presented were `material issue[s] of law or fact . . . which would entitle [McCall] to relief,' Rule 32.7(d), and, under Rule 32.9(d), the trial court therefore had a responsibility to make findings of fact as to each of those issues. Instead of issuing any such findings, however, the trial court dismissed McCall's petition on the ground that his `bare allegations' of prejudice were not sufficient to state a claim of ineffective assistance of counsel. Although this conclusion may have been an appropriate basis for a summary dismissal of the petition before a hearing was held, once a hearing has been held Rule 32.9(d) requires findings of fact in support of the judgment. Under our decision in Ex parte Grau, [791 So. 2d 345 (Ala. 2000,)], the trial court's failure to issue such findings is grounds for reversal. Therefore, the Court of Criminal Appeals' decision to affirm the trial court's judgment conflicts with Ex parte Grau, and we reverse the Court of Criminal Appeals' decision and remand the case to that court for proceedings consistent with this opinion."
30 So.3d at 403-404 (emphasis added).
The claims in Andrews's petition are precluded by the limitations period in Rule 32.2(c), Ala. R.Crim. P. Accordingly, we believe that, based upon our rationale discussed above, the judgment of the trial court denying the petition should be affirmed on that ground, even though that ground was not made the basis of the trial court's order of denial. However, because the trial court scheduled a hearing before any response from the State was filed, we would not presume that by holding the hearing the trial court "implicitly found that the issues presented were `material issue[s] of law or fact . . . which would entitle [Andrews] to relief.'" Ex parte McCall, 30 So.3d at 404.
Although it seems a waste of scarce judicial resources to remand this case for the trial court to enter a new order setting forth its specific findings of fact, we are nevertheless bound by the Court's holding in Ex parte McCall. However, as Presiding Judge Wise has written, we "urge the Alabama Supreme Court to consider amending Rule 32.2(d) so that in future cases, this Court has the discretion to determine whether a remand is necessary." Johnson v. State, 976 So. 2d 1052, 1053 (Ala.Crim.App.2007) (Wise, J., dissenting).
Based on the foregoing, we remand this cause for the circuit court to enter an order consistent with this opinion. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days of the release of this opinion.
REMANDED WITH INSTRUCTIONS.[]
*105 WISE, P.J., and WELCH and WINDOM, JJ., concur.
NOTES
[1] Although the petition was not filed on the proper Rule 32 form, the trial court treated the petition as a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. The petition was not verified, but this lack of verification was not challenged by the State and is therefore waived. Smith v. State, 918 So. 2d 141 (Ala.Crim.App.2005).
[2] According to Andrews, he was represented at trial and on appeal by the same counsel.
[3] In his brief to this Court, he cites several new instances of ineffective assistance of counsel. An ineffective-assistance claim based on these instances was not presented to the trial court and will not be considered for the first time in this appeal. See Dickey v. State, 901 So. 2d 750, 756 (Ala.Crim.App. 2004).
[*] Note from the reporter of decisions: On May 29, 2009, on application for rehearing, the Alabama Supreme withdrew its February 6, 2009, opinion and substituted another opinion. Ex parte Martinez, [Ms. 1061237, May 29, 2009] ___ So.3d ___ (Ala.2009).
[**] Note from the reporter of decisions: On May 29, 2009, on application for rehearing, the Alabama Supreme withdrew its February 6, 2009, opinion and substituted another opinion. Ex parte Martinez, [Ms. 1061237, May 29, 2009] ___ So.3d ___ (Ala.2009). The quoted language was slightly altered in the substituted opinion.
[***] Note from the reporter of decisions: On May 29, 2009, on application for rehearing, the Alabama Supreme withdrew its February 6, 2009, opinion and substituted another opinion. Ex parte Martinez, [Ms. 1061237, May 29, 2009] ___ So.3d ___ (Ala.2009). The quoted material does not appear in the substituted opinion.
[] Note from the reporter of decisions: On May 29, 2009, on application for rehearing, the Alabama Supreme withdrew its February 6, 2009, opinion and substituted another opinion. Ex parte Martinez, [Ms. 1061237, May 29, 2009] ___ So.3d ___ (Ala.2009). Justice Murdock issued an opinion concurring in the result in the February 6, 2009, opinion, joined by Justice Stuart and Justice Parker. Those Justices concurred in the opinion substituted on May, 29, 2009; therefore, Justice Murdock did not issue a separate opinion.
[] Note from the reporter of decisions: On May 29, 2009, on application for rehearing, the Alabama Supreme withdrew its February 6, 2009, opinion and substituted another opinion. Ex parte Martinez, [Ms. 1061237, May 29, 2009] ___ So.3d ___ (Ala.2009). The quoted material does not appear in the substituted opinion.
[] Note from the reporter of decisions: On June 12, 2009, on return to remand, the Court of Criminal Appeals affirmed, without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617462/ | 190 S.W.3d 41 (2005)
CONSECO FINANCE SERVICING CORP. f/k/a, Green Tree Financial Servicing Corporation, Appellant,
v.
Elipidio CABRERA, Heribertha Cabrera and All Unknown Occupants, Appellees.
No. 07-02-0478-CV.
Court of Appeals of Texas, Amarillo.
July 15, 2005.
*42 Richard A. McKinney, Higier Lautin Foxman McKinney & Owen, PC, Addison, for Appellant.
Elipidio Cabrera, Muleshoe, pro se.
Heribertha Cabrera, Muleshoe, pro se.
Before REAVIS and CAMPBELL and HANCOCK, JJ.
OPINION
DON H. REAVIS, Justice.
Presenting one issue, Conseco Finance Servicing Corporation f/k/a Green Tree Financial Servicing Corporation (Conseco) contends the trial court erred by denying Conseco possession of a manufactured home which secured the contract. Based on the following rationale, we affirm.
On April 2, 1998, Elipidio Cabrera and Heribertha Cabrera signed a Manufactured Home Retail Installment Contract and Security Agreement in the principal amount of $21,426.85 to purchase a 1998 Clayton Manufactured Home. Upon default in the payment of monthly installments per the contract, Conseco filed suit on the contract seeking foreclosure of its security interest and attorney's fees. When the Cabreras did not file an answer or appear, Conseco filed a written motion for default judgment for the balance owing per the contract and attorney's fees. In addition, by paragraph six of its motion, Conseco requested the following:
this Court order the Sheriff or Constable of the County where that certain 1998 Clayton Manufactured Home; Serial No. CBH005584TX (the "manufactured home") is located to attach the Manufactured Home and deliver possession of the Manufactured Home to Conseco with any subsequent sale of the Manufactured Home to be applied to the judgment or alternatively, that the Sheriff or Constable of the County where the Manufactured Home is located, attach the Manufactured Home, sell it and apply any proceeds to Conseco's judgment.
(Emphasis added).[1] The trial court signed the default judgment submitted by counsel *43 for Conseco on August 30, 2002, that, among other things, recited that Conseco was allowed such writs and processes as may be necessary to the enforcement and collection of the judgment. However the trial court did not award Conseco any attorney's fees and costs as to the Unknown Occupant(s) and declined to expressly order that the Sheriff or Constable attach the manufactured home and deliver it to Conseco. A reporter's record has not been provided.[2]
By its sole issue, Conseco contends the trial court erred by denying it possession of the manufactured home which secures the contract. We disagree.
We commence our analysis by noting that Conseco decided to proceed via judicial foreclosure as authorized by section 9.601 of the Business and Commerce Code as opposed to proceeding with nonjudicial enforcement proceedings authorized by the contract and section 9.609. See Tex. Bus. & Com.Code Ann. §§ 9.601(a)(1), 9.609 (Vernon 2002). Although Conseco's pleadings sought an attachment of the manufactured home, because it did not file an application for the issuance of a writ of attachment and order per Rule 592 of the Rules of Civil Procedure or offer to provide a bond as required by Rule 592a and section 61.023 of the Civil Practice and Remedies Code, Conseco was not entitled to a writ of attachment.[3]See Tex. Civ. Prac. & Rem.Code Ann. § 61.023 (Vernon 1997). However, having reduced its claim to judgment as authorized by section 9.601(e) of the Business and Commerce Code, Conseco is entitled to request that the clerk issue an execution per Rules 621 and 631 of the Rules of Civil Procedure for the sale of the manufactured home as opposed to a writ of attachment. See Tex. Bus. & Com.Code Ann. § 9.601(e).
Moreover, page two of the judgment provides in part:
THE COURT FURTHER FINDS that Plaintiff is entitled to possession of the Manufactured Home which is the subject of this suit with the proceeds from the sale of the Manufactured Home to be applied to the Judgment Amount.
Then, on page three, the judgment concludes:
Plaintiff is allowed such writs and processes as may be necessary in the enforcement and collection of this judgment.
In addition to its right to request the clerk to issue an execution, as the owner of the judgment, Conseco is entitled to seek the court's assistance to obtain satisfaction on the judgment as authorized by section 31.002 of the Civil Practice and Remedies Code Annotated. See Tex. Civ. Prac. & Rem.Code Ann. § 31.002 (Vernon Supp. 2004-05). Conseco's sole issue is overruled.
Accordingly, the judgment of the trial court is affirmed.
NOTES
[1] From the record, it appears that appellant's counsel prepared the proposed judgment and mailed it to the trial court. As material here, Conseco proposed that the judgment also provide:
It is further ordered, adjudged and decreed that the Sheriff or Constable of the County where that certain 1998 Clayton Manufactured Home; Serial No. CBH005584TX (the "Manufactured Home") is located shall attach the Manufactured Home and take any and all steps necessary to deliver possession of the Manufactured Home to Conseco with the proceeds from any subsequent sale of the Manufactured Home to be applied to the judgment or alternatively, that the Sheriff or Constable of the County where the Manufactured Home is located, attach the Manufactured Home, sell it, and apply the proceeds to Conseco's judgment.
However, the trial court struck the requested provision.
[2] Because the judgment was rendered as a default, we assume that no evidence, argument, or objections were made when the motion for default judgment was considered by the trial court.
[3] Conseco's motion did not seek an order of sale as authorized by Rule 309 of the Rules of Civil Procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617540/ | 132 Mich. App. 656 (1984)
347 N.W.2d 774
PEOPLE
v.
ROSE
Docket No. 69261.
Michigan Court of Appeals.
Decided March 6, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and David M. McClorey, Assistant Prosecuting Attorney, for the people.
Jacobs & Engle, P.C. (by Kathleen A. Wheeler), for defendant.
Before: ALLEN, P.J., and R.M. MAHER and R.H. BELL,[*] JJ.
PER CURIAM.
The prosecutor appeals the dismissal with prejudice of the charge against defendant for receiving and concealing stolen property *658 valued over $100, MCL 750.535; MSA 28.803. By opinion dated January 11, 1983, the trial court ruled that defendant was an "inmate" for purposes of the 180-day rule and granted defendant's motion to dismiss.
Defendant was arrested on June 16, 1982, while on parole from the Department of Corrections. He was unable to make bail and was therefore detained in the Jackson County jail. On June 28, 1982, defendant waived preliminary examination and the Department of Corrections placed a parole hold against him. Following the pretrial conference on October 15, 1982, defendant filed motions to suppress testimony, for severance of his trial from that of his codefendants and for a bill of particulars. The motions were granted, and on December 20, 1982, the trial date was set for January 18, 1983. Defendant filed a motion to dismiss for violation of the 180-day rule of MCL 780.131 et seq.; MSA 28.969(1) et seq., on December 23, 1982.
The question presented is whether an individual detained in a local facility, and against whom a parole hold has been filed, is "an inmate of a penal institution of this state" to whom the protection of the 180-day rule applies. We hold that he is not and reverse the order of dismissal entered by the trial court.
In People v Hill, 402 Mich. 272, 280-281; 262 NW2d 641 (1978), the Supreme Court set forth the following discussion on the running of the 180-day statutory time period:
"We hold that the statutory period begins with the coincidence of either conditions 1 or 2 and condition 3:
"1) The issuance of a warrant, indictment or complaint against a person incarcerated in a state prison or *659 under detention in any local facility awaiting incarceration in any state prison;
"2) The incarceration of a defendant in a state prison or the detention of such defendant in a local facility to await such incarceration when there is an untried warrant, indictment, information or complaint pending against such defendant; and
"3) The prosecutor knows or should know that the defendant is so incarcerated when the warrant, indictment, information or complaint is issued or the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one sentenced to their custody."
The extent of the statute has been said to be "unambiguously plain" and the Supreme Court has emphasized that the object of the act is to dispose of untried charges against prison inmates and, to that effect, the statute "is to be applied as written". People v Woodruff, 414 Mich. 130, 136; 323 NW2d 923 (1982).
Although the Supreme Court has not addressed this issue in the context of the present factual situation, other panels of this Court have recently considered the applicability of the 180-day rule to parolees. In People v Wright, 128 Mich. App. 374; 340 NW2d 93 (1983), under facts substantially similar to those of the present case, this Court held that the filing of a parole hold did not trigger the running of the 180-day time period. Continuing, the Court stated that, until parole was revoked, a paroled prisoner who was being held in a local facility was not awaiting incarceration in a state prison by virtue of the parole hold. Thus, the 180-day rule was inapplicable and the dismissal of the criminal charges was improper.
A similar result was reached in People v Sanders, 130 Mich. App. 246; 343 NW2d 513 (1983). In that case, this Court examined the scope of the phrases "penal *660 institution" and "state prison" and determined that the 180-day rule only applies "where a person is assigned to a state correctional facility on pre-parole status". Although a parolee is technically under the legal custody and jurisdiction of the Department of Corrections, the parolee is free from the enclosures of the prison facility and, therefore, is not an inmate of a state penal institution or incarcerated for purposes of the 180-day rule.
We find the cases cited above to be dispositive. Keeping in mind that the object of the act is to dispose of untried charges against prison inmates, Woodruff, supra, we hold that defendant was not an inmate for purposes of the 180-day rule. Defendant was not incarcerated in a state prison nor under detention in a local facility awaiting incarceration in a state prison. Thus, the trial judge erroneously dismissed the charge pending against defendant.
Due to our resolution of the threshold question on the applicability of the statutory 180-day time period, we need not address the second issue raised by the prosecutor. We note, however, that defendant, by virtue of his status as a parolee, has not lost the right to avail himself of other means by which to secure a prompt disposition of any pending charges, such as the constitutional right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20.
Reversed and remanded for further proceedings.
R.M. MAHER, J. (concurring).
I concur in the result reached by the majority. The trial court incorrectly found that the prosecution had violated the 180-day rule. MCL 780.131 et seq.; MSA 28.969(1) et seq.; People v Schinzel (On Remand), 97 Mich. App. 508, 511; 296 NW2d 85 (1980), lv den 411 Mich. 982 (1981).
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617537/ | 132 Mich. App. 140 (1984)
347 N.W.2d 735
PEOPLE
v.
WILKI
Docket No. 66825.
Michigan Court of Appeals.
Decided February 7, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.
Lester O. Pollak, for defendant on appeal.
Before: R.M. MAHER, P.J., and D.E. HOLBROOK, JR., and P.J. MARUTIAK,[*] JJ.
PER CURIAM.
Defendant was charged with armed robbery, MCL 750.529; MSA 28.797, felony-firearm, MCL 750.227b; MSA 28.424(2), and in a supplemental information with being a third-felony offender, MCL 769.11; MSA 28.1083. A jury convicted him of armed robbery but was unable to reach a verdict on the felony-firearm count. After the trial, defendant pled guilty to the supplemental charge and the prosecutor agreed not to proceed further on the felony-firearm charge. Defendant was sentenced to from 10 to 30 years imprisonment and appealed as of right. This Court originally granted the prosecutor's motion to affirm. On August 20, 1982, the Supreme Court vacated this Court's order and remanded the case for plenary consideration of the issues raised, 414 Mich. 905 (1982).
*142 Defendant was convicted of the armed robbery of a party store clerk on the evening of February 2, 1980. The complainant testified that defendant, armed with a gun, came into the store and demanded money. Complainant gave the defendant approximately $20 in cash. After the defendant left, she called the police and gave them a description of the robber.
Some 10 to 15 minutes later, the police arrived at the store with defendant in a squad car. Complainant identified defendant as the robber.
This case requires us to again consider the circumstances under which the police may subject a suspect to an on-the-scene identification without counsel. Defendant argues that the procedure denied him his constitutional right to counsel and was unduly suggestive.
In Michigan, a defendant is generally entitled to have counsel present during an identification procedure. People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974). An exception is allowed where the police apprehend a suspect and return him for a prompt on-the-scene identification. People v Anderson, 389 Mich. 155, 187, fn 23; 205 NW2d 461 (1973). Such a procedure allows the police to know whom to arrest and assures the expeditious release of innocent suspects. It also allows the victim to confirm or deny the identification while his or her memory is fresh and accurate. People v Turner, 120 Mich. App. 23, 34-35; 328 NW2d 5 (1982); People v Purofoy, 116 Mich. App. 471, 480; 323 NW2d 446 (1982).
Several panels of this Court have allowed the police to conduct a prompt on-the-scene identification without regard to the circumstances in which the defendant was apprehended. See e.g., People v Coward, 111 Mich. App. 55, 63; 315 NW2d 144 *143 (1981); People v Tucker, 86 Mich. App. 608, 611; 273 NW2d 498 (1978), lv den 406 Mich. 964 (1979). This line of cases seems to be based on the Anderson, supra, decision which recognized the procedure in a footnote without setting any guidelines for its use.
In recognition of the inherent suggestiveness of on-the-scene identifications without counsel being present, a panel of this Court in People v Dixon, 85 Mich. App. 271; 271 NW2d 196 (1978), lv den 406 Mich. 906 (1979), held the procedure improper where the police have more than a mere suspicion that the defendant was involved in the crime. According to Dixon, the police in such cases may not return the defendant to the scene of the crime. Instead, they must permit defendant's counsel to be present.[1]
While we agree that a per se rule allowing on-the-scene identifications fails to consider the suggestive nature of such procedures and fails to protect a defendant's right to counsel, we find the Dixon "more than a mere suspicion" standard too restrictive.[2] We, therefore, agree with the middleground approach adopted in People v Turner, supra:
"Therefore, we would allow the police officers to conduct an on-the-scene identification without the presence of counsel at any time promptly after the crime, except in certain situations. First, we require counsel to be present where the police have very strong evidence *144 that the person stopped is the culprit. Strong evidence exists where the suspect has himself decreased any exculpatory motive, i.e., where he has confessed or presented the police with either highly distinctive evidence of the crime or a highly distinctive personal appearance." 120 Mich App 36-37.
The Turner approach has been adopted by other panels of this Court. See People v McCuaig, 126 Mich. App. 754; 338 NW2d 4 (1983); People v Fields, 125 Mich. App. 377; 336 NW2d 478 (1983); People v Raybon, 125 Mich. App. 295; 336 NW2d 782 (1983).
We recognize that the Turner standard will not always be an easy one to apply. In view of the purposes for on-the-scene identifications, we interpret the term "very strong evidence" to mean evidence such that the police, acting in good faith, have no reasonable necessity for confirming that the suspect they have apprehended is in fact the perpetrator. Applying this standard to the instant case, we are convinced that the on-the-scene identification was proper. A short time after the complainant's call to the police, an officer observed a man matching the general description given by complainant trotting down a street in the general vicinity of the store. The defendant was found shortly thereafter huddling in some bushes behind a garage. A search of the area produced $21 in cash in a nearby burning barrel. Defendant was placed in a squad car and transported back to the store.
Certainly, the police had reason to suspect defendant's involvement. However, the defendant neither matched a highly distinctive personal description nor was he found with highly distinctive evidence of the crime. In our opinion, the circumstances of defendant's apprehension did not constitute "very strong evidence" such that there was no *145 reasonable necessity to conduct an on-the-scene identification. We conclude that the procedure was proper and that defendant was not denied his right to counsel.
Defendant next contends that the identification procedure was unduly suggestive and should have been excluded. However, defendant's failure to move for suppression of the identification testimony in the trial court precludes appellate review of this issue. People v Moss, 397 Mich. 69, 70; 243 NW2d 254 (1976); People v King, 107 Mich. App. 208, 210; 309 NW2d 207 (1981), rev'd on other grounds 413 Mich. 939 (1982). Even were we to review this issue, we would find that the procedure was not unnecessarily suggestive or conducive to misidentification.
The remaining issues raised by defendant are without merit. Defendant was not denied effective assistance of counsel under the standard set forth in People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976). Counsel's decision not to request a corporeal line-up and not to move for suppression of the identification testimony were matters of trial strategy. The record reveals that counsel thoroughly cross-examined complainant on the identification question and argued suggestiveness to the jury. See People v Tucker, supra, p 611; People v Johnson, 59 Mich. App. 187; 229 NW2d 372 (1975).
The record discloses that the precise terms of the plea agreement were stated on the record and that defendant, defense counsel, and the prosecutor understood the terms of the agreement. There was full compliance with GCR 1963, 785.7(2).
Affirmed.
R.M. MAHER, P.J. (concurring).
I specially concur *146 to state that, after reevaluating the question of on-the-scene identifications, I have reconsidered my position in People v Dixon, 85 Mich. App. 271; 271 NW2d 196 (1978), lv den 406 Mich. 906 (1979), and adopt the position taken in People v Turner, 120 Mich. App. 23; 328 NW2d 5 (1982), lv den 417 Mich. 1064 (1983).
As the majority opinion states, panels of this Court have taken widely divergent positions on when a suspect is entitled to have counsel present at "prompt, `on-the-scene' corporeal identifications within minutes of the crime", People v Anderson, 389 Mich. 155, 187, fn 23; 205 NW2d 461 (1973). The positions have ranged from always permitting such identifications without counsel present (People v Coward, 111 Mich. App. 55; 315 NW2d 144 [1981]) to permitting them only if the police have no more than a "mere suspicion that the person in custody is wanted for the crime" (Dixon, supra). In Turner, supra, this Court took a middle position and held that counsel need be present only where the police have "very strong evidence" that the person apprehended is the criminal. While I now believe that the position in Turner is the most tenable position available to this Court, I am nevertheless troubled by the suggestiveness inherent in any on-the-scene identification and believe that this factor, and not the amount of evidence pointing to a particular suspect, should be the deciding criterion in determining whether or not the presence of counsel is required in an on-the-scene identification. Such identifications are generally one-on-one confrontations which occur almost immediately after the "victim" has suffered the trauma of a crime and in which the suspect is personally brought before the victim by a police officer. These circumstances must almost inevitably *147 lead to a high degree of suggestiveness. See Russell v United States, 133 US App DC 77; 408 F2d 1280 (1969).
However, in People v Anderson, supra, the Supreme Court apparently determined that this suggestiveness did not outweigh the benefits of such prompt identifications without counsel present. See 389 Mich. 187, fn 23. This Court is therefore precluded from holding that, as a matter of law, counsel must always be present at such procedures. Given the Supreme Court's statement in Anderson, I believe that the position taken in Turner presents the best balance between the rights of suspects and the need for practical standards in police investigations. I therefore join the majority in adopting and applying the Turner position in this case.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Compare Judge MAHER'S dissent in People v Purofoy, 116 Mich. App. 471, 486; 323 NW2d 446 (1982).
[2] Enforcement of the People v Dixon, 85 Mich. App. 271; 271 NW2d 196 (1978), lv den 406 Mich. 906 (1979), standard would effectively eliminate use of on-the-scene identifications. We can think of no situation in which the police would have sufficient probable cause to apprehend a suspect and return him to the scene while at the same time having no more than a mere suspicion of his involvement in the crime. See People v Raybon, 125 Mich. App. 295; 336 NW2d 782 (1983). | 01-03-2023 | 10-30-2013 |
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