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https://www.courtlistener.com/api/rest/v3/opinions/1617578/ | 347 N.W.2d 347 (1984)
In the Matter of the ESTATE OF Jesse HASTINGS, Deceased.
Lucille LENIUS, et al., Plaintiff and Appellee,
v.
Lillian BRADNER, Defendant and Appellant.
No. 14105.
Supreme Court of South Dakota.
Argued October 24, 1983.
Decided April 18, 1984.
*348 A. William Spiry of Farrar & Spiry, Britton, for plaintiff and appellee.
C.W. Hyde, B. Elizabeth Ganje, Aberdeen, for defendant and appellant.
WOLLMAN, Justice.
This is an appeal from a judgment denying probate to three wills of Jesse Hastings (Jesse). We affirm.
Jesse was eighty-five years of age when he died on May 29, 1982. He was survived by two sisters, Lillian Bradner and Lucille Lenius, and several nieces and nephews. Jesse had executed three wills dated March 25, 1963, January 19, 1976, and June 1, 1981. Lillian, proponent, was named the primary beneficiary in the three wills. She petitioned the circuit court to admit Jesse's 1981 will to probate. Lucille and several nieces and nephews filed an objection on the ground that Jesse was of unsound mind and was under undue influence at the time he executed the will.
Jesse, who had a seventh grade education, had lived on a farm with two bachelor brothers. One of the brothers, Joe, had a mental problem that eventually required his being placed in an institution. Jesse cared for Joe in addition to helping the other brother, Charley, with farm work. Charley was the only one who handled the business affairs.
Charley died on March 6, 1963. There then developed a family rift concerning who should care for Jesse, who moved in with Lillian. On March 30, 1963, Lucille executed a petition alleging that Jesse was incompetent to handle his financial affairs and praying for the appointment of a guardian over his estate. Letters of guardianship over Jesse's estate were issued to the First National Bank of Aberdeen on April 13, 1963. On December 13, 1978, Jesse was admitted to a nursing home in Aberdeen, South Dakota, from which he was released on May 17, 1981. From that time until the time of his death he stayed with Lillian or one of her daughters.
On a Sunday morning in April of 1963, Jesse's brother Sam called attorney L.R. Gustafson in Britton, South Dakota, about bringing Jesse to Mr. Gustafson's office for the purpose of making a will. Mr. Gustafson acceded to this request and met in his office later that morning with Sam and Jesse (according to Mr. Gustafson's recollection, Sam had picked Jesse up on the road inasmuch as he did not have direct access to him). Mr. Gustafson, who was aware of the guardianship of Jesse's estate, made inquiries of Jesse concerning a guardianship over his person. Mr. Gustafson then asked Jesse some questions about his property for the purpose of preparing a will. In Mr. Gustafson's words:
I then asked him how many sections of land he had, and I got no response. I then asked him how many acres he had. I got no response. I asked him how many quarters of land he had. I got no response. I asked him where his land was from his home buildings that he was living in. I got no response.
When Mr. Gustafson questioned Jesse regarding his relatives, "I again could not get direct responses from him, but he would smile and turn to Sam." After attempting to converse with Jesse for approximately one-half hour regarding these and other matters, Mr. Gustafson concluded that he would not prepare a will for Jesse because the answers that Jesse had given him had not satisfied him that Jesse knew what property he had and what he wanted to do with it. In a word, Mr. Gustafson formed the opinion that Jesse was not of sound mind at that time.[*]
*349 Elmer Thurow, the attorney who drafted Jesse's three wills, had no recollection of the signing of the March 25, 1963, will. He recalled the signing of the 1976 will, testifying that Jesse "waswell, just another person who wanted to sign a Will, dressed in ordinary neat clothes, and talked intelligently as far as I could tell." Mr. Thurow also testified that although he had not read the entire 1976 will to Jesse, he had either read or explained to Jesse the paragraph stating Jesse's intention to leave everything to Lillian. Mr. Thurow testified that Jesse indicated that he understood that provision of the will and desired to leave everything to Lillian because she had always done so much for him, or words to that effect.
The 1981 will contained a section identical to one in the 1976 will stating that Jesse had a living brother. Jesse, however, did not have a living brother in 1981. Mr. Thurow testified that he may have copied this section from the former will and that its inclusion in the 1981 will may have been his fault.
On December 27, 1978, Mr. Thurow, who was unaware of the 1963 guardianship, executed a petition on behalf of Lillian requesting that the circuit court appoint her as guardian of Jesse's person and estate. An order so appointing Lillian was entered on December 29, 1978.
Dr. A.C. Vogele, who had treated Jesse since August of 1963, testified by deposition that he did not remember noting any mental problems in Jesse prior to 1972. On June 5, 1972, Jesse was hospitalized in Aberdeen because he was becoming contentious and confused. At the time of his admission Jesse was not oriented as to time and place. Dr. Vogele's diagnosis was "Organic Brain Syndrome, Senile, associated with Arteriosclerosis." Jesse was discharged on June 8, 1972, and sent home with Lillian after showing marked improvement. He was readmitted to the hospital on October 17, 1972, again disoriented as to time and place and unable to respond to normal stimuli. The diagnosis was "chronic brain syndrome with confusional states." Jesse was discharged from the hospital on October 30, 1972. Jesse was again admitted to the hospital on December 8, 1978, because of sleeplessness and lack of control of his behavior at home. He was discharged on December 13, 1978, and admitted that same day to the nursing home referred to above. According to Dr. Vogele, Jesse was definitely confused and disoriented when he was placed in the nursing home but later recovered to his normal condition and appeared to know what he was doing and to know his family and the doctor.
The psychologist who examined Jesse during his hospitalizations in 1972 estimated that Jesse's intellectual level was within average as opposed to retarded ranges. He also testified that at the time of discharge from two 1972 hospitalizations, Jesse "was in good contact with reality, he knew who he was, where he was, what he was doing." The psychologist also testified, however, that Jesse had indicated that he owned cattle. The cattle had in fact been sold in 1963. The psychologist testified that at the time of his last visit with Jesse, December 8, 1972, Jesse's major difficulty was memory function as a result of the organic brain syndrome.
The director of nursing at the nursing home in which Jesse resided testified that at the time of his discharge from the nursing home Jesse was unaware of time and place and was mentally disoriented. In her opinion, Jesse was not of sound mind at that time.
Dan Fritz, an Aberdeen attorney who had served as a trust officer with the First National Bank, met with Jesse some half dozen times during the period from late 1966 to 1970 in connection with the guardianship of Jesse's estate. Mr. Fritz testified that Jesse was always accompanied by his brother Cyril and that he, Mr. Fritz, "only communicated through Cyril. I never communicated *350 about business through Jess. You couldn't."
There was substantial testimony at trial that Jesse never called on a telephone, voted, possessed a driver's license or drove an automobile, and that he talked very little, responding simply "yes" or "no." Jesse apparently could operate older, simpler farm tractors but could not shift gears. He could perform simple farm tasks such as feeding livestock with a pitchfork and repairing fences but could not do more complex tasks such as seeding or planting. There was testimony that Jesse could not read or write, could not count money, could be bossed around by anyone, and did not know the amount of property he owned. Other witnesses testified that Jesse had been of sound mind.
The validity of all three wills was tried in the same proceeding, which consisted of seven days of testimony. At the conclusion of the final day of testimony, the trial court delivered a summary of its findings of fact from the bench. Formal findings of fact and conclusions of law were duly entered pursuant to SDCL 15-6-52(a). The court then entered judgment denying probate of all three wills based upon its conclusion that Jesse lacked testamentary capacity but was not under undue influence at the time he executed the wills.
As the trial court quite correctly observed in announcing a summary of findings from the bench, the facts regarding Jesse's inability to read and write, to carry on conversations, to count money, and other related personal skills, had a bearing on his intelligence but were not the factors that determined his testamentary capacity. Rather, the trial court looked to the evidence concerning Jesse's understanding of the property he owned and the persons who might receive this property. As indicated above, the trial court found that Jesse did not know the objects of his bounty or the extent of his property and therefore concluded that Jesse did not have testamentary capacity at the time he executed the three wills.
All persons over the age of eighteen years and of sound mind may execute a will. SDCL 29-2-3. The proponents of a will bear the burden of establishing testamentary capacity of the testator at the time the will was executed. In re Estate of Melcher, 89 S.D. 253, 232 N.W.2d 442 (1975).
It has been the consistent holding of this court that "for the purpose of making a will, one has a sound mind if able, without prompting, to comprehend the nature and extent of his property, the persons who are the natural objects of his bounty and the disposition that he desires to make of such property." Estate of Podgursky, 271 N.W.2d 52, 55 (S.D.1978). See also In re Nelson's Estate, 330 N.W.2d 151 (S.D. 1983); Jones v. S.D. Children's Home Soc., 90 S.D. 126, 238 N.W.2d 677 (1976); In re Estate of Melcher, supra; In re Estate of Williams, 88 S.D. 55, 215 N.W.2d 489 (1974); Peterson v. Imbsen, 46 S.D. 540, 194 N.W. 842 (1923); In re Corson's Estate, 29 S.D. 14, 135 N.W. 666 (1912). For the purpose of making a will, soundness of mind does not necessarily mean "that degree of intellectual vigor which one has in youth or that is usually enjoyed by one in perfect health." Peterson v. Imbsen, supra, 46 S.D. at 546, 194 N.W. at 844.
Likewise, mere physical weakness is not determinative of the soundness of mind. Estate of Nelson, supra; In re Estate of Anders, 88 S.D. 631, 226 N.W.2d 170 (1975).
One is not incompetent to make a will because of a limited education and a restricted ability to read and write. See, e.g., In re Estate of Fleege, 89 S.D. 137, 230 N.W.2d 230 (1975). Moreover, "[i]t is not necessary that one should have sufficient capacity to make contracts and do business generally nor to engage in complex and intricate business matters ..." Peterson v. Imbsen, supra, 46 S.D. at 546, 194 N.W. at 844. The fact that a guardian was appointed over a testator's estate does not of itself invalidate a will because of a lack of testamentary capacity. Nor does *351 the fact that a decedent suffered from chronic brain syndrome automatically preclude him from having had testamentary capacity. See, e.g., In re Estate of Walsh, 89 S.D. 342, 232 N.W.2d 850 (1975); In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970).
In reviewing a circuit court's findings concerning testamentary capacity, we must apply the commands of SDCL 15-6-52(a) that we are not to set aside a trial court's findings of fact unless they are clearly erroneous and that we are to give due regard to the trial court's opportunity to judge the credibility of witnesses. As we stated in In re Estate of Hobelsberger, supra, 85 S.D. at 289, 181 N.W.2d at 459:
In applying the clearly erroneous standard we must bear in mind that our function is not to decide factual issues de novo. The question for the appellate court is not whether it could have made the same findings the trial court did, but whether on the entire evidence it is left with a definite and firm conviction that a mistake has been committed. Zenith Radio Corporation v. Hazeltine Research Inc., 395 U.S. 100, 89 S. Ct. 1562, 23 L. Ed. 2d 129.
Our review of the record satisfies us that the trial court correctly applied the above-cited principles of law and that the court did not err in finding that Jesse lacked testamentary capacity.
To conclude, from all accounts Jesse Hastings was a kind, hard working, peaceful, unassuming soul who performed those tasks that were within the capacity that nature bestowed upon him. That the trial court found that he did not possess the comprehension of material and family matters that the law requires as a prerequisite to executing a will is no depreciation of Jesse as a person. That we may have found the facts differently had we heard the testimony is no warrant for us to substitute our judgment for the trial court's carefully considered findings.
The judgment is affirmed.
DUNN, MORGAN and HENDERSON, JJ., and McKEEVER, Circuit Judge, concur.
McKEEVER, Circuit Judge, sitting for FOSHEIM, C.J., disqualified.
NOTES
[*] Although Mr. Gustafson prepared a petition for Sam requesting the appointment of a guardian over Jesse's person, apparently no formal order was ever entered in response thereto. The minutes of the Marshall County Clerk of Courts indicate that Jesse appeared before Judge Nelson in the county court of Marshall County on May 27, 1963, along with Lillian and Cyril Hastings and attorney William J. Holland, who resisted the petition. The minutes indicate that after visting with and questioning Jesse, Judge Nelson continued the hearing until June 17, 1963. The minutes conclude with the entry that: "The Court, at this time, is of the opinion that Jesse does not need guardian of his person." There is no other exhibit in the settled record indicating any formal action by the county court subsequent to May 27, 1963, with respect to this petition. Mr. Gustafson testified that he did not pursue the matter further. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617584/ | 347 N.W.2d 566 (1984)
August B. PANKOW, Jr., Plaintiff and Appellee,
v.
Joan E. PANKOW, Defendant and Appellant.
Civ. No. 10514.
Supreme Court of North Dakota.
April 24, 1984.
*567 Johnson, Milloy, Johnson & Stokes, Wahpeton, for plaintiff and appellee; argued by A.W. Stokes, Wahpeton.
Miller, Norman & Kenney, Moorhead, Minn., for defendant and appellant; argued by Patrick B. Kenney, Moorhead, Minn.
PEDERSON, Justice.
Joan Pankow appeals from a judgment of the District Court of Richland County. We affirm in part, reverse in part, and remand for further proceedings.
Joan and August Pankow were married in 1959. They lived on the Pankow family farm with August's parents, where August farmed with his father and Joan assisted August's mother with the household chores. In 1965, August's parents conveyed 320 acres to him. August and Joan constructed a home on the property and operated the 320 acres as a separate farming unit. Joan, in addition to raising four *568 children and doing household duties, actively assisted August with the outdoor farm duties.
August initiated this divorce action in 1981, and Joan counterclaimed for a divorce. The court awarded both parties a divorce on the grounds of irreconcilable differences and awarded custody of the two minor children to Joan. The court ordered August to pay child support of $150 per month until the youngest child reached the age of 18.
The court determined that the net worth of the parties' real estate, farm machinery, grain on hand, and livestock was $343,890.50. The value of the parties' other property, consisting mainly of personal effects, was minimal. The court awarded the real estate, farm machinery, grain on hand, and livestock to August. As her share of the property division, Joan was awarded monthly payments of $575 for the next 25 years. Joan appeals from the judgment, alleging that the property division is inequitable and that the amount of child support is inadequate.
Section 14-05-24, NDCC, requires the trial court to "make such equitable distribution of the real and personal property of the parties as may seem just and proper." No set rules exist for distributing the property of the parties to a marriage, but this Court's decisions have established certain guidelines, known as the Ruff-Fischer[1] guidelines, to assist the trial court in its decision. Winter v. Winter, 338 N.W.2d 819, 821 (N.D.1983). The equitableness of the property division is treated as a finding of fact which will not be set aside on appeal unless clearly erroneous. Rule 52(a), NDRCivP; Clark v. Clark, 331 N.W.2d 277, 278 (N.D.1983).
The trial court has failed to place a present-day value on the payments awarded to Joan as her share of the marital property. Joan contends that the $575 monthly payments have a present value of only $68,000, assuming a nine percent interest rate, and that August is therefore receiving four times more property than Joan in the distribution.
We have previously indicated that the trial court must determine the net worth of the parties' assets before applying the Ruff-Fischer guidelines if sufficient evidence has been admitted to make such a determination. VanRosendale v. VanRosendale, 333 N.W.2d 790, 791 (N.D.1983). When the court fails to make a determination of the net value of the parties' assets, there is no foundation upon which the court may base an equitable distribution; "it is not possible to make an equitable distribution of anything until a determination has been made as to what it is that is being distributed." Williams v. Williams, 302 N.W.2d 754, 760 (N.D.1981). Similarly, it is extremely difficult for this Court to determine whether or not an equitable division has been made when the trial court fails to place a value upon property distributed to one of the parties. See Glass v. Glass, 344 N.W.2d 677, 678 (N.D.1984).
In Tuff v. Tuff 333 N.W.2d 421, 424 (N.D.1983), we held that periodic cash payments without interest awarded as part of a property distribution must be discounted in determining whether or not the distribution is equitable:
"If we were to assume that a lumpsum award of $200,000 to Lore was equitable, we would, nevertheless, be concerned about the manner of payment. The award was obviously a form of property division rather than spousal support because the trial court specifically indicated it was not awarding alimony to either party. See Urlaub [v. Urlaub, 325 N.W.2d 234 (N.D.1982) ], supra; Eberhart v. Eberhart, 301 N.W.2d 137 (N.D.1981). However, the award contains none of the income-producing assets of the parties. Those were awarded to Dennis. Only $50,000 of the $200,000 was to be paid immediately and Lore *569 therefore does not have the total sum to invest in order that she might obtain interest thereon, thus converting the payment into income-producing property. Rather, $150,000 of the sum is payable in installments of $15,000 per year over a period of ten years with no interest. It thus appears to us that the sum would need to be discounted in determining whether or not, at the time of the decree, Lore received an equitable distribution of the property. See Sanford v. Sanford, 301 N.W.2d 118, (N.D.1981)."
While we take notice of the fact that $172,500 paid in 300 monthly payments has a present value far less than $172,500, we will not usurp the power of the trial court to find the facts. We therefore remand the case to the district court for a reexamination of the property distribution. On remand, the court is to determine the present value of the monthly payments awarded to Joan and to reassess the distribution in light of this value. The district court should also take into consideration the fact that, if historical trends continue, the value of the land will substantially increase over the 25-year period, whereas the buying power of Joan's $575 monthly installments will substantially decrease. It is likely that the current disparity between the values of the property awarded to August and Joan may grow even wider in the future, and the district court should consider this fact when it reviews the property division.
Joan also asserts that the award of $150 per month in child support was inadequate. Because we are remanding for a reassessment of the property division, a review by this Court of the amount of child support would be premature at this point. Any changes made by the court in the property distribution may affect the adequacy of the child support, and may necessitate changes in the amount of child support.
The judgment of the district court is affirmed with respect to the decree of divorce. That portion of the judgment addressing distribution of property and child support is reversed and the case is remanded for further proceedings consistent with this opinion. Costs on appeal are awarded to Joan.
ERICKSTAD, C.J., and GIERKE, SAND and VANDE WALLE, JJ., concur.
NOTES
[1] Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D. 1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4204302/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA : No. 109 MM 2017
:
:
v. :
:
:
CORNELL ANTHONY COLE :
:
:
PETITION OF: KRISTEN LEIGH :
WEISENBERGER, ESQUIRE :
ORDER
PER CURIAM
AND NOW, this 18th day of September, 2017, in consideration of the Application
to Withdraw as Counsel, this matter is REMANDED to the Court of Common Pleas of
Dauphin County for that court to determine whether Petitioner’s current counsel should
be granted leave to withdraw. See Pa.R.Crim.P. 120(B).
If current counsel is permitted to withdraw, the court is DIRECTED to resolve any
issues relative to Petitioner being appointed counsel or granted leave to proceed pro se.
The Court of Common Pleas of Dauphin County is DIRECTED to enter its order
regarding this remand within 45 days and to promptly notify this Court of its
determination. | 01-03-2023 | 09-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1617616/ | 190 S.W.3d 821 (2006)
Grover C. GIBSON, Appellant,
v.
Lehoma Joyce GIBSON, Appellee.
No. 2-04-106-CV.
Court of Appeals of Texas, Fort Worth.
March 30, 2006.
*822 Robert D. Hoover and Earl R. Waddell, III, Fort Worth, for Appellant.
The King Firm, Heather L. King, Fort Worth, for Appellee.
Panel A: CAYCE, C.J.; HOLMAN and GARDNER, JJ.
OPINION
JOHN CAYCE, Chief Justice.
This is an appeal from the trial court's property division in a divorce proceeding. In two points, appellant Grover C. Gibson contends that the trial court erroneously awarded appellee Lehoma Joyce Gibson property owned by a limited partnership in which appellant held a community property partnership interest and that the trial court denied him due course of law by delaying the final division of the marital estate until two years and eight months after trial. Because we conclude that the trial court's award of the partnership property to appellee constituted reversible error, we reverse and remand in part and affirm in part.
In his first point, appellant contends that the trial court abused its discretion by awarding appellee property owned by GCG Partners, L.P., a limited partnership that appellant and his son Glen formed for investment purposes. The evidence at trial showed that appellant owned a fifty-percent community property interest in the limited partnership[1] and Glen owned the other fifty-percent interest. The partnership's assets consisted mainly of real property worth approximately $373,000 and $15,000 in cash and securities. In its final decree, the trial court awarded the following to appellee:
With respect to the limited partnerships [sic] known as GCG Partners, L.L.P. [sic], [appellee] is awarded all of the community interest including the partnership interest in the real estate located at 5900 Lovell, Fort Worth, Texas, including but not limited to the note payable dated December 20, 1993, in the amount of $160,000.00 payable to [appellant] to the parties from GCG, all furniture, fixtures, machinery, equipment, inventory, cash, receivables, accounts, goods, and supplies; all personal property used in connection with the operation of the business; and all rights and privileges, past, present, or future, arising out of or in connection with the operation of GCG Partners. [Emphasis supplied.]
Thus, the trial court's order purported to award appellee not only appellant's community property partnership interest in GCG Partners, but also an interest in specific partnership property. The trial court also ordered appellant to vacate the building at 5900 Lovell on or before January 9, 2004.
The limited partnership agreement of GCG Partners provides that "[a]ll property owned by the [p]artnership ... shall be deemed to be owned by the [p]artnership as an entity; and no [p]artner, individually, shall have ownership of such property." In addition, the Texas Revised Limited Partnership Act (TRLPA) provides that a partner has no interest in specific limited *823 partnership property.[2] Under both the limited partnership agreement and TRLPA, the community interest in GCG Partners was personal property.[3]
A trial court may not award specific partnership assets to a nonpartner spouse.[4] Only a partner's partnership interestthe right to receive a share of the profits and surpluses from the partnershipis subject to division in a divorce proceeding.[5] Accordingly, the trial court abused its discretion by awarding GCG's partnership property to appellee.
An error of law that causes the rendition of an improper judgment is reversible error.[6] Divesting a partnership that is not a party to a divorce proceeding of partnership property and awarding that property to a nonpartner spouse is reversible error.[7]
Because the trial court committed reversible error when it purported to award GCG's partnership property to appellee, we must reverse the trial court's judgment as to the property division and remand the case to the trial court to redivide the parties' community estate.[8] We affirm the portion of the judgment granting the parties a divorce.
NOTES
[1] Appellant's interest consisted of a one-percent interest as a general partner and a forty-nine percent interest as a limited partner.
[2] TEX.REV.CIV. STAT. ANN. art. 6132a-1, § 7.01 (Vernon Supp.2005).
[3] Id.
[4] See Lifshutz v. Lifshutz, 61 S.W.3d 511, 518 (Tex.App.-San Antonio 2001, pet. denied).
[5] Young v. Young, 168 S.W.3d 276, 287 (Tex. App.-Dallas 2005, no pet.).
[6] See TEX.R.APP. P. 44.1(a).
[7] See Siefkas v. Siefkas, 902 S.W.2d 72, 79-80 (Tex.App.-El Paso 1995, no writ) (holding that trial court reversibly erred by dividing property that may have been owned by appellant's professional corporation, which was a separate legal entity and not a party to the proceedings); cf. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex.1977) (holding that divesting a spouse of separate property is reversible error); Smith v. Smith, 22 S.W.3d 140, 147 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (same). On rehearing, appellant argues for the first time that the trial court's erroneous order awarding the partnership property to appellee is void. Appellant cites no legal authority for this argument. See TEX.R.APP. P. 38.1(h) (requiring appellate arguments to be supported by legal authority). A trial court's judgment is void only when the court rendering the judgment had no jurisdiction over the parties, no jurisdiction over the subject matter, no jurisdiction to render the judgment, or no capacity to act as a court. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990). A judgment based on an erroneous holding of substantive law, including the award of partnership property to a nonpartner spouse in a divorce proceeding, merely renders the judgment voidable, not void. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003).
[8] In light of our holding, we need not consider appellant's second point, in which he complains that the trial court denied him due process of law by delaying the final division of the community estate for two years and eight months after trial. See TEX.R.APP. P. 47.1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617610/ | 190 S.W.3d 853 (2006)
In re Billy Ray RISLEY, Relator.
No. 2-06-017-CV.
Court of Appeals of Texas, Fort Worth.
April 3, 2006.
*854 Billy Ray Risley, Abilene, pro se.
Tim Curry, Criminal District Attorney, Charles M. Mallin, Steven W. Conder, Assistant Criminal District Attorneys, Fort Worth, for the State.
PANEL D: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
OPINION
TERRIE LIVINGSTON, Justice.
Relator Billy Ray Risley has filed a petition for writ of mandamus asking this court to order the trial court to pronounce sentence upon relator in relator's presence in accordance with article 42.03, section 1(a) of the code of criminal procedure. TEX.CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (Vernon Supp.2005). Because we conclude that relator is entitled to the relief he requests in his petition, we conditionally grant mandamus relief.
Relator filed a notice of appeal in this court on September 1, 2005 from his June 7, 1990 conviction for possession of a controlled substance. That appeal, which is currently pending in this court, is docketed under a separate cause number, Number 02-05-00354-CR. On this court's own motion, we questioned whether we had jurisdiction over the appeal; relator responded that we did have jurisdiction because he had been sentenced in absentia[1] and the trial court had never pronounced sentence in relator's presence as required by article 42.03, section 1(a) of the code of criminal procedure. Id.[2] We determined that we had jurisdiction over the appeal[3] and on December 13, 2005, issued an abatement order in which we ordered the trial court to "impose sentence on [relator] in accordance with article 42.03, section 1(a) of the code of criminal procedure."
*855 The State objected to the abatement order and requested that we withdraw it, on the ground that relator's conviction was final on June 7, 1990, when he was sentenced in absentia; therefore, his notice of appeal was due in July 1990. See TEX. R.APP. P. 26.2(a)(1), 26.3. According to the State, because it is too late for relator to file a notice of appeal, his only remedy is a postconviction writ of habeas corpus. See TEX.CODE CRIM. PROC. ANN. art. 11.07 (Vernon 2005).[4]
After reviewing the issue further, we withdrew the abatement order in the direct appeal and issued an order concluding that relator's appeal had been prematurely filed and that our jurisdiction had not yet been invoked because relator had not yet been sentenced in accordance with article 42.03, section 1(a). Relator then filed a nunc pro tunc motion in the trial court asking the trial court to sentence him in accordance with article 42.03, section 1(a).[5] In response to inquiries from our clerk's office, the trial court clerk confirmed that relator's nunc pro tunc motion was presented to the trial court and that the trial court noted to file the motion but not to take any action on it.[6] The trial court still has not ruled on the motion, nor has it pronounced sentence on relator under article 42.03, section 1(a). In light of this court's previous orders in the direct appeal, the trial court's refusal to rule on the motion is a denial of the relief relator requests and is entitled to: to have the trial court pronounce his sentence in his presence.
To obtain mandamus relief in criminal law matters in the courts of appeals, a relator must establish that (1) the act he seeks to compel is ministerial, rather than discretionary in nature, or that the trial court clearly abused its discretion, and (2) no other adequate remedy at law is available. See Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 586 & n. 5 (Tex.Crim.App.1993) (orig. proceeding); Dickens v. Second Court of Appeals, 727 S.W.2d 542, 548-50 (Tex.Crim.App.1987) (orig. proceeding). We already addressed the merits of this issue in our abatement order and our order withdrawing the abatement order in the direct appeal; in those orders, we held that the time for filing a notice of appeal runsnot from the date a defendant was sentenced in absentiabut from the date the trial court pronounces sentence upon a defendant in the defendant's presence in accordance with article 42.03, section 1(a).[7] We hold that *856 the trial court has abused its discretion by refusing to sentence relator in accordance with the mandates of article 42.03, section 1(a).[8] Moreover, because we have previously concluded that we do not have jurisdiction over relator's notice of appeal in cause number 02-05-00354-CR until the trial court has properly pronounced sentence, we further conclude that relator does not have an adequate remedy by appeal.[9] Accordingly, we hold that relator is entitled to mandamus relief.
We conditionally grant the writ of mandamus and order the trial court to pronounce sentence upon relator in his presence in accordance with article 42.03, section 1(a) of the code of criminal procedure. A writ of mandamus will issue only if the trial court fails to comply with these instructions.
NOTES
[1] Relator failed to appear for trial. The judgment shows that the jury found him guilty in absentia and assessed his punishment in absentia, and the trial court's docket sheet specifically states that the trial court pronounced relator's sentence in absentia. Relator apparently fled the state and was not captured until 1994. The judgment shows that relator's sentence was imposed on June 7, 1990 but that it did not commence until August 24, 1994.
[2] Section 42.03, section 1(a) requires the trial court to pronounce sentence in the defendant's presence in a felony case. Id. A felony defendant may not waive the right to be present at sentencing. See Casias v. State, 503 S.W.2d 262, 264 (Tex.Crim.App.1973). Thus, relator cannot be deemed to have waived the requirement of article 42.03, section 1(a) by voluntarily absenting himself from trial.
[3] In its response to relator's petition, the State contends that "to obtain its jurisdiction, [this] Court was compelled to answer the relator's question on its merits; . . . Put simply,. . . the cart of substance [has been placed] before the jurisdictional horse." However, a court of appeals is required to determine its own jurisdiction. Ex parte Shumake, 953 S.W.2d 842, 844 (Tex.App.-Austin 1997, no pet.). As we have previously determined in our January 4 order in cause number 02-05-00354-CR, whether relator has been properly sentenced is determinative of this court's jurisdiction.
[4] In its objection and its response to this petition, the State appears to concede that relator has never been properly sentenced under article 42.03, section 1(a). The State has never asserted that relator has been so sentenced, nor has it brought forward any evidence showing that the trial court properly sentenced relator after he was captured and returned to Texas.
[5] We note that the current sitting judge of criminal district court number three is not the same judge who heard relator's case and sentenced him in absentia in 1990.
[6] Compare TEX.R.APP. P. 23.1 (stating that "Unless . . . the defendant has appealed, a failure to render judgment and pronounce sentence may be corrected at any time by the court's doing so"), with Ware v. State, 62 S.W.3d 344, 353-54 (Tex.App.-Fort Worth 2001, pet. ref'd) (concluding that trial court could enter nunc pro tunc judgment after notice of appeal filed but before appellate record filed).
[7] See Pruitt v. State, 737 S.W.2d 622, 622-23 (Tex.App.-Fort Worth 1987, pet. ref'd); Williams v. State, No. 05-05-00182-CR, 2005 WL 2841259, at *2-3 (Tex.App.-Dallas Oct.31, 2005, no pet.) (not designated for publication); Proctor v. State, No. C14-90-00702-CR, 1991 WL 114488, at *1 (Tex.App.-Houston [14th Dist.] June 27, 1991, no pet.) (op. on reh'g) (not designated for publication); see also Gray v. State, 107 Tex. Crim. 351, 296 S.W. 294, 294-95 (App.1927) (exercising jurisdiction over and affirming case in which trial court assessed punishment in 1915 but, because of appellant's escape, did not sentence him until 1927 when he was captured); Small v. State, 38 S.W. 798, 799 (Tex.Crim. App.1897) (stating that an improperly pronounced sentence is akin to no pronouncement of sentence at all); Papakostas v. State, 145 S.W.3d 723, 726-27 (Tex.App.-Corpus Christi 2004, no pet.) (exercising jurisdiction over and affirming case in which trial court assessed punishment on defendant in absentia in 1987 but did not pronounce sentence until 2002; therefore, appeal was taken after pronouncement of sentence).
[8] We add two additional observations. First, if the State's position were correctthat relator's sentence was final on the day he was sentenced in absentia and may only be challenged by an 11.07 writrelator's sentence would have begun to run even though relator had escaped from custody, an absurd result. See TEX.CODE CRIM. PROC. ANN. art. 42.09, § 1 ("The defendant's sentence begins to run on the day it is pronounced. . . ."); State v. Aguilera, 165 S.W.3d 695, 697 (Tex.Crim.App. 2005). Additionally, because relator is entitled to credit on his sentence for time served before the proper pronouncement of his sentence, see TEX.CODE CRIM. PROC. ANN. art. 42.03, § 2(a), pronouncing his sentence at this time will not affect his total time served.
[9] The State contends that relator has an adequate remedy by seeking an out-of-time appeal under article 11.07. But article 11.07 relief is not available to relator until we have disposed of his appeal. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App.2000). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617532/ | 132 Mich. App. 485 (1984)
347 N.W.2d 752
LOVELY
v.
DIERKES
Docket No. 67776.
Michigan Court of Appeals.
Decided March 5, 1984.
Rappleye, Wilkins & Arcaro (by Viola A. Kaminski), for plaintiff.
*488 Curtis, Davidson & Curtis, P.C. (by Ronald J. Fabian), for defendants.
Before: DANHOF, C.J., and BRONSON and W.R. PETERSON,[*] JJ.
DANHOF, C.J.
Plaintiff herein filed a complaint against defendants alleging breach of an employment contract. Plaintiff alleged that he had two jobs in Ann Arbor, Michigan, providing him with a net average income of $600 per week, which he quit in order to work for defendant Real Food Company. Plaintiff's complaint states that defendant Dierkes promised plaintiff a three year employment contract, a salary of $400 per week, and a percentage interest in defendant corporation that would increase with each year of employment. The agreement also provided that plaintiff would not be discharged without good cause. Plaintiff relocated his family to Jackson, Michigan, in reliance upon defendant Dierkes' promise. While performing under the agreement, plaintiff requested several times that defendant reduce the contract to writing. Defendant allegedly assured plaintiff that a writing was forthcoming. After two months of employment, plaintiff was discharged. Defendants' motion for summary judgment pursuant to GCR 1963, 117.2(1) was granted by the trial court, which found a violation of the statute of frauds. MCL 566.132; MSA 26.922. Plaintiff presently appeals as of right.
Plaintiff alleges on appeal that the trial court erred by granting defendants' motion for summary judgment, because defendants should have been equitably estopped from pleading the statute of frauds as a defense to plaintiff's complaint. We *489 agree and reverse the trial court's grant of summary judgment to defendants.
The Michigan statute of frauds, MCL 566.132; MSA 26.922, provides in pertinent part:
"In the following cases an agreement, contract or promise shall be void, unless that agreement, contract, or promise, or a note or memorandum thereof is in writing and signed by the party to be charged therewith, or by a person authorized by him:
"(a) An agreement that, by its terms, is not to be performed within 1 year from the making thereof."
Since plaintiff's alleged contract for employment with defendant was for three years, the above-quoted statute requires that the contract be in writing to be enforceable.
Under certain circumstances, where it would be inequitable to apply the statute of frauds, a party may be estopped from pleading the statute of frauds as a defense. Promissory estoppel arises where the following elements are present:
"(1) a promise, (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee, (3) which in fact produced reliance or forbearance of that nature, (4) in circumstances such that the promise must be enforced if injustice is to be avoided." McMath v Ford Motor Co, 77 Mich. App. 721, 725; 259 NW2d 140 (1977).
We find that plaintiff has sufficiently alleged all of the elements of promissory estoppel. If the evidence at trial supports plaintiff's allegations, the reliance by plaintiff on defendants' promise would be sufficient to estop defendants from raising the statute of frauds as a defense to plaintiff's action.
Plaintiff here alleged a promise by defendants to *490 employ plaintiff for three years at a salary of $400 per week, with an interest in defendant corporation, such interest to increase with each year of employment. This promise was definite and clear, as is required to support an estoppel. McMath, supra. Defendants' promise to employ plaintiff was for a specific period, three years, at a fixed sum, $400 per week, and included additional compensation in the form of an interest in the corporation, which was to increase with time. This promise does not suffer from the same indefiniteness as the promise in McMath, relied upon by defendants. In McMath, plaintiff alleged that he resigned his rank of Brigadier General in the Air National Guard because of assurances from defendant that he need not worry about the income he would lose by leaving the Guard because defendant would take care of him and he would have no future economic worries. The promise here was much more specific, and was apparently intended to induce plaintiff to leave his current employment and work for defendants.
We agree with defendants' contention that plaintiff's termination of his employment in Ann Arbor was insufficient alone to bar application of the statute of frauds. Some additional reliance is necessary. See Rowe v Noren Pattern & Foundry Co, 91 Mich. App. 254; 283 NW2d 713 (1979), lv den 409 Mich. 880 (1980); Schipani v Ford Motor Co, 102 Mich. App. 606, 615; 302 NW2d 307 (1981); Pursell v Wolverine-Pentronix, Inc, 44 Mich. App. 416; 205 NW2d 504 (1973). We find, however, that the additional factors present are sufficient to estop defendants from asserting the statute of frauds as a defense. Here plaintiff's complaint alleges relinquishment of two other jobs and relocation of his family, the promise of a definite *491 salary for a definite time, plus a percentage ownership in defendant corporation and the representation by defendants that the contract would be reduced to writing. We find these allegations to be sufficient for the application of promissory estoppel. The trial court erred by granting summary judgment to defendants.
Reversed and remanded. Plaintiff may tax costs.
BRONSON, J., concurred.
W.R. PETERSON, J. (dissenting).
I would affirm, finding the well-written opinion of the trial judge to be a correct application of the law. I, however, feel that I must voice my view that recent opinions of this Court reflect a casual deviation not only from the intent of the statute of frauds but also from the requirements of the promissory estoppel exception thereto.
The statute of frauds is not only designed to forestall the litigation of certain kinds of claims that are easy to assert and hard to disprove, but also is designed to insure certainty as to contracts of important nature and to foreclose the risk of error in resolving controversies as to what the various terms of an alleged oral contract might be. It adds nothing to justice or jurisprudence to allow ill-defined claims to be submitted under ill-defined rules on the notion that everyone ought to have his day in court. There are limited exceptions to the statute of frauds, but this case does not fall within the scope of those exceptions.
The pleaded allegations,[1] to be taken as true for *492 purposes of defendants' motion for summary judgment, were that:
1. Defendant Dierkes made the following promises to plaintiff:
a. Plaintiff would have a three year employment contract.
b. Plaintiff would be paid $400 per week.
c. Plaintiff would receive a percentage of ownership of defendant corporation, such percentage to increase during each year of employment.
2. Plaintiff took the job.
3. Plaintiff gave up two part-time jobs which were providing a total net income of $600 per week.
4. Plaintiff moved himself and his family from Ann Arbor to Jackson, where defendants' business was located.
5. Plaintiff was wrongfully discharged after two months on the job.
The opinion of my brethren herein correctly recites the four elements of promissory estoppel noted in McMath v Ford Motor Co, 77 Mich. App. 721, 725; 259 NW2d 140 (1977),[2] and finds that the lack of certainty[3] in the promise which was fatal to McMath's claim is not present in this case. I do not understand the certainty, or see the enforceability, *493 of plaintiff's claim of a promise to give him "a percentage of ownership * * * [which] would increase during each year", though evidence of such a promise would be admissible at trial because of its relevancy to the questions of inducement and reliance.
My principal quarrel with the opinion of the majority herein, and with the recent precedents on which that opinion relies, involves the fourth element of promissory estoppel; viz., that the circumstances of a case must be such that the promise must be enforced if injustice is to be averted. We start any discussion of the statute of frauds with the posit that its application may result in substantial injustice. Real and honest contracts will not be enforced because of the statute of frauds; honest men will lose the benefits of their bargains because they neglected to reduce them to writing. The exceptions to the enforcement of the statute of frauds turn upon something more than the injustice of the loss of the bargain they exist either because the enforcement of the statute would result in an unjust enrichment to the party asserting the statute as a bar[4] or in an unconscionable injury to the party seeking to enforce the contract.
In Oxley v Ralston Purina Co, 349 F2d 328 (CA 6, 1965), the plaintiff entered into an oral contract to fatten hogs for the defendant. To meet defendant's standards for the pig-leasing contract, plaintiff was required to make a capital investment of approximately $40,000 for specialized equipment and buildings on his farm. The investment was made under the defendant's direction, but the *494 defendant then refused to perform the contract. Plaintiff was thus faced not merely with the loss of anticipated profits from performance of the contract, but with the loss of his capital investment required to enable him to perform the contract. Finding no Michigan precedent, the federal court concluded that Michigan would apply the doctrine of promissory estoppel to prevent such an unconscionable injury to the plaintiff.
In Pursell v Wolverine-Pentronix, Inc, 44 Mich. App. 416, 420; 205 NW2d 504 (1973), a 59-year-old plaintiff alleged that, in reliance on an oral promise of employment until he reached age 65, he quit another job thereby giving up substantial retirement benefits. Citing Oxley, the Court said:
"Granted, there may be a difference between the spending of a large amount of money in reliance on an oral contract and one's giving up of his employment. However, the doctrine of equitable estoppel applies in those cases where its application is called for by the facts. * * *
"In the instant case, the facts adduced at trial may show that in this particular case, there was sufficient reliance to estop the defendant from raising the Statute of Frauds as a defense. Therefore, the granting of the motion for accelerated judgment was improper."
Pursell, unfortunately, in speaking of "sufficient reliance" fails to distinguish the separate requisites of reliance on the oral promise and a resulting unconscionable injury. Subsequent cases have rejected Pursell's apparent holding that leaving an existing job in reliance on an oral promise of long-term employment may be enough in itself to estop a defendant from invoking the statute of frauds,[5]*495 but have read Pursell as holding that leaving the former job, coupled with giving up retirement benefits, was sufficient reliance to justify the estoppel. Rowe v Noren Pattern & Foundry Co, 91 Mich. App. 254; 283 NW2d 713 (1979), lv den 409 Mich. 880 (1980), and Schipani v Ford Motor Co, 102 Mich. App. 606; 302 NW2d 307 (1981), say that giving up an existing job in reliance on an oral promise of long-term employment will not constitute sufficient reliance to invoke the doctrine of promissory estoppel, but that somehow the fact that the relinquished employment has good attributes (retirement benefits in Rowe, union security in Schipani) is a more sufficient and adequate reliance.[6]
Such facts may be relevant at trial, providing corroborating evidence of plaintiff's claim of reliance. So in the instant case, if plaintiff were to prove that he gave up work netting him $600 a week,[7] it would tend to corroborate his claim that he did so in reliance on an oral promise of employment which offered him something more than $400 a week gross. But that is a different question than that of whether an unconscionable injury will result if the oral contract is not enforced because of the statute of frauds, a question which *496 Pursell, Rowe, Schipani and my brethren herein do not address.
Do plaintiff's allegations indicate that he will suffer an unconscionable injury if the oral contract cannot be enforced by a suit for its breach? Apart from the change of jobs and the indefinite and unenforceable promise of a share in the ownership of defendant corporation, the only other pertinent allegation is that he changed his residence from Ann Arbor to Jackson. Such a move may be significant in terms of inducement and reliance, as where the employer requires the move or knows that without such a move the employment could not be accepted. In many such cases, the expense and other sequelae of a change of residence could well amount to an unconscionable injury. So the moves in McIntosh v Murphy, 52 Haw. 29; 469 P2d 177 (1970) (from California to Hawaii), and in Alaska Airlines, Inc v Stephenson, 217 F2d 295 (CA 9, 1954) (from California to Alaska), represented not only substantial expense, but also a major uprooting of self and family. In the instant case, plaintiff's move was approximately 35 miles, a distance less than that traveled daily by countless commuters and surely not involving substantial cost.[8] Nor is there any allegation that defendant required or even knew of the move.[9]
On these facts I would find that plaintiff has suffered no unconscionable injury and that there is accordingly no basis for invoking the doctrine of promissory estoppel.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] I omit reference to plaintiff's claim that defendants represented that their agreement would be put in writing. The fact, if true, is not pertinent herein for the promises to put the contract in writing are alleged by plaintiff to have been made after he had taken the job and were not, by his own assertion, made to induce him to accept the offer.
It is true that there are cases holding that such a promise, when made to induce entry into an oral contract, raises an estoppel if acted upon, e.g., Seymour v Oelrichs, 156 Cal 782; 106 P. 88 (1909); Alaska Airlines, Inc v Stephenson, 217 F2d 295 (CA 9, 1954); but the better view would seem to be to the contrary, Kahn v Cecilia Co, 40 F Supp 878 (DC NY, 1941). It would seem inconsistent to claim detrimental reliance on an oral contract while acknowledging the importance of a written contract.
[2] And see 3 Williston, Contracts, (3d ed), § 533A, pp 796-797, and 1 Restatement, Contracts, 2d, § 90, p 242.
[3] See also Ass'n of Hebrew Teachers of Metropolitan Detroit v Jewish Welfare Federation of Detroit, 62 Mich. App. 54; 233 NW2d 184 (1975).
[4] The equitable doctrine of estoppel would not apply even in cases of unjust enrichment if there is an adequate remedy at law, such as, for instance, recovery in quantum meruit. See Whipple v Parker, 29 Mich. 369 (1874), and Ordon v Johnson, 346 Mich. 38; 77 NW2d 377 (1956).
[5] Cf. McLaughlin v Ford Motor Co, 269 F2d 120 (CA 6, 1959); Gudenau v Farm Crest Bakeries, Inc, 268 Mich. 399; 256 N.W. 462 (1934); Lynas v Maxwell Farms, 279 Mich. 684; 273 N.W. 315 (1937); Adolph v Cookware Co of America, 283 Mich. 561; 278 N.W. 687 (1938). While none of these cases use the term promissory estoppel, the facts and rationale are similar, and accord with the universal rule in other states that leaving existing employment in reliance on an oral employment contract is only a necessary incident of being in the labor market and is not such an injury as to estop a defense of the statute of frauds. 54 ALR3d, pp 725-756.
[6] If giving up existing employment is not an unconscionable injury, I would not believe it could be bootstrapped into an unconscionable injury by a claim that some parts of the former employment contract were desirable. I thus think that Pursell, Rowe, and Schipani were wrongly decided.
[7] I do not think it significant that he gave up two part-time jobs rather than one full-time job.
[8] The complaint is silent as to the expense of moving. For cases holding that a change of residence is not an unconscionable injury, see 54 ALR3d, pp 733-734.
[9] It may be supposed that whether an injury is unconscionable may turn not only upon the nature and quantum of the injury or loss suffered by the plaintiff, but also on the nature of the conduct or mala fides of the defendant, an inquiry not suggested upon the facts herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/96838/ | 209 U.S. 393 (1908)
BEADLES
v.
SMYSER, MAYOR OF THE CITY OF PERRY, OKLAHOMA.
No. 150.
Supreme Court of United States.
Argued March 4, 1908.
Decided April 6, 1908.
ERROR TO AND APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF OKLAHOMA.
Mr. A.G.C. Bierer, with whom Mr. S.H. Harris and Mr. Frank Dale were on the briefs, for plaintiff in error and appellant.
Mr. A.N. Whiteside and Mr. H.B. Martin, for defendants in error and appellees, submitted.
*396 MR. JUSTICE DAY delivered the opinion of the court.
This is a proceeding to review the judgment of the Supreme Court of the Territory of Oklahoma, affirming the judgment of the District Court of Noble County in that Territory, denying a peremptory writ of mandamus to the plaintiff in error, also plaintiff below, seeking to compel the recognition of certain judgments and the levy of taxes by the city officers of the city of Perry, a city of the first class, in Noble County. The action was begun March 12, 1906, in the District Court upon a petition, which set forth the ownership in the plaintiff of judgments against the city of Perry, rendered, with two exceptions, in the year 1899, and aggregating the sum of $16,304.51, including interest and costs.
The petition avers that these judgments were rendered on warrants issued by the city of Perry upon the general fund of the city; that no funds having been provided for the payment of plaintiff's and certain other judgments, on December 3, 1901, the judgment creditors of the city entered into an *397 agreement with the city treasurer of the city by signing a certain paper writing, to wit:
"In, the undersigned, judgment creditor, holding judgment against the city of Perry, Noble County, Oklahoma Territory, hereby ask that the city treasurer pay all judgments against the city of Perry in order of rendition, hereby waiving right to payment pro rata, if such right exists, and this waiver shall apply to all grantees and assigns. Said judgments are in amounts and dates as follows:" [Here follows a list of the judgments.]
At that time the outstanding unpaid judgment indebtedness of the city of Perry amounted to $22,000, all of the owners of which, excepting the sum of $4,000, signed the agreement; that the waivers thus signed were presented to the city council of the city, which adopted the following resolution:
"Whereas, the judgment creditors holding judgments against the city of Perry have practically all signed written waivers of the right, if such right exists, to payment of said judgments pro rata, and therein consent to the payment of said judgments in the order of their rendition against said city:
"Therefore, be it resolved, That the city treasurer is hereby authorized and directed to pay the said judgments existing against the city of Perry in the order of their rendition out of the funds now on hand and as they shall accrue in the judgment fund."
That thereafter the city treasurer followed the plan thus outlined of paying judgments up to the early part of the year 1905, and the judgments prior to those sued upon by the plaintiff were paid off in that way. And it is averred that under the laws of the Territory of Oklahoma a judgment fund must be created to satisfy a judgment against a municipality, and a judgment of that kind can be paid in no other way. And that under the laws of Oklahoma no execution can be levied upon a judgment against the municipality, and that during the time since the rendition of the judgments the city of Perry *398 has had no property subject to levy upon execution, and that the judgments of the plaintiff could not have been paid, and taxes levied for that purpose, because there had not been sufficient money in the judgment fund of the city of Perry to pay the judgments or any part thereof. That under the agreement of December 3, 1901, payments of judgments against the city have been made, but in the order of rendition the fund has been paid upon judgments prior to the plaintiffs. That under the law of the Territory, during the life of the said judgments, at least since the year 1899, it has been the duty of the city of Perry to levy annually a tax not to exceed five mills on the dollar on all the property of the said city, to create a judgment fund, and that said city has made said levy annually, and paid judgments down to the early part of 1905, since which time the city treasurer of the city of Perry, under the direction of the mayor and city council, has declined to pay the plaintiff's judgments or any proportion of the same, and that there has accumulated in the hands of the city treasurer $2,286.96, the judgment fund of said city. And that at all times down to the beginning of the year 1905 the city of Perry has recognized the binding force and validity of said judgments; that the mayor and council and treasurer of said city decline and refuse to recognize the validity of the plaintiff's judgments or pay any part thereof, and deny any liability thereon, solely on the ground that the same have become dormant and barred by the statute of limitations of the Territory of Oklahoma. And other averments are made as to the inability of the plaintiff to otherwise collect their money upon the judgments than by payment by a levy at five mills on the dollar of the taxable property of the city. And the plaintiff prayed a writ of mandamus against the mayor, city council and treasurer of said city, commanding them to recognize the said judgments and to continue to make the five-mill levy allowed by the law for the judgment fund for the payment of said judgment's against the city, as provided by law.
An alternate writ of mandamus was issued, reciting the allegations *399 of the petition, to which the defendant filed an amended answer, in which they set up that each and all of the judgments set out in the alternate writ of mandamus have become dormant because no execution was issued on any of said judgments, and no proceeding begun for the revival of any of them and the same were barred by the statute of limitations of the Territory.
The plaintiff filed a motion for judgment upon the amended answer and prayed the issuance of a peremptory writ of mandamus upon the ground that the amended answer failed to state any legal reason why said peremptory writ should not be issued. The defendant moved the court for judgment on the pleadings, on the ground that all the judgments were barred by the statute of limitations. The court sustained the motion of the defendant and entered final judgment in the defendant's favor, upon the ground that all the judgments set out in the alternate writ of mandamus have become dormant and are barred by the statute of limitations.
Upon proceedings in error in the Supreme Court of the Territory of Oklahoma this judgment was affirmed on the authority of Beadles v. Fry, 15 Oklahoma, 428. The present case is reported, 17 Oklahoma, 162.
The question is first made as to the jurisdiction of this court, because it is averred that the sum of $5,000 is not involved, but we are of the opinion that the issue made and decided involved the validity of the $16,000 and upwards, of judgments described in the petition and amended writ. The prayer of the petitioner was for a continuous levy of taxes for the amount permitted by law to be applied in payment of the judgments. The answer set up that all the judgments were barred by the statute of limitations and the District Court of Noble County determined that the judgments and each and all of them set out in the petition and alternate writ of mandamus had become dormant and were barred by the statute of limitations. This judgment was affirmed by the Supreme Court of Oklahoma.
*400 Appeals and writs of error are allowed from the Supreme Court of Oklahoma to this court where the value of the property or the amount in controversy, to be ascertained by the affidavit of either party or other competent witness, exceeds $5,000. Supplement U.S. Revised Stats. vol. 1, p. 724.
We think the judgment in this case involves the validity of all the plaintiff's judgments, and that the amount in controversy is not simply the fund in the hands of the treasurer, but the amount of all the judgments concerning which relief was sought and which were directly adjudicated to be barred by the statute of limitations.
The question made in the case is whether the judgments are dormant by the statute of limitations of the Territory of Oklahoma or failure to issue execution thereon for the period of five years, and because the same were not revived within one year after they became dormant. The statutes of Oklahoma in 2 Wilson's Statutes of 1903, provide as follows:
Section 4635. "If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered, in any court of record in this Territory, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor."
Section 4623 is as follows:
"An order to revive an action against the representative or successor of a defendant shall not be made without the consent of such representative or successor unless in one year from the time it could have been first made."
And section 4630 provides:
"If a judgment becomes dormant it may be revived in the same manner as prescribed for reviving actions before judgment."
It is contended by the counsel for the appellant that this case is governed by the ruling of this court in Duke, Mayor *401 &c. v. Turner and others, 204 U.S. 623. We are of opinion that the question here involved was not determined in that case. There was no question of a judgment becoming dormant under the statute of limitations for want of execution within five years. The point decided in that case was that the petition for mandamus was not a civil action within the meaning of the Oklahoma Code, barred by the three-year statute of limitations, and the question was whether the relator had slept upon his rights for such an unreasonable time as to prejudice the rights of the defendant and preclude relief by mandamus. In this case the underlying question is not as to whether a writ of mandamus is the proper remedy, but is, whether the judgment is dormant by reason of the statute of limitations and incapable of being enforced against the municipality.
The Supreme Court of Oklahoma held that the statute made no exception, and that notwithstanding the averment of the petition that the city of Perry had no property liable to be reached on execution, that unless execution were issued within the five years, or the judgment revived within one year, it had become dormant for failure to comply with the law.
There is some difference of view in the opinion of the courts upon the subject of executions against municipalities, and in some of them it is held that property of a municipality may be reached on execution which is held for profit and not charged with any public trust or use. It was held in this court that the public property of a municipal corporation cannot be seized upon execution. Klein v. New Orleans, 99 U.S. 149.
Judge Dillon, in his work on Municipal Corporations (4th ed.) notices the differences of ruling on the subject, and states as his own conclusion § 576:
"On principle, in the absence of statutable provision, or legislative policy in the particular State, it would seem to be a sound view to hold that the right to contract and the power to be sued give to the creditor a right to recover judgment; that judgment should be enforceable by execution against the *402 strictly private property of the corporation, but not against any property owned or used by the corporation for public purposes, such as public buildings, hospitals and cemeteries; fire engines and apparatus, waterworks, and the like; and that judgments should not be deemed liens upon real property except when it may be taken in execution."
Accepting the decision of the Supreme Court of Oklahoma, rendered in 15 Oklahoma, supra, construing the statute so as to permit the issuance of execution against the municipality, with the right to levy upon the private property of the corporation if it has any, could the city take advantage of the failure to issue execution under the circumstances shown in this case? This subject was briefly disposed of in the opinion in that court, and of it the learned court said (15 Oklahoma, 436):
"It is alleged that this agreement and resolution of the city council prevented the running of the statutes. This resolution was passed at a time when the plaintiff's judgments were in full force and effect. The city council did not attempt to renew its liability on these judgments. Without expressing our views as to whether such judgments should be paid pro rata, or in order of priority as to date, we are of the opinion that the council could not change the law, and if the resolution purported to change it, it would be void; and if it was in conformity with the law it would not change the relation of the parties."
That the principles of right and justice, upon which the doctrine of estoppel in pais rest, are applicable to municipal corporations, is recognized by textwriters and in well-considered cases. In 1 Dillon on Municipal Corporations (4th ed.), in a note to § 417, that learned author says:
"Any positive acts (infra vires) by municipal officers which may have induced the action of the adverse party, and where it would be inequitable to permit the corporation to stultify itself, by retracting what its officers had done, will work an estoppel."
And this case does not rest on the ground of equitable estoppel *403 alone. The manner of liquidation of these judgments was the subject of express contract between the parties.
In the present case, by the action of the city council, the judgment creditors were so placed that during the time, at least while the city council were carrying out the arrangement of December 3, 1901, in good faith, they could not consistently with fair dealing and the terms of the contract on their part, issue an execution to seize the property of the municipality; had they undertaken to do so a court of equity would have promptly restrained such proceedings.
It is averred, and not denied, that up until the year 1905 the city council made a levy each year for the largest amount which the statute permitted, to create a judgment fund out of which to pay, and out of which was regularly paid, the outstanding judgments against the city, and that these payments continued until the plaintiff's judgments were reached, which were next in order. While thus acting to the limit to which the law permitted, and in good faith carrying out the arrangement between the parties, it is perfectly apparent that the plaintiff was not in a position to seize by execution any property of the municipality.
If it could be held, as the authorities indicate (2 Dillon on Municip. Corp., 4th ed., § 850, note 1), that when execution cannot be issued on a judgment against a municipality, mandamus may take its place, the action of the city council in making the arrangement in question would have equally prevented the plaintiffs from availing themselves of that writ.
In this case the agreement made by the parties in December, 1901, was being continuously carried out until 1905. And during that time the city of Perry was doing all it could be compelled by mandamus to do in levying taxes to the full amount required by law for the payment of judgments against the city. The court would have no power by mandamus to compel the levy of taxes which the law did not authorize. United States v. Macon County Court, 99 U.S. 582.
As we have said, the principles of natural justice and fair *404 dealing are alike applicable to municipal corporations as to individuals, and to permit the city to escape the payment of judgments, whose validity is not otherwise questioned, for failure to issue execution or sue out a writ of mandamus during the time when the action of the city officers was such as to prevent the exercise of the right, would be to permit the action of the representatives of the city, who have had the benefit of the contract during the time both parties were observing its obligations, to work a gross injustice upon the creditors holding valid judgments against the municipality.
We have been referred to no case precisely in point. Analogous cases are not altogether wanting. In Mercantile Trust Co. v. St. L. & S.F. Rwy., 69 Fed. Rep. 193, it was held that a stay of execution in the record prevented the judgment becoming dormant. In Marshall v. Minter, 43 Mississippi, 678, it was held that the statute did not run during the time an injunction was in force, sued out by the adverse party and afterwards dissolved.
It is not argued at the bar in this case that the arrangement with the judgment creditors was void for want of power in the municipality to make the arrangement of December, 1901, and we fail to see any valid reason why the municipality might not enter into this arrangement. It was permitted by law to make an annual levy of five mills on the dollar. 1 Wilson's Statutes, 1903, § 466. If the judgment creditors and the municipality saw fit to make an arrangement by which the amount of this annual levy might be distributed by the consent of the creditors among them in accordance with the priority of their judgments, we perceive no reason why this may not be legally done. The effect of this arrangement was to prevent the judgment creditor from taking such steps as the law permitted to collect his judgment, and, upon principles of common right and justice, it would not do to permit the city to carry out such an arrangement during nearly all the five years' period, and then meet its obligation by a plea of the statute of limitations upon the ground that the judgments *405 had become dormant, while both parties were recognizing their binding obligation and doing all that the law permitted, to effect their satisfaction, and had entered into a contract which prevented the judgment creditors from taking steps to avail themselves of their right to collect their judgments by execution or by writ of mandamus.
For these reasons the judgment of the Supreme Court of Oklahoma Territory is
Reversed, and the cause remanded to the Supreme Court of the State of Oklahoma for further proceedings in accordance with this opinion. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2587998/ | 205 P.3d 101 (2009)
226 Or. App. 604
IN RE M.J.
STATE
v.
M.J.
Court of Appeals of Oregon.
March 19, 2009.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2861119/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00471-CV
Arena Football League, Appellant
v.
Texas Workers' Compensation Insurance Facility, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. 96-12242, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
Appellee Texas Workers' Compensation Insurance Facility has moved to dismiss
this appeal for want of jurisdiction. We will grant the motion.
This appeal arises from a no-answer default judgment signed June 25, 1997. The
live pleading at the time of the hearing on the default judgment sought damages, pre-judgment
interest, attorney's fees and post-judgment interest. The judgment awarded damages and post-judgment interest but did not address pre-judgment interest or attorney's fees and had no "Mother
Hubbard" clause. Appellant filed a "Motion to Reconsider" (1) on March 13, 1998, which was
overruled by order of the trial court on August 10, 1998. Appellant filed a notice of appeal on
August 17, 1998. If the June 25, 1997 judgment was final, then the trial court lost plenary power
over the judgment thirty days after its signing, had no power to decide the motion to reconsider,
and any attempted appeal, whether by ordinary appeal or restricted appeal, (2) is untimely. See Tex.
R. App. P. 26.1(a), (c).
Appellant argues that the default judgment of June 25, 1997 is interlocutory because
it failed to dispose of all claims. Appellee argues that since appellee waived its claims for
attorney's fees and pre-judgment interest before the June 25 judgment was rendered, the judgment
was final. We agree that there is a final judgment.
There is no presumption of finality attached to a default judgment. See Houston
Health Clubs v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986); Rosedale Partners,
Ltd. v. 131st Judicial Court, Bexar County, 869 S.W.2d 643, 646 (Tex. App.--San Antonio 1994,
orig. proceeding). We ascertain finality by discerning the trial court's intent from the language
of the decree, the record as a whole, and, on occasion, the parties' conduct. See Continental
Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 277 (Tex. 1996) (emphasis added).
In Rosedale, 869 S.W.2d at 647-48, the party seeking to have the judgment held
final argued that it had waived the claims not dealt with in the judgment. The court refused to find
waiver, noting that there was no amended petition, affidavit establishing a date when the claim was
abandoned, or any other evidence of waiver to establish the default was final when rendered. Id.
at 648 (emphasis added). Similarly, in Zamarripa v. Sifuentes, 929 S.W.2d 655 (Tex. App.--San
Antonio 1996, no writ) a default judgment omitted a disposition of a claim for pre-judgment
interest. The court noted that the record before it did not contain any amended petition omitting
pre-judgment interest, an affidavit explaining when the claim was abandoned, or any other
evidence indicating an intent to abandon the remaining claim for pre-judgment interest. Id. at 658
(emphasis added).
This case presents the "other evidence" referred to in Rosedale and Zamarripa,
through the on-the-record waiver of the claims for pre-judgment interest and attorney's fees. We
think the trial court intended the judgment of June 25, 1997, rendered after the waiver in open
court, to be final. Therefore, the order of June 25 was the signed written order triggering the
appellate timetables. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995).
Because no motion for new trial was filed within thirty days of the final judgment,
the notice of appeal was due thirty days from the date the judgment was signed. See Tex. R. App.
P. 26.1. The notice of appeal was not filed until August 17, 1998, after the time for perfecting
an appeal, whether ordinary or restricted, and thus this Court has no jurisdiction. See Tex. R.
App. P. 25.1(b).
Accordingly, we grant appellee's motion and dismiss the appeal for want of
jurisdiction. See Tex. R. App. P. 42.3(a).
Mack Kidd, Justice
Before Chief Justice Aboussie, Justices Powers and Kidd
Appeal Dismissed for Want of Jurisdiction
Filed: December 10, 1998
Do Not Publish
1. Appellant does not contend that the "Motion to Reconsider" was anything other than a
motion for new trial seeking to set aside a default judgment. He does not contend that he was
attempting to bring a bill of review by this motion.
2. A restricted appeal under the Rules of Appellate Procedure that became effective September
1, 1997 is the equivalent of the writ of error appeal under the old rules. See Tex. R. App. P. 30.
A restricted appeal must be perfected within six months of the date of the judgment. See Tex. R.
App. P. 26.1(c).
ought damages, pre-judgment
interest, attorney's fees and post-judgment interest. The judgment awarded damages and post-judgment interest but did not address pre-judgment interest or attorney's fees and had no "Mother
Hubbard" clause. Appellant filed a "Motion to Reconsider" (1) on March 13, 1998, which was
overruled by order of the trial court on August 10, 1998. Appellant filed a notice of appeal on
August 17, 1998. If the June 25, 1997 judgment was final, then the trial court lost plenary power
over the judgment thirty days after its signing, had no power to decide the motion to reconsider,
and any attempted appeal, whether by ordinary appeal or restricted appeal, (2) is untimely. See Tex.
R. App. P. 26.1(a), (c).
Appellant argues that the default judgment of June 25, 1997 is interlocutory because
it failed to dispose of all claims. Appellee argues that since appellee waived its claims for
attorney's fees and pre-judgment interest before the June 25 judgment was rendered, the judgment
was final. We agree that there is a final judgment.
There is no presumption of finality attached to a default judgment. See Houston
Health Clubs v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986); Rosedale Partners,
Ltd. v. 131st Judicial Court, Bexar County, 869 S.W.2d 643, 646 (Tex. App.--San Antonio 1994,
orig. proceeding). We ascertain finality by discerning the trial court's intent from the language
of the decree, the record as a whole, and, on occasion, the parties' conduct. See Continental
Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 277 (Tex. 1996) (emphasis added).
In Rosedale, 869 S.W.2d at 647-48, the party seeking to have the judgment held
final argued that it had waived the claims not dealt with in the judgment. The court refused to find
waiver, noting that there was no amended petition, affidavit establishing a date when the claim was
abandoned, or any other evidence of waiver to establish the default was final when rendered. Id.
at 648 (emphasis added). Similarly, in Zamarripa v. Sifuentes, 929 S.W.2d 655 (Tex. App.--San
Antonio 1996, no writ) a default judgment omitted a disposition of a claim for pre-judgment
interest. The court noted that the record before it did not contain any amended petition omitting
pre-judgment interest, an affidavit explaining when the claim was abandoned, or any other
evidence indicating an intent to abandon the remaining claim for pre-judgment interest. Id. at 658
(emphasis added).
This case presents the "other evidence" referred to in Rosedale and Zamarripa,
through the on-the-record waiver of the claims for pre-judgment interest and attorney's fees. We
think the trial court intended the judgment of June 25, 1997, rendered after the waiver in open
court, to be final. Therefore, the order of June 25 was the signed written order triggering the
appellate timetables. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995).
Because no motion for new trial was filed within thirty days of the final judgment,
the notice of ap | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1617640/ | 623 So. 2d 1230 (1993)
Alvin Louis MARSHALL, Appellant,
v.
STATE of Florida, Appellee.
No. 92-126.
District Court of Appeal of Florida, First District.
September 14, 1993.
David L. Dees, Pensacola, for appellant.
Robert A. Butterworth, Atty. Gen., Sara D. Baggett, Asst. Atty. Gen., Tallahassee, for appellee.
PER CURIAM.
Appellant, Alvin Louis Marshall, was charged with numerous criminal offenses in fourteen cases in Escambia County, Florida, committed during the period from December 1987 to December 1990. He pled nolo contendere to those charges, was adjudicated guilty and received enhanced sentences as an habitual felony offender. Marshall challenges his sentences on the grounds that (1) the habitual felony offender statute, section 775.084, Florida Statutes, violates appellant's rights to due process and equal protection, (2) the amendments to the habitual felony offender statute contained in Chapter 89-280, Florida Laws (1989), violate the single subject requirement of article III, section 6 of the Florida Constitution, and (3) his sentence is illegal because he does not have sufficient predicate convictions to qualify as an habitual offender.
We reverse Marshall's sentences based on the second two issues. Marshall's first contention that the habitual offender statute violates due process or equal protection has been rejected numerous times. Merriweather v. State, 609 So. 2d 1299 (Fla. 1992); Tillman v. State, 609 So. 2d 1295 (Fla. 1992); Ross v. State, 601 So. 2d 1190 (Fla. 1992); Murphy v. State, 616 So. 2d 1100 (Fla. 1st DCA 1993); Hodges v. State, 596 So. 2d 481 (Fla. 1st DCA 1992), quashed on other grounds, 616 So. 2d 994 (Fla. 1993); Perkins v. State, 583 So. 2d 1103 (Fla. 1st DCA 1991), approved, 616 So. 2d 9 (Fla. 1993); Wilson v. State, 574 So. 2d 1170, 1171 (Fla. 1st DCA), rev. denied, 583 So. 2d 1038 (Fla. 1991); Smith v. State, 567 So. 2d 55 (Fla. 2d DCA 1990), rev. denied, 576 So. 2d 291 (Fla. 1991); Arnold v. State, 566 So. 2d 37 (Fla. 2d DCA 1990), rev. denied, 576 So. 2d 284 (Fla. 1991); Barber v. State, 564 So. 2d 1169 (Fla. 1st DCA), rev. *1231 denied, 576 So. 2d 284 (Fla. 1990); Roberts v. State, 559 So. 2d 289 (Fla. 2d DCA 1990), cause dismissed, 564 So. 2d 488 (Fla. 1990); King v. State, 557 So. 2d 899 (Fla. 5th DCA), rev. denied, 564 So. 2d 1086 (Fla. 1990).
Marshall correctly asserts that amendments to the habitual felony offender statute found in chapter 89-280, Laws of Florida, violate the single subject rule. The Florida Supreme Court in State v. Johnson, 616 So. 2d 1 (Fla. 1993), recently held that "chapter 89-280 violates article III, section 6, of the Florida Constitution." The court noted that chapter 91-44's biennial reenactment of chapter 89-280, effective May 2, 1991, cured the single subject violations as it applied to all defendants sentenced under section 775.084 whose offenses were committed after that date. The court acknowledged that resentencing would be required for individuals whose sentence was affected by the amendments to section 775.084 contained in chapter 89-280 and whose offense was committed before May 2, 1991. Appellant fell within the class of individuals entitled to resentencing. All of appellant's cases involved offenses occurring before the May 2, 1991 reenactment date of chapter 89-280. Moreover, appellant was directly affected by the amendments contained in chapter 89-280. The amendments expanded the definition of habitual felony offender from those defendants who committed two felonies in this state to include defendants with "other qualified offenses." The only predicate offenses disclosed by this record occurred outside of the state. No prior felonies in Florida appear. Marshall therefore would not qualify as a habitual felony offender under the preamended version of the statute. See Brown v. State, 609 So. 2d 730 (Fla. 1st DCA 1992).
In light of our reversal of the sentences based on appellant's second issue, we must also reverse on the third issue, the illegality of appellant's sentence. The fact that defendant's sentence as a habitual offender was the result of a plea bargain does not preclude him from contesting the legality of his sentence. Brown v. State, supra. As this court held in Brown:
One who pleads nolo contendere or guilty without an express reservation of right to appeal, is not barred from maintaining a direct appeal on the following limited class of issues which occur contemporaneously with entry of the plea: (1) subject matter jurisdiction, (2) illegality of the sentence, (3) government's failure to abide by the terms of the plea bargain, and (4) voluntary and intelligent character of the plea... . Further, a criminal defendant cannot, by virtue of a plea bargain, confer upon a court the authority to impose an illegal sentence... . Consequently, the fact that appellant's sentences as an habitual offender were the result of a plea bargain would not preclude him from contesting the legality of the sentence.
609 So.2d at 732 [citations omitted].
In Brown, we distinguished the situation in which a defendant contests the illegality of his sentence after entering a plea bargain or nolo contendere plea from Basilisco v. State, 593 So. 2d 588 (Fla. 1st DCA 1992), and Jefferson v. State, 571 So. 2d 70 (Fla. 1st DCA 1990), cases in which the court found a defendant knowingly waived the procedural rights available under section 775.084 by entering into a plea agreement for an habitual offender sentence. We noted that nothing in the recitation of facts in either Jefferson or Basilisco suggests that the respective defendants did not qualify as habitual felony offenders, i.e., that their prior records did not satisfy the statutory criteria. In contrast, this case, like Brown, concerns the legality of habitual offender sentencing.
Accordingly, we VACATE appellant's habitual felony offender sentence and REMAND for further proceedings. On remand, the trial court may reimpose an enhanced sentence upon the state's producing sufficient evidence to allow proper findings pursuant to the habitual offender statute in effect before May 2, 1991. Alternatively, the state may agree to a reduction of the sentence to a legal term. If the state does not elect either of those options, the trial court should permit appellant to withdraw his plea and proceed to trial. Forbert v. State, 437 So. 2d 1079 (Fla. 1983); Ruiz v. State, 537 So. 2d 682 (Fla. 3d DCA 1989). Cleveland v. State, 394 So. 2d 230 *1232 (Fla. 5th DCA 1981); Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981).
JOANOS, KAHN and MICKLE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1655006/ | 711 F. Supp. 1125 (1989)
Simbi WATERS, et al., Plaintiffs,
v.
Marion BARRY, Jr., et al., Defendants.
Civ. No. 89-0707 (CRR).
United States District Court, District of Columbia.
May 24, 1989.
*1126 *1127 Arthur B. Spitzer and Elizabeth Symonds, American Civil Liberties Union Fund of the Nat. Capital Area, Washington, D.C., for plaintiffs.
Victor E. Long and Robin C. Alexander-Smith, Asst. Corp. Counsel for District of Columbia, with whom Frederick D. Cooke, Jr., Corp. Counsel, Martin L. Grossman, Deputy Corp. Counsel, and Arthur D. Burger, Chief, General Litigation Section, were on the briefs, Washington D.C., for defendants.
OPINION
CHARLES R. RICHEY, District Judge.
I. Introduction
The District of Columbia, like most major metropolitan areas and many rural communities, is in the midst of a crisis. As the local and national media daily report, the sale and use of illicit drugs in the District of Columbia has combined in recent years with long-standing problems of economic and social inequity to create an unprecedented explosion of violence. The drug scourge and its accompanying violence tend to make victims of those who can bear it least: the poor, minorities and the disadvantaged.
The disease is undisputed; the question is how to cure. Facile, knee-jerk responses will not suffice. Just as mere punishment will never cure the drug addict, so mere martial tactics will never wean the District from its addiction to violence and illegal trafficking in drugs. Having said this, the Court emphasizes that any legislative response to the District's crisis is none of this Court's business, except insofar as it may impact upon the constitutional rights of the District's citizenry. The Mayor and the members of the City Council are the District's elected officials, and thus are entitled to deference as the Court reviews the District's response to the current situation.
One such response, at issue in this lawsuit, is the decision of the District's elected officials to establish a nighttime juvenile curfew in the District of Columbia. The curfew statute (the "Act") would,[1] with certain general exceptions, make it illegal for persons below the age of 18 to be on the streets of the District between 11:00 p.m. and 6:00 a.m.[2] In addition to sanctioning the juveniles who violate the curfew, the Act would levy fines against the juveniles' parents.
The stated objectives of the Act are to reduce the incidence of juvenile violence, both against and by juveniles, to reduce juveniles' exposure to drug trafficking and other criminal activity, and to aid parents and others responsible for juveniles in carrying out their supervisory obligations. The curfew has a stated term of 90 days. If, however, the Mayor is satisfied with the curfew, he may request that it be "continued" for an additional undefined period.[3]
The plaintiffsa group of minor and near-minor residents of the District, several parents of minors, and individuals affiliated *1128 with religious organizationshave challenged the Act.[4] They allege that the Act, if enforced, would work an unacceptable infringement of their First, Fourth and Fifth Amendment rights. On April 20, 1989, the date the Act was to have gone into effect, the plaintiffs obtained a temporary restraining order barring its enforcement, 711 F. Supp. 1121. The District subsequently agreed to an extension of the temporary restraining order until the Court had an opportunity to render a decision on the merits. The parties have now filed cross motions for summary judgment, and, as there are no disputes as to material facts, the matter is ripe for decision.
Notwithstanding the deference the Court must show all legislation, the Court is constrained to conclude that the Act is constitutionally unacceptable. The Act cannot be implemented without violating the constitutional rights of thousands of innocent minors. As this Court has previously stated, we cannot throw the baby out with the bathwater in our efforts to deal with the problems that beset us. Because the Act does so, the Court will permanently enjoin its enforcement.
The Court first addresses certain preliminary matters. The Court will then proceed to describe its reasoning on the merits of these important constitutional issues.
II. Preliminary Matters
A. Justiciability
The District first challenges the plaintiffs' right to maintain this action. According to the District, the doctrine of "justiciability," and the claimed lack thereof in this case, preclude this lawsuit. The factual core of the District's position is the preenforcement nature of the plaintiffs' challenge to the Act. Because none of the named plaintiffs have been detained or otherwise sanctioned under the Act, and because no one else has either, the District argues that the plaintiffs' claims, at this stage, are merely "abstract" and "speculative."[5] Such claims, the District suggests, cannot presently sustain federal jurisdiction. According to the District, the plaintiffs' claims run afoul of Article III's requirement that every federal adjudication involve a live "case or controversy."[6]
In the Court's view, the District's position is unduly formal; it places unwarranted emphasis upon the distinction between a preenforcement challenge and a post-enforcement challenge. The distinction, after all, is simply one of fact which may or may not be relevant in a particular case. Contrary to the logic of the District's position, an action does not become justiciable merely because enforcement has occurred, see City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983), nor is an action non-justiciable per se because enforcement has not occurred. See Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 108 S. Ct. 636, 642, 98 L. Ed. 2d 782 (1988).
The question, properly stated, is whether the real adversity between the parties as to dispositive issues supports the conclusion that those issues have been properly and vigorously presented for adjudication. In the preenforcement context, that standard is satisfied when the "plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them." American Booksellers, 108 S.Ct. at 642. See also Babbitt v. United Farm Workers, 442 U.S. 289, 298, 99 S. Ct. 2301, 2308, 60 *1129 L.Ed.2d 895 (1979) (preenforcement plaintiff must allege "an intention to engage in a course of conduct arguably affected with a constitutional interest but proscribed by a statute"); Steffel v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 1215, 39 L. Ed. 2d 505 (1974) (facts established well-founded fear of enforcement); Doe v. Bolton, 410 U.S. 179, 188, 93 S. Ct. 739, 745, 35 L. Ed. 2d 201 (1973); McCollester v. City of Keene, 668 F.2d 617, 619 (1st Cir.1982) (discussing standing in context of preenforcement challenge to curfew statute).
When First Amendment concerns are raised, the danger that "law abiding" behavior will result in self-censorship serves to heighten Article III's sympathy toward preenforcement challenges. See American Booksellers, 108 S.Ct. at 642 ("Further, the alleged danger of this statute is, in large measure, one of self-censorship, a harm that can be realized even without an actual prosecution."); Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S. Ct. 1116, 1120, 14 L. Ed. 2d 22 (1965) ("Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expressionof transcendent value to all society, and not merely to those exercising their rightsmight be the loser").[7]
Here, the plaintiffs have undeniably established that they have engaged in past acts which would be prohibited if the Act were enforced. The record indicates that the minor plaintiffs have all participated in activities that have required their presence on the streets of the District after the curfew deadlines, and that they wish to continue to do so. Of equal importance, however, is the record's clear indication that the plaintiffs would abide by the Act if it were enforcedthe plaintiffs would curtail their involvement with perfectly lawful (but potentially nocturnal) activities in order to conform their behavior to law. It thus seems to the Court that the minor plaintiffs satisfy Article III from two perspectives. First, if they continue their prior practices without modification, they will clearly run afoul of the Act. A decision to do so would provide the plaintiffs with "an actual and well-founded fear" of prosecution under the Act.[8] Second, if they abstain from legitimate activities, they will have engaged in precisely the type of self-censorship that concerned the Supreme Court in American Booksellers. Citizens for whom the rule of law has meaning should not be deprived of their day in court because of their compliance with the law; silent but involuntary relinquishment of constitutional rights is, in this Court's view, an immediate and ripe "harm." It is a harm that perhaps lacks the immediate drama of a full arrest and prosecution, as well as the awful consequences that follow,[9] but *1130 it is a harm that nevertheless carries great constitutional significance.
The District places great reliance upon the First Circuit's decision in McCollester v. City of Keene, 668 F.2d 617 (1st Cir. 1982), which also involved a challenge to a minor curfew ordinance. In McCollester, the court held that the plaintiff had failed to make out a justiciable case or controversy, and therefore directed that the plaintiff's complaint be dismissed. In McCollester, however, the court placed great emphasis upon the plaintiffs failure to give any indication of her past conduct or the conduct she intended to undertake in the future. It appears that the plaintiff alleged only (1) that she was a minor at the time of the complaint, and (2) that the defendants had actually enforced the ordinance by arrest and prosecution (but not against her). Id. at 618. In addition, the court noted a discrepancy between the avowed purposes of the ordinanceto restrict disorderly juvenile behaviorand its apparently broad scope, which by its terms prohibited perfectly innocuous nocturnal conduct. The court concluded that these two factorsthe plaintiff's fact-free complaint, and the potentially limited scope of the ordinanceworked together to remove a facial likelihood that the plaintiff would ever be prosecuted. Id. at 621.
The factors deemed significant in McCollester are not present in this case. The plaintiffs here have provided detailed and undisputed descriptions of their past activities, activities which they hope to continue. It is manifestly apparent that the bulk of these activities, if not modified, would be proscribed by the Act. Further, unlike the situation in McCollester, the expressed purposes of the Act do not suggest that the Act's application would or should be limited only to certain forms of juvenile behavior. The Act's stated objectives are to protect juveniles from nocturnal evils: thus, any time a juvenile were discovered about at night, he or she would presumably be "in danger" and therefore susceptible of arrest and detention. A contrary construction or application of the Act would depart from the Act's expressed purposes. In McCollester, on the other hand, a limiting construction or application would have been consistent with the ordinance's expressed objectives. The factors which counseled hesitation in McCollester are therefore absent in this case, and the Court declines to reach a similar result.
For the foregoing reasons, the Court concludes that the plaintiffs' claims present a justiciable case or controversy. The District's motion for summary judgment on this point will be denied.
B. Class Certification
The plaintiffs filed their complaint in this action on behalf of a putative class, and now move for certification pursuant to Fed. R.Civ.P. 23(a) and 23(b)(2). The plaintiffs define the class for which they seek certification as including
all minors in the District of Columbia, all parents of minor children in the District of Columbia, all stepparents, grandparents, uncles, aunts, adult friends and other adults who will be prevented from acting in loco parentis to minors in the District of Columbia during curfew hours, all young adults in the District of Columbia who might appear to a police officer to be minors, all for-profit corporations that will suffer harm because of the discrimination against them in the curfew law, and all persons and organizations whose exercise of political, cultural, religious or associational activities will be impaired because of the application of the curfew law to them, their co-religionists or associational companions.
Plaintiffs' Motion for Class Certification at 1-2.[10]
*1131 The Court finds that the stated class satisfies the standards articulated in Fed.R.Civ.P. 23(a). Obviously, such a class, which would consist of thousands (if not hundreds of thousands) of individuals, is so numerous as to render joinder impracticable. There are questions of law or fact common to all members, namely, the existence of a curfew law that is alleged to infringe upon their constitutional rights. The theories under which each of the named plaintiffs proceed inform the class definition; thus, the claims of the named plaintiffs are typical of the claims of the class members. Finally, the competence and dedication of the plaintiffs' counsel leaves the Court utterly without doubt that the named plaintiffs will fairly and adequately protect the interests of the class. See Fed.R.Civ.P. 23(a)(1)-(4).
The Court is further convinced that the putative class satisfies the requirements of Rule 23(b)(2). By implementing the Act, the District has "acted or refused to act on grounds generally applicable to the class." Further, it has been held that class certification under Rule 23(b)(2) is particularly appropriate "where, as here, the claims of the members of the class may become moot as the case progresses." Johnson v. City of Opelousas, 658 F.2d 1065, 1070 (5th Cir.1981) (certifying class challenging juvenile curfew ordinance).
The District opposes the proposed class on the grounds that not all members oppose the curfew; the District offers the eminently plausible suggestion that, of the thousands of class members, more than a few favor imposition of a curfew.[11] From this fact, the District argues that the named plaintiffs' claims are not typical of those of the class members, and that the named plaintiffs will not fairly and adequately protect the interests of the class.[12]
The Court agrees that the proposed class will inevitably include individuals who favor the curfew. In matters of this type, involving a class of this size, differences of opinion are unavoidable. Nevertheless, diversity of opinion within a class does not defeat class certification. See Lanner v. Wimmer, 662 F.2d 1349, 1357 (10th Cir. 1981) ("The fact that the class may have included persons who support the [challenged] program does not offend the principles set down in Hansberry v. Lee, 311 U.S. 32, 61 S. Ct. 115, 85 L. Ed. 22 (1940). It is not `fatal if some members of the class might prefer not to have violations of their *1132 rights remedied.'") (quoting United States Fidelity & Guaranty Corp. v. Lord, 585 F.2d 860, 873 (8th Cir.1978));[13]Wilder v. Bernstein, 499 F. Supp. 980, 993 (S.D.N.Y. 1980) ("The fact that some members of the class may be satisfied with the existing system and may prefer to leave the violation of their rights unremedied is simply not dispositive of a determination under Rule 23(a).").
The circumstances of this particular case augment the Court's conclusion that the interests of the class are not antagonistic to those of the named plaintiffs. See Nat'l Ass'n for Mental Health, Inc. v. Califano, 717 F.2d 1451, 1458 (D.C.Cir.1983) (disqualification under Rule 23(a)(4) requires "antagonistic or conflicting interests with the unnamed members of the class"). Should the plaintiffs succeed in their challenge to the Act, those members of the class who favor the curfew will not be affected in the least; they may still unilaterally obey the Act's time limits and thereby further each of the objectives articulated in § 3 of the Act.[14] The "conflict" or "antagonism" present here is thus largely theoretical; it is fundamentally different from the situation in which a successful class suit would somehow alter the rights or obligations of the dissenting class members.
For the foregoing reasons, the Court concludes that the plaintiffs have satisfied the prerequisites to maintenance of a class action, and will order the certification of such a class in accordance with the plaintiffs' request.
III. Constitutionality of the District's Curfew Legislation
The plaintiffs' challenge to the Act contains four essential components. The first, and the centerpiece of this lawsuit, is the plaintiffs' claim that the Act infringes upon the First and Fifth Amendment rights of thousands of minors who live or visit the city but who have not engaged, and never will engage, in any type of illegal behavior. Because of this, the plaintiffs argue that the Act is unconstitutionally overbroad on its face. The second component is the plaintiffs' claim that enforcement of the Act would subject minors and near-minors to unreasonable searches and seizures in violation of their Fourth Amendment rights. The plaintiffs' third argument is that the Act violates minors' rights to equal protection by drawing an unjustifiable distinction between minors and non-minors. Fourth, and finally, the plaintiffs contend that the Act burdens the rights of parents (and others acting in loco parentis) to shepherd their childrens' upbringing, and thereby infringes upon such persons' Fifth Amendment liberty and privacy interests. The Court finds for the plaintiffs under its First Amendment, due process and equal protection claims, but rejects plaintiffs' Fourth Amendment claim. In light of these holdings, the Court does not reach the plaintiffs' claim that the act intrudes upon the due process rights of parents of juveniles subject to the Act, although this contention may also have some merit in the context of this case.
A. First Amendment and Fifth Amendment Challenge
The plaintiffs first contend that the Act is substantially overbroad, and thus violates the First and Fifth Amendments on its face. Although the Court agrees that the Act is in facial violation of the associational rights of minors, as well as of minors' fundamental liberty interests, the Court does not agree that an overbreadth analysis is appropriate in this instance. *1133 The Court first discusses its reasoning on this issue, and then proceeds to describe why the Act is nevertheless facially invalid under the First and Fifth Amendments.
The plaintiffs contend that the Act, by rendering illegal myriad activities that would otherwise find protection under the First and Fifth Amendments, is substantially overbroad and thus facially unconstitutional. See City of Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 2508, 96 L. Ed. 2d 398 (1987) (statutes "that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application"); Thornhill v. Alabama, 310 U.S. 88, 97, 60 S. Ct. 736, 741, 84 L. Ed. 1093 (1940) (a law is void on its face if it "does not aim specifically at evils within the allowable area of [government] control, but ... sweeps within its ambit other activities that constitute an exercise" of First Amendment rights). Even if the District's goals in effecting a curfew are proper, and even if it is possible to isolate some nucleus of activity against which the Act may properly be directed, the plaintiffs contend that the District may not sacrifice the legitimate constitutional interests of the many to punish the few.
In framing their case as an overbreadth challenge, the plaintiffs seem to ignore the fact that the overbreadth doctrine is essentially a jus tertii device; it evolved in order to permit one properly charged under a statute to raise the First Amendment rights of others, not charged, whose associational or expressive rights might be chilled by enforcement of overly broad legislation. However, when, as here, the plaintiffs are themselves engaged in protected activity when the challenged statute would have no greater impact upon the rights of nonparties than it would have upon the rights of the parties before the Court there is no need to employ a traditional overbreadth analysis. See, e.g., City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801-02, 104 S. Ct. 2118, 2126-27, 80 L. Ed. 2d 772 (1984); NAACP v. Richmond, 743 F.2d 1346, 1352 (9th Cir.1984); Brandt v. State Farm Mutual Auto Ins. Co., 693 F. Supp. 877, 881-82 (E.D.Cal.1988). See also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502, 105 S. Ct. 2794, 2801, 86 L. Ed. 2d 394 (1985) (traditional overbreadth analysis inapplicable where "the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish"). The inapplicability of the overbreadth doctrine is particularly acute in this case, where a plaintiff class has been certified which, in essence, includes everyone who might be affected by the Act.[15]
The plaintiffs' effort to shoehorn traditional overbreadth analysis into this case is essentially an attempt to secure a particular remedy: facial invalidation of the Act as a whole. However, the plaintiffs need not rely upon a traditional overbreadth analysis to achieve this result. If the Act so egregiously intrudes upon constitutional interests that it is impossible to segregate permissible applications from impermissible applications, see Sec'y of State of Maryland v. Munson, 467 U.S. 947, 965-68, 104 S. Ct. 2839, 2846, 81 L. Ed. 2d 786 (1984), or if the Act cannot be applied in a way that does not quash constitutional freedoms, see Taxpayers for Vincent, 466 U.S. at 796-97, 104 S.Ct. at 2124-25 (1984) (citing cases), then the Court may invalidate the Act on its face, rather than merely as applied. This form of direct "facial" challenge exists separate and apart from an "overbreadth" challenge. Indeed, any other result would have the ironic effect of granting greater powers of statutory invalidation *1134 to those whose activities are unprotected than to those whose activities are protected. See H. Hart & H. Wechsler, The Federal Courts and the Federal System, 194-95 (3d ed. 1988).
In this case, the plaintiffs' challenge to the Act is more in the nature of a direct facial attack than a traditional overbreadth attack, and the Court will treat it as such. Employing this analysis, it is apparent that the Act involves such a wide and indiscriminate denial of the First and Fifth Amendment rights of juveniles that it cannot be constitutionally applied. It must fall in its entirety.
The right to walk the streets, or to meet publicly with one's friends for a noble purpose or for no purpose at all and to do so whenever one pleases is an integral component of life in a free and ordered society. Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S. Ct. 839, 844, 31 L. Ed. 2d 110 (1972); Bykofsky v. Borough of Middletown, 429 U.S. 964, 97 S. Ct. 394, 50 L. Ed. 2d 333 (1976) (Marshall, J., dissenting from denial of certiorari); Coates v. City of Cincinnati, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971). This right is rooted in the First Amendment's protection of expression and association, as well as (in this case) the Fifth Amendment's protection of fundamental liberty interests under the doctrine of substantive due process. See, e.g., Coates, 402 U.S. at 615, 91 S.Ct. at 1689 (considering right of association under First and Fourteenth Amendments); Aptheker v. Sec'y of State, 378 U.S. 500, 520, 84 S. Ct. 1659, 1671, 12 L. Ed. 2d 992 (1964) (Douglas, J., concurring) ("Freedom of movement is kin to the right of assembly and to the right of association.").[16] One has the right to move about, certainly in order to partake of activities that expand the mind and the soul, but also because the right to move about if even for no reason is a cherished end in itself. See Papachristou, 405 U.S. at 164, 92 S.Ct. at 844 (1972); Gomez v. Turner, 672 F.2d 134, 143-44 n. 18 (D.C.Cir.1982) ("That citizens can walk the streets, without explanation or formal papers, is surely among the cherished liberties that distinguish this nation from so many others.").
The Act casts these rights aside like so much straw. The Act subjects the District's juveniles to virtual house arrest each night without differentiating either among those juveniles likely to embroil themselves in mischief, or among those activities most likely to produce harm. The Act is a bull in a china shop of constitutional values.
A brief review of the record indicates the extent to which the Act tramples upon the associational and liberty interests of the named plaintiffs. These plaintiffs have been, and hope in the future to be, involved with high school social activities,[17] political activities,[18] scientific endeavors,[19] and religious pursuits[20] which often require their presence on the District's streets during the curfew period. Absent registration, these activities would disappear were the *1135 Act enforced. Moreover, the specific examples contained in the record say nothing of the countless legitimate but undocumented pursuits which would be denied juvenile members of the plaintiff class if the Act were enforced. The right to a late-night game of basketball, to sit in the open air on a muggy summer night, or to walk home at one's leisure from an unregistered church or synagogue, or from a party at a friend's home, would all be denied. As the court in McCollester v. City of Keene, 586 F. Supp. 1381 (D.N.H.1984), stated in striking down a juvenile curfew law, "[e]ven a juvenile on a solitary, totally innocent excursion with parental permission, such as stargazing, sitting on the sidewalk near his house, or taking a late evening walk during curfew hours would be in violation of the ordinance." Id. at 1385. The court in McCollester concluded that the Constitution will not abide such a result, and this Court agrees.
As the District properly points out, the rights at issue here are not absolute.[21] Yet, as the plaintiffs just as properly respond, when government undertakes to limit these rights in some manner, it must act gingerly; it must do so in a manner that is narrowly focused on the harm at hand, as well as sensitive to needless intrusions upon the constitutional interests of the innocent. See Roberts v. United States Jaycees, 468 U.S. 609, 623, 104 S. Ct. 3244, 3252, 82 L. Ed. 2d 462 (1984) (First Amendment right of association); Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S. Ct. 1659, 1664, 12 L. Ed. 2d 992 (1964) (legitimate state end "cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved") (quoting Shelton v. Tucker, 364 U.S. 479, 488, 81 S. Ct. 247, 252, 5 L. Ed. 2d 231 (1960)).
The Act fails this test. The District has sought to achieve its objectives by means of a device that "broadly stifle[s] fundamental personal liberties." The Court recognizes that, in the eyes of many, the crippling effects of crime demand stern responses. With the Act, however, the District has chosen to address the problem through means that are stern to the point of unconstitutionality. Rather than a narrowly drawn, constitutionally sensitive response, the District has effectively chosen to deal with the problem by making thousands of this city's innocent juveniles prisoners at night in their homes.
The District defends the reasonableness of its response by emphasizing two essential points: (1) the fact that the Act contains several exceptions to its prohibition of nocturnal activity; and (2) the allegedly reduced constitutional interests of juveniles under these circumstances.
It is true that the Act's prohibitions are not absolute. The Act exempts minors traveling in automobiles,[22] minors accompanied by parents (but not others), minors returning by a direct route from a pre-registered religious or other non-profit activity, so long as it is within 60 minutes of the activity's termination, a minor engaged in legitimate employment who has on his person a valid work or theatrical permit, and a minor required by "reasonable necessity" to conduct an emergency errand relating to the health of a family member, so long as the minor has, if practicable, a note from a parent to that effect.
These exemptions represent a laudable effort on the District's part to conform the Act to the requirements of the Constitution. Indeed, the Act's legislative history makes clear that the Act, and particularly its exceptions, are patterned, albeit imprecisely, upon those contained in a juvenile curfew ordinance that withstood a constitutional challenge in Bykofsky v. Borough of Middletown, 401 F. Supp. 1242 (M.D.Pa. *1136 1975), aff'd without op., 535 F.2d 1245 (3d Cir.1976), cert. denied, 429 U.S. 964, 97 S. Ct. 394, 50 L. Ed. 2d 333 (1976). Although the Act's exceptions do not parallel those contained in the Middletown ordinance in every respect,[23] the similarities between the two curfews make clear that much of the activity permissible under the Middletown ordinance also would be permissible under the Act.[24]
Yet, it is what these curfews restrict, and not what they exempt, that matters most. The Act, even with its exemptions, prohibits every innocent juvenile in the District of Columbia from moving about this city as he or she pleases at night. Although the recent arguments in this Court might suggest otherwise, the Court remains certain that the number of such innocent juveniles far exceeds the number of juveniles in this city who might be bent on nighttime crime. The restriction, although perhaps by its nature silent, would be massive. Every juvenile in the District of Columbia would be arrested if he or she sought to wander the monuments at night, or if he or she sought to gaze at the stars from a public park. The Act's exemptions are substantial and constitutionally significant; yet, in the final analysis, the Act cannot help but "broadly stifle" the fundamental liberty interests of thousands of perfectly innocent, law-abiding juveniles who live in or who may visit the District of Columbia. From a First Amendment perspective, the Court cannot agree that the wholesale restriction of these juveniles' rights is "no greater than is essential" to furtherance of the District's interests. United States v. O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672 (1968) (test for laws which incidentally impact upon protected First Amendment interests).
The District's reliance upon the Bykofsky decision also suggests agreement with Bykofsky's conclusion that the constitutional interests of minors are somehow less compelling than those of adults in this context. Bykofsky, 401 F.Supp. at 1256. The Bykofsky court's conclusion on this point is inseparable from its finding that the Middletown ordinance did not violate the due process rights of Middletown's minors. This Court, however, cannot agree with Bykofsky that the constitutional rights of minors are less deserving of constitutional protection than those of adults under these circumstances. The Court thus disagrees with the result of the Bykofsky court's due process balancing test.
In Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979), a plurality of the Supreme Court articulated a general framework for determining when the state may give less deference to the constitutional rights of minors than to those of adults. The plurality noted three factors which may justify differential treatment in a given case: (1) "the peculiar vulnerability of children"; (2) "their inability to make crucial decisions in an informed, mature manner"; and (3) "the importance of the parental role in childrearing." Id. at 633-39, 99 S.Ct. at 3042-46.[25] An application of *1137 these criteria in this case makes clear that there is no basis for treating juveniles differently than adults; accordingly, the Act must fall.
As to the first factor, it is obvious that the plague afflicting the District poses no peculiar danger to children; those thousands of the District's juveniles who engage in wholly legitimate nocturnal activities are no more endangered in the current climate than are the District's adults. The violence is ubiquitous; it afflicts all of us. The Court therefore sees no reason to place a peculiar burden upon the constitutional rights of children, particularly when to do so would involve the deprivation of so much that may be valuable. See Johnson, 658 F.2d at 1073. See also, Note, Assessing the Scope of Minors' Fundamental Rights: Juvenile Curfews and the Constitution, 97 Harv.L.Rev. 1163, 1176 (1984) (a juvenile curfew "is an attempt to shelter [juveniles] from some unspecified future harm an attempt that simultaneously forecloses many beneficial opportunities.").
The second factor is juveniles' "inability to make critical decisions in an informed, mature manner." The Bellotti Court elaborated: in certain situations, the state may "limit the freedom of children to choose for themselves in the making of important, affirmative choices with potentially serious consequences." Id. at 635, 99 S.Ct. at 3043. In this Court's view, the decision to either stay inside or roam at night simply does not present the type of profound decision which Bellotti would leave to the state. A decision to leave the house at night does not ineluctably lead to nighttime violence; in all but the exceptional case, nocturnal activities, even by juveniles, will not have "serious consequences." For some, obviously, it will but the decisions of these juveniles to engage in criminal activities is utterly different than, and made long prior to and for reasons wholly separate from, their decisions to leave their homes either before or after 11:00 p.m.
The final Bellotti factor is the importance of the parental role in child-rearing. The District's curfew rests upon the implicit assumption that the traditional family unit, in which parents exercise control over their childrens' activities, has dissolved in many areas of this city. The Court has no doubt that such an assumption may be accurate with respect to many of this city's "families." Nevertheless, this assumption ignores the many thousands of the District's families for whom the ideal of family unity and parental control still lives. As to these families, struggling against the pressures of modern life, the Act gracelessly arrogates unto itself and to the police the precious rights of parenthood. Rather than furthering the parental role in childrearing, the Court views the Act as frustrating the parental role in the vast majority of the District's families. See Johnson, 658 F.2d at 1073-74.
Applying the Bellotti factors, the Court thus holds that the context in which the District seeks to enforce the Act does not justify differentiating between the constitutional rights of minors and adults. This conclusion lends further support to the Court's finding that the Act, if enforced, would unconstitutionally burden on its face the First Amendment and Fifth Amendment due process rights of thousands of innocent juveniles in the District of Columbia.[26] However laudable the objectives which motivated its adoption, the Act is invalid on its face and may not be enforced.
B. Fourth Amendment Challenge
The plaintiffs challenge on Fourth Amendment grounds those provisions of the Act which permit the arrest and detention of juveniles if they are unable to document: *1138 (1) that they are properly on the street during the curfew period, or (2) that they are older than 18 years of age. The plaintiffs contend that the Act, by permitting such arrests and detentions, "repeals pro tanto the Fourth Amendment's protection of [juveniles], for ordinarily the police cannot constitutionally demand, on pain of arrest and detention, that a person whose behavior is in no way suspicious stop and provide identification." The plaintiffs argue that the Act "authorizes massive and utterly groundless seizures of young adults in the District of Columbia." Plaintiffs' Mem. in Support of Renewed Motion for Summary Judgment at 31-32.[27]
The Court disagrees. The plaintiffs' argument reflects, in essence, an attempt to find in the Fourth Amendment an absolute right to be free from searches and seizures, a right that cannot be limited by the government's power to criminalize certain forms of behavior. The Court finds no such absolute right in the Fourth Amendment. Instead, as the very language of the Fourth Amendment provides, a right to be free from such intrusions exists only so long as there is not probable cause to believe that an offense has been committed.
Here, the District has attempted to criminalize the public presence of juveniles during the curfew hours. Were they not otherwise unconstitutional, the proscriptions of the Act would provide, in fact, valid substantive references for determining the presence or absence of probable cause in a given case.[28] Although the purported crime is utterly simple nocturnal, public youth that simplicity causes the type of proof required to justify a search or seizure to be similarly uncomplex. Thus, were a police officer to reasonably conclude that an individual looked "young" that he or she looked like a minor the officer would have "probable cause" to believe that the individual was engaged in an illegal act, i.e., being on the streets during the curfew period. If the individual could not prove that he or she was over 18, or that he or she fell within one of the Act's other exceptions, the officer would be entitled to place the individual under arrest. So long as the officer could reasonably have believed that the individual looked "young," the search, seizure or arrest would take place on the basis of probable cause and no Fourth Amendment violation would occur.
The Court thus rejects the plaintiffs' contention that the Act violates the Fourth Amendment on its face.
C. Equal Protection Challenge
The plaintiffs contend that the Act, by drawing an impermissible distinction between juveniles and non-juveniles, violates the equal protection component of the Fifth Amendment. The Court agrees.
In order to survive an equal protection challenge, a statute which neither affects a fundamental right nor creates a "suspect" class need only show that it bears "some rational relationship to a legitimate state purpose." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 40, 93 S. Ct. 1278, 1300, 36 L. Ed. 2d 16 (1973). When, however, the challenged statute does create a suspect class, or when it does impinge upon a fundamental personal right protected by the Constitution, a higher level of scrutiny is required. When legislation burdens a suspect class, "strict scrutiny" is applied; the law will be sustained only if it is narrowly tailored to serve a compelling state interest. McLaughlin v. Florida, 379 U.S. 184, 192, 85 S. Ct. 283, 288, 13 *1139 L.Ed.2d 222 (1964). "Similar" review is required when the challenged statute infringes upon a constitutionally protected interest. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985) (citing cases).
This Court has concluded herein that the Act directly burdens the First Amendment rights and Fifth Amendment liberty interests of the thousands of innocent minors who reside in or who may visit the District of Columbia. Accordingly, more than mere rationality is required; the standard applicable to the District's exercise of legislative judgment in this instance is whether the Act is narrowly tailored to serve a compelling governmental interest. While the District was undeniably motivated by a compelling governmental interest in adopting the Act, the Court is unable to conclude that the Act is narrowly tailored to serve that interest.
The articulated purpose of the Act is to protect juveniles from harm, to insulate them from the evils of the street. More broadly, of course, the unstated objective of the Act is to reduce the level of violence occurring in our city. The Act's distinction between juveniles and non-juveniles, however, furthers none of these objectives in a rational way, much less in a way that is narrowly tailored to reflect the nature of the problem. When fundamental interests are at stake, as here, the classification chosen bear an intimate relationship to the problem. Logic and the unrebutted evidence in the record, however, indicate that in this instance no such relationship exists. Indeed, it might even be said that, "in practical effect, the challenged classification simply does not operate so as rationally to further" the Act's express objectives. United States v. Moreno, 413 U.S. 528, 537, 93 S. Ct. 2821, 2827, 37 L. Ed. 2d 782 (1973).
Logic is perhaps most fatal to the Act's constitutionality. In order to reasonably effectuate its ends, the Act must correctly assume that those juveniles who currently leave their homes at night to engage in drug trafficking, or to engage in other illegal, violent behavior, will be deterred from doing so by the existence of a curfew law. The naivete of such an assumption is striking.[29] Virtually everything that the Act seeks to thwart violence, trade in illicit narcotics is already illegal, and carries sanctions far more painful than a night of detention. Logic thus suggests that the only juveniles for whom the Act will likely have meaning will be those already inclined to obey the law. When fundamental interests are at stake, this inversion of anticipated effects renders the Act constitutionally unacceptable.
Moreover, the record indicates that the challenged classification bears little relation to the nature of the problem. In 1988, of the 26 juveniles killed in the District (out of 372 total killed, or 7%), not one was clearly killed at a time or place that he or she would not have been had the curfew been in effect.[30] Precisely half of these killings occurred in the juvenile's home.[31] As the plaintiffs point out, this would suggest that it is as dangerous in one's home as it is in the street. Moreover, according to the District's own figures, approximately half of the homicides in the District between 1985 and 1988 occurred during non-curfew hours.[32] The daytime would therefore appear to be just as hazardous as the night, at least in terms of homicides. Although these figures certainly paint a picture of a troubled city, they suggest that measures such as the Act are simply not so closely related to the protection of minors, or to curing the city's problems with drugs and violence, as to justify the infringement of constitutional interests.
*1140 Because neither logic or the record permit the conclusion that the classification contained in the Act is narrowly tailored to achieve its expressed objectives, the Court concludes that the Act violates the equal protection component of the Fifth Amendment.[33]
IV. Conclusion
There are no material facts in dispute; accordingly, summary judgment is appropriate as a matter of law under Fed.R. Civ.P. 56. As indicated, the Court holds that the plaintiffs are entitled to summary judgment on their claims under the First and Fifth Amendments, but that the defendants are entitled to summary judgment on the plaintiffs' claims under the Fourth Amendment. The Court further holds that the plaintiffs are entitled to certification of a class as defined herein. The Court will issue an Order in accordance with the foregoing.
ORDER
Upon consideration of the motions and memoranda submitted by the parties to the above-captioned action, and after hearing oral argument, it is, by the Court, this 24th day of May, 1989,
ORDERED, that the plaintiffs' motion for class certification pursuant to Fed.R. Civ.P. 23(a) and 23(b)(2) shall be, and hereby is, granted, and that the plaintiff class shall include all minors in the District of Columbia, all parents of minor children in the District of Columbia, all step-parents, grandparents, uncles, aunts, adult friends and other adults who will be prevented from acting in loco parentis to minors in the District of Columbia during curfew hours, all young adults in the District of Columbia who might appear to a police officer to be minors, all for-profit corporations that will suffer harm because of the discrimination against them in the curfew law, and all persons and organizations whose exercise of political, cultural, religious or associational activities will be impaired because of the application of the curfew law to them, their co-religionists or associational companions; and it is further
ORDERED, that, for the reasons contained in the Opinion of the Court issued on this date, the plaintiffs' motion for summary judgment shall be granted as to those claims arising under the First and Fifth Amendments to the United States Constitution, and plaintiffs' motion as to those claims arising under the Fourth Amendment shall be, and hereby is, denied; and it is further
ORDERED, that, for the reasons contained in the Opinion of the Court issued on this date, the defendants' motion for summary judgment shall be denied as to those claims arising under the First and Fifth Amendments to the United States Constitution, and defendants' motion as to those claims arising under the Fourth Amendment shall be, and hereby is, granted; and it is further
ORDERED, that the District of Columbia "Temporary Curfew Emergency Act of 1989" shall be, and hereby is, declared unconstitutional, void and unenforceable; and it is further
ORDERED, that the defendants and each of them, their agents, servants, and employees, and all persons acting under their direction or in concert with them, are hereby permanently restrained and enjoined from implementing or enforcing in any manner the terms of the District of Columbia "Temporary Curfew Emergency Act of 1989"; and it is further
ORDERED, that the Clerk of the Court shall return to plaintiffs the $100 cash bond posted by them in this action on March 20, 1989; and it is further
ORDERED, that the defendants shall pay to plaintiffs their costs and reasonable attorney's fees herein, upon plaintiffs' application *1141 therefore, which shall be filed within 40 days of the date of this Order; and it is further
ORDERED, that the Court shall retain jurisdiction over this matter in order to determine whether the plaintiffs' complaint should be amended in the manner requested in their motion filed May 18, 1989.
APPENDIX A
Codification, District of Columbia Code (1989 Supp.)
AN ACT
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IN THE COUNCIL OF THE DISTRICT OF COLUMBIA
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To impose, on an emergency basis, a curfew on minors in the District of Columbia.
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Temporary Curfew Emergency Act of 1989".
Sec. 2. Definitions.
(a) "Parent" means a natural or adoptive parent or any person who has legal custody by court order or by marriage.
(b) "Minor" means any person under the age of 18 years, but does not include a judicially emancipated minor.
(c) "Narcotic trafficking" means the act of engaging in any prohibited activity related to narcotic drugs or controlled substances as defined in the District of Columbia Uniform Controlled Substances Act of 1981, effective August 5, 1981 (D.C. Law 4-29; D.C.Code, sec. 33-501 et seq.).
Sec. 3. Purpose.
(a) The purpose of this act is to protect the welfare of minors by:
(1) Reducing the likelihood that minors will be the victims of criminal acts during the curfew hours;
(2) Reducing the likelihood that minors will become involved in criminal acts or exposed to drug trafficking during the curfew hours; and
(3) Aiding parents in carrying out their responsibility to exercise reasonable supervision of the minors entrusted to their care.
Sec. 4. Curfew; authority and enforcement.
(a) The Council of the District of Columbia ("Council") imposes a curfew on minors in the District of Columbia ("District") between the hours of 11:00 p.m. and 6:00 a.m. each day, except that on Friday and Saturday evenings the curfew shall commence at 11:59 p.m. ("curfew hours").
(b) It shall be unlawful for a parent knowingly to permit or, by negligent failure to exercise reasonable control, allow his or her minor child to remain on any street, sidewalk, park, or other outdoor public place within the District during the curfew hours.
(c) It shall be unlawful for any minor to remain in or upon any street, sidewalk, park, or other outdoor public place in the District during the curfew hours.
(d) This section shall not apply:
(1) When a minor is accompanied by a parent;
(2) When a minor is returning home by way of a direct route from an activity that is sponsored by an educational, religious, or non-profit organization within 60 minutes of the termination of the activity, if the activity has been registered with the Mayor in advance;
(3) When a minor is traveling in a motor vehicle;
(4) When a minor is acting within the scope of legitimate employment pursuant to An Act To regulate the employment of minors within the District of Columbia, approved May 29, 1928 (45 Stat. 998; D.C. Code, sec. 36-501 et seq.), and the minor has in his or her possession a copy of a valid work or theatrical permit or an affidavit from the employer; or
(5) When, due to reasonable necessity:
(A) A minor who is a custodial parent is engaged in an emergency errand that is directly related to the health or safety of *1142 his or her child and the minor describes the nature of the health or safety emergency; or
(B) A minor is engaged in an emergency errand and the minor has in his or her possession, if practicable, a written statement signed by the parent, which states that the errand is directly related to the health or safety of the parent or family member and that describes the nature of the errand and the health or safety emergency.
(e) If a police officer determines, based on all the information reasonably available, including any information offered by the person, that the person is under the age of 18 years, remains in or upon a street, park, or other outdoor public place in the District during the curfew hours, and none of the exceptions set forth in section 4 applies, the police officer shall take the person to the nearest available Police District headquarters. The police officer shall not handcuff the person when taking him or her to the nearest Police District headquarters as a result of a violation of this act.
(f) A minor who violates this act shall be detained by the Metropolitan Police force at the nearest available Police District headquarters and released into the custody of the minor's parent. The minor's parent or an adult person acting in loco parentis with respect to the minor shall be called to the Police District headquarters to take custody of the minor. A minor who is released to a person acting in loco parentis with respect to the minor shall not be taken into custody for violation of this act while returning home with the person acting in loco parentis. If no one claims responsibility for the minor, the minor shall be detained at the nearest available police district headquarters in a room that is not a cell or placed in the custody of the appropriate official of the Family Services Administration of the Department of Human Services and released at 6:00 a.m. that morning.
(g) A parent who violates this act shall be subject to a fine of not more than $100 for the second offense or $300 for any subsequent offense. No person shall be fined for the first violation of this act.
Sec. 5. Review Process.
(a) Five days, excluding Saturdays, Sundays, holidays and days of Council recess, prior to the expiration of this act, the Mayor shall report to the Council on the curfew's effectiveness and shall recommend that the curfew for minors either be continued or discontinued.
(b) Criteria by which effectiveness shall be measured include monthly statistics, by ward and police precinct, on:
(1) The number of minors detained and the number of persons fined as a result of a violation of this act;
(2) The number of criminal homicides and other narcotic trafficking related crimes of violence committed during the time that this act is in effect, by age and time of day; and
(3) The number of minors injured during the curfew hours as a result of crime and the cause of each injury.
Sec. 6. Records sealed.
Any law enforcement records or files of a minor attendant to a violation of this act shall be sealed by the Metropolitan Police force when the minor reaches the age of majority.
Sec. 7. Repeal.
The Short Term Curfew Emergency Act of 1989, effective March 15, 1989 (D.C. Act 8-5; to be codified at D.C.Code, sec. 6-1509 et seq.), is repealed.
Sec. 8. This act shall take effect upon its enactment (approval by the Mayor, or in the event of veto by the Mayor, override of the veto by the Council) and shall remain in effect for no longer than 90 days, as provided for emergency acts of the Council of the District of Columbia in section 412(a) of the District of Columbia Self-Government and Governmental Reorganization Act, approved December 24, 1973 (87 Stat. 788; D.C.Code, sec. 1-229(a)).
*1143
(s) David Clark
Chairman
Council of the District of
Columbia
__________________
Mayor
District of Columbia
NOTES
[1] The statute currently before the Court is the Temporary Curfew Emergency Act of 1989, No. 8-325. The Council of the District of Columbia approved the statute on April 4, 1989, and Mayor Marion Barry signed it on April 14, 1989. The full text of the statute is attached hereto as Appendix A.
[2] These hours would obtain on weekdays; on Fridays and Saturday evenings, the curfew would begin at midnight.
[3] The record indicates that City Councilman Frank Smith, the moving force behind the drive for a curfew, has introduced, and the City Council has approved, a slightly revised version of the Act which would have a 255-day term rather than a 90-day term. That statute is now before Congress pursuant to D.C.Code § 1-233(c)(1); if Congress does not disapprove the statute within 30 days, the statute will become effective. The plaintiffs have moved to amend their complaint to challenge the statute now before Congress, as well as the Act. The Court, however, will not rule on the plaintiffs' motion to amend until the District has responded, something the District has not done as of this writing. This being the case, the Court will retain jurisdiction over this matter (i.e., the case will not be dismissed, notwithstanding the decision reached herein) until the Court has had the benefit of full briefing on the plaintiffs' motion to amend.
[4] The plaintiffs' initial complaint challenged the Short Term Curfew Emergency Act of 1989, a predecessor to the Act which the Council had enacted on February 28, 1989. This Court enjoined enforcement of the Short Term Act on March 20, 1989. After the Court's action, the Council returned to the drawing board and subsequently produced the Act, which, upon its adoption, repealed the Short Term Act. The plaintiffs immediately amended their complaint to incorporate a challenge to the Act. This latter challenge is the one now before the Court.
[5] It is perhaps worth noting that the District has established relatively detailed regulations intended to guide the Metropolitan Police Department in enforcing the provisions of the Act. It thus appears that the District has every intention of vigorously enforcing the Act should it be found free of constitutional defects.
[6] Although the District's precise reasoning is not always clear, it appears that the District places greatest reliance upon the "ripeness" aspect of the justiciability doctrine.
[7] The District's "justiciability" argument shares to some extent the qualities of an argument that the Court should abstain from deciding this matter until the "state" courts of the District of Columbia are able to give the Act a definitively constitutional construction. The thread common to both arguments is the hope that an "as applied" record, coupled with a "state"-level judicial interpretation of the Act, would provide sufficient concreteness to satisfy Article III, as well as allay any federalism concerns that an immediate adjudication in this Court might generate. Setting aside the issue of whether the typical federalism concerns are present when the District of Columbia is involved, the Court simply notes that abstention appears to be disfavored when serious facial challenges are made to statutes under the First Amendment. See City of Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 2512-13, 96 L. Ed. 2d 398 (1987) (abstention inappropriate where facial challenge made to unambiguous statute); Dombrowski, 380 U.S. at 489-90, 85 S.Ct. at 1122-23.
[8] Cf. Clements v. Fashing, 457 U.S. 957, 962, 102 S. Ct. 2836, 2843, 73 L. Ed. 2d 508 (1982) (justiciable case or controversy where "appellees have alleged in a precise manner that, but for the sanctions of the constitutional provision they seek to challenge, they would engage in the very acts that would trigger the enforcement of the provision").
[9] The District has indicated that it intends to expunge any record of an arrest pursuant to the Act that might be contained in a juvenile's file once the juvenile reaches the age of 18. Nevertheless, the Court takes judicial notice of the fact that we live in a computerized information society in which little or nothing can be hidden. The fact of an arrest pursuant to the Act, despite expungement of the official record of that arrest from a juvenile's file, may haunt a juvenile years later when he or she may be required to either lie or disclose the arrest in any of the hundreds of applications and other forms that we all fill out in the course of our lives. Employment and insurance application forms, as well as forms for admission to the District of Columbia bar, are examples of that come readily to mind.
[10] Although the plaintiffs' immediate rationale for seeking class certification is apparenta desire to avoid a potential mootness problem as the matter progressesthe Court is less certain as to why the District has chosen to oppose such certification. Given that the plaintiffs' challenge to the Act is a facial challenge, which seeks only declaratory and injunctive relief, it seems that the District would derive no benefit from defeating the plaintiffs' class certification request. To the contrary, a certified class would seem effectively to preclude subsequent challenges by differently situated defendants should the District prevail, either in this Court or on appeal. The Court wonders if the District has opposed the putative class merely "because the plaintiffs requested it, and [they] always oppose everything plaintiffs request[]." See Wilton, The Class Action in Social Reform Litigation: In Whose Interest?, 63 B.U.L.Rev. 597, 599-600 (1983) (suggesting that Rule 23(b)(2) classes always benefit defendants and disadvantage plaintiffs).
[11] In particular, the District cites several letters from prominent community leaders which ask the Mayor and the Council to adopt a curfew. See Defendants' Exhibit G (letter from Judy Fredette, Advisory Neighborhood Commissioner); Defendants' Exhibit H (letter from Tony Nichelson, Chairman of the Youth Offender Outreach Project for Concerned Black Men, Inc.).
[12] Although the District apparently seeks to bifurcate its position into separate arguments under both Rule 23(a)(3) and 23(a)(4), the Court regards the gist of the District's argument that the interests of the named plaintiffs are not perfectly congruent with those of each member of the class as arising under Rule 23(a)(4). As stated in Horton v. Goose Creek Ind. School Dist., 690 F.2d 470, 485 n. 27 (5th Cir.1982):
Intra-class antagonisms may be analyzed under either Rule 23(a)(4), the adequacy requirement or Rule 23(a)(3), the typicality requirement.... The requirements are closely related, for demanding typicality on the part of the representative helps ensure his adequacy as a representative. We prefer to analyze the question of intra-class antagonism under the requirement that the representative protect adequately the interests of the class rather than under the requirement that his claims be typical, because each class member has the claim asserted by the plaintiffs, so the plaintiffs' claims are typical, but many members do not see it as in their best interests to assert that claim. The real question then is whether, in spite of the typicality of their claims, the named plaintiffs can adequately represent the interests of the class, including any interest in not asserting claims.
[13] It is worth noting that the District's opposition to the proposed class places principal reliance upon Hansberry v. Lee, 311 U.S. 32, 61 S. Ct. 115, 85 L. Ed. 22 (1940).
[14] Section 3 of the Act states as follows:
(a) The purpose of this act is to protect the welfare of minors by:
(1) Reducing the likelihood that minors will be the victims of criminal acts during the curfew hours;
(2) Reducing the likelihood that minors will become involved in criminal acts or exposed to drug trafficking during the curfew hours; and
(3) Aiding parents in carrying out their responsibility to exercise reasonable supervision of the minors entrusted to their care.
[15] The Court recognizes that a traditional overbreadth analysis appears to have been employed in several of the decisions which have previously considered the constitutionality of juvenile curfew statutes. See, e.g., Johnson v. City of Opelousas, 658 F.2d 1065, 1071 (5th Cir.1981); McCollester v. City of Keene, 586 F. Supp. 1381, 1385 (D.N.H.1984); Ruff v. Marshall, 438 F. Supp. 303 (M.D.Ga.1977); Allen v. City of Bordentown, 216 N.J.Super. 557, 524 A.2d 478, 482-84 (1987). Nevertheless, the Court is of the view that, while the remedy ultimately adopted in each facial invalidation may have been appropriate, the precise mode of analysis was to some extent flawed.
[16] The District cites the Supreme Court's recent decision in City of Dallas v. Stanglin, ___ U.S. ___, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989), for the proposition that (1) the activities at issue here are not protected under the First Amendment, and (2) the Court should therefore apply a rational basis test in evaluating the plaintiffs' equal protection challenge. See infra Section III(C). The Court disagrees. While Stanglin may exclude some of the nocturnal activities proscribed by the Act from First Amendment protection, it by no means establishes that the Act is therefore constitutional. The issue in Stanglin was whether "chance encounters in dance halls," involving "hundreds of teenagers," would find protection within the First Amendment. The Supreme Court determined that they do not. Unlike the ordinance at issue in Stanglin, however, the Act operates in much more of a blunderbuss fashion; while it proscribes "chance encounters" in dance halls and other forms of random association, it would also effectively prohibit on its face forms of nocturnal expression and association that would clearly fall within the ambit of the First Amendment. Given that the Act is much broader than the ordinance addressed in Stanglin, it does not follow from Stanglin that the Act does not violate the First Amendment on its face, or that a rational basis test should be employed in evaluating the plaintiffs' equal protection challenge.
[17] See Declaration of David Dranitzke at 3.
[18] See Declaration of Franklin Foer at 1-2.
[19] See Declaration of Maxwell Mirell at 1-2.
[20] See Declaration of Franklin Foer at 2-3.
[21] The District's argument focuses exclusively upon the First Amendment. The District nowhere squarely addresses the due process analysis employed in cases such as Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir.1981) (addressing both First Amendment and due process aspects of curfew law) and McCollester v. City of Keene, 586 F. Supp. 1381, 1384 (D.N.H.1984) (addressing only due process aspect of curfew law).
[22] The Council's discussion of the Act indicates that it intended the automobile exception to pertain to travel on the Metro and the city's busses.
[23] This Court has previously recited the various ways in which the Act and the Middletown ordinance diverge. See Waters v. Barry, 711 F. Supp. 1121, 1122-1123 (D.D.C.1989) (granting temporary restraining order).
[24] Although similar, the Act is more restrictive than the Middletown ordinance. Most importantly, the Middletown ordinance contained a broad exemption for the exercise of First Amendment rights (although it did require that advance notice be provided by the minor of an intent to exercise those rights). The Act contains no equivalent exemption. The Middletown ordinance also permitted adults other than parents to accompany juveniles during curfew hours. In these times of non-nuclear families, this difference is significant. The Middletown ordinance also permitted the Mayor to exempt by permit certain activities which, although not expressly dealt with in the ordinance, might clearly merit exemption. The Act does not permit such an exercise of mayoral discretion in this case.
[25] Although only three members of the Court joined Justice Powell's articulation of these factors, the Justices who wrote separately (four concurring in the judgment, one dissenting) addressed different matters; none disputed the accuracy or relevance of Justice Powell's three criteria. These three factors, notwithstanding their expression in a plurality opinion, represent the Court's only reasoned discussion to date of the possible bases for distinguishing minors' constitutional rights from adults. As such, Bellotti is generally cited as controlling in cases that require such a distinction, including cases addressing the constitutionality of juvenile curfew statutes. See Johnson v. City of Opelousas, 658 F.2d 1065, 1073 (5th Cir.1981); McCollester v. City of Keene, 586 F. Supp. 1381, 1385-86 (D.N.H.1984).
[26] In light of this holding, the Court does not address the plaintiffs' contention that enforcement of the Act would infringe upon the rights of juveniles under the Free Exercise Clause of the First Amendment.
[27] At oral argument, counsel for the plaintiffs' asserted that the Act, in effect, is a "device intended to manufacture probable cause."
[28] Stripped to its essentials, the plaintiffs' Fourth Amendment argument is essentially derivative of their claims under the First and Fifth Amendments. Although their argument is here framed in terms of the Fourth Amendment, they are ultimately complaining only of the arbitrariness and irrationality of the substantive offense specified in the Act. And, as the Court's judgment proves, their complaints on this score are well taken. The plaintiffs' Fourth Amendment argument is thus redundant in light of their substantive challenges to the Act. At best it is contingent upon the success of those challenges if those substantive challenges had failed, the Fourth Amendment would not provide an independent basis for facially invalidating the Act.
[29] See Declaration of Wallace Mlyniec at ¶ 3.
[30] See Second Declaration of Dan Yakir. Mr. Yakir's Declaration contains no information with respect to three of the murdered juveniles. As to two others, the circumstances leave open the possibility that they may have been killed in a public place during curfew hours, although this apparently cannot be determined. Id.
[31] Id.
[32] See Juvenile Curfew Emergency Declaration Resolution of 1989 at § 2(c).
[33] In light of this holding, the Court does not address the plaintiffs' contention that the Act draws irrational distinctions between those juveniles that have the use of motor vehicles and those that do not, that it draws irrational distinctions between activities sponsored by for-profit and non-profit organizations, and that it draws irrational distinctions between those types of juvenile employment that require work permits and those that do not. See Plaintiffs' Amended Complaint ¶¶ 53-55. | 01-03-2023 | 10-30-2013 |
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
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<P><STRONG><CENTER>NO. 03-97-00006-CR</CENTER>
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<BR WP="BR1"><BR WP="BR2">
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<P><STRONG><CENTER>Walter Hale, Appellant</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
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<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>The State of Texas, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NO. 0963090, HONORABLE JON N. WISSER, JUDGE PRESIDING</STRONG></SPAN><SPAN STYLE="font-family: CG Times"><STRONG></CENTER>
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<P><SPAN STYLE="font-family: CG Times"><STRONG>PER CURIAM</STRONG></SPAN></P>
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<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"> This is an appeal from a judgment of conviction for felony driving while intoxicated.
Appellant's motion to substitute counsel is granted. Tex. R. App. P. 7. Appellant's motion to dismiss the
appeal is granted. Tex. R. App. P. 59(b).</SPAN></P>
<P><SPAN STYLE="font-family: CG Times"> The appeal is dismissed.</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Before Justices Powers, Jones and Kidd</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Dismissed on Appellant's Motion</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Filed: February 6, 1997</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Do Not Publish</SPAN></P>
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https://www.courtlistener.com/api/rest/v3/opinions/744227/ | 120 F.3d 120
133 Lab.Cas. P 33,554, 3 Wage & Hour Cas.2d(BNA) 1793
Vivian MARTYSZENKO, Plaintiff-Appellant,v.SAFEWAY, INC., a Delaware Corporation; Dennis Davis,Defendants-Appellees.
No. 97-1010.
United States Court of Appeals,Eighth Circuit.
Submitted June 13, 1997.Decided July 15, 1997.
Michael N. Dolich, Lincoln, NE, argued, for plaintiff-appellant.
James Conrad Zalewski, Lincoln, NE, argued, for defendants-appellees.
Before MURPHY, LAY and NORRIS,1 Circuit Judges.
LAY, Circuit Judge.
1
This is an action brought under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (FMLA). Vivian Martyszenko was working as a cashier at Safeway grocery store in Ogallala, Nebraska, when she received a call indicating that police believed her two children may have been sexually molested. On the basis of this information, Dennis Davis, Martyszenko's supervisor at Safeway, permitted Martyszenko two weeks' vacation leave to care for her children.
2
Dr. Randall Sullivan, a psychiatrist, examined Martyszenko's seven-year-old son, Kyle, on August 4, 1995, and found he had no behavior problems.2 Dr. Sullivan found no evidence of distractibility, psychosis or hallucinations. He concluded that "it would be premature to make a diagnosis of sexual abuse." Dr. Sullivan suggested Kyle should be supervised, but did not believe he needed to be observed continuously.
3
After the August 4 appointment, Martyszenko returned to Safeway and spoke with her supervisor. She informed Davis that the visit with Dr. Sullivan was inconclusive and that Kyle was scheduled for additional appointments at about two-week intervals. Davis offered to schedule Martyszenko around Kyle's appointments. Martyszenko then left Safeway permanently. She did not report to work as scheduled and she did not contact Davis.
4
Dr. Sullivan evaluated Kyle on August 14. He reported:[Kyle] is not expressing any issues that he has been sexually abused or had any sexual contact. The family reports that his behavior at home is essentially normal with no behavior problems. He had no behavior problems at school last year.
5
Dr. Sullivan observed that his final interview with Kyle was "essentially unremarkable."3
6
In October 1995, Safeway twice wrote Martyszenko and advised her that she could return to her position at Safeway with full reinstatement of benefits and no loss in seniority. In January 1996, Safeway provided Martyszenko a check in the amount she would have received as compensation had she remained at work. Martyszenko rejected the offer to return but cashed the check.
7
In her suit in district court, Martyszenko asserts that Safeway fired her after she requested time off from work and that Safeway failed to inform her of leave available under the FMLA. The district court granted Safeway's summary judgment motion on the basis that Kyle did not have a "serious health condition," which is necessary to trigger the FMLA. Martyszenko appeals.
DISCUSSION
8
Martyszenko argues that the district court granted summary judgment premised upon its erroneous interpretation of the FMLA as requiring some incapacity to prove a "serious health condition." We affirm.
Family and Medical Leave Act
9
In relevant part, the FMLA entitles an eligible employee to twelve workweeks' leave per year to care for a child with a serious health condition. 29 U.S.C. § 2612(a)(1)(C). This leave generally may be unpaid. 29 U.S.C. § 2612(c). An employer violates the FMLA if it denies the employee leave or reinstatement following the leave. See 29 U.S.C. §§ 2612(a), 2614(a), 2615(a)(1).
10
A "serious health condition" is any physical or mental condition that involves inpatient care or continuing treatment by a health care provider. 29 U.S.C. § 2611(11). This case does not concern inpatient care. The FMLA does not define what medical attention constitutes "continuing treatment" by a health care provider, nor does it further define "serious health condition." However, Congress directed the Secretary of Labor to promulgate regulations to effectuate the Act. 29 U.S.C. § 2654.
11
Under the governing regulations, to constitute a serious health condition premised upon continuing treatment by a health care provider, the condition at a minimum will include either: a period of incapacity of more than three consecutive days together with subsequent multiple treatments or related periods of incapacity; a period of incapacity due to pregnancy or for prenatal care; a period of incapacity or treatment for the incapacity due to a chronic serious health condition; a permanent or long-term period of incapacity due to ineffective treatment; or a period of absence to receive or recover from multiple treatments by a health care provider for restorative surgery or for a condition likely to result in incapacity if no treatment is received. 29 C.F.R. § 825.114(a).4
12
"Serious Health Condition"
13
The district court interpreted these regulations as requiring incapacity. It is difficult to fault this assessment. In construing regulations of the Secretary, we were recently reminded that "[where] Congress has not 'directly spoken to the precise question at issue,' we must sustain the Secretary's approach so long as it is 'based on a permissible construction of the statute.' " Auer v. Robbins, --- U.S. ----, ----, 117 S. Ct. 905, 909, 137 L. Ed. 2d 79 (1997) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 2781-82, 81 L. Ed. 2d 694 (1984)).
14
Martyszenko argues that incapacity is not required to trigger the FMLA. She contends that even if incapacity is required, Kyle's three consultations with Dr. Sullivan qualify as a period of incapacity. We find no error in the district court's interpretation. In addition to the standards set forth in the regulations, the legislative history of the FMLA supports the district court's construction. The Act was designed to permit a parent to tend to her child where the child is "unable to participate in school or in his or her regular daily activities." S.Rep. No. 103-3, at 28 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 30; H.R.Rep. No. 103-8, pt. 1; see also 29 C.F.R. § 825.114(a)(2)(I). The Act was "not intended to cover short-term conditions for which treatment and recovery are very brief." S.Rep. No. 103-3, at 28.
15
Uniformly, courts applying the FMLA expressly or impliedly have required a showing of incapacity. See Hodgens v. General Dynamics Corp., 963 F. Supp. 102, 106 (D.R.I. 1997) (holding no FMLA breach where employee's "condition did not prevent him from performing his job"); Boyce v. New York City Mission Soc'y, 963 F. Supp. 290, 299 (S.D.N.Y. 1997) (recognizing the requirement of incapacity; holding plaintiff's shortness of breath and chest pains failed to meet the FMLA standard); Rhoads v. FDIC, 956 F. Supp. 1239, 1255 (D.Md.1997) (denying employer's summary judgment motion where the plaintiff's "well documented chronic health condition" caused "episodic periods of incapacity"); Kaylor v. Fannin Reg'l Hosp., 946 F. Supp. 988, 997-98 (N.D.Ga.1996) (finding plaintiff's back injury to be a "serious health condition" because it "incapacitated [him] for three weeks"); George v. Associated Stationers, 932 F. Supp. 1012, 1015-16 (N.D.Ohio 1996) (finding a "serious health condition" where the plaintiff's communicable chicken pox prevented him from working for over three days); Hott v. VDO Yazaki Corp., 922 F. Supp. 1114, 1128 (W.D.Va.1996) (noting incapacity requirement and granting employer summary judgment where condition would last ten days but where "the plaintiff was able to perform the functions of her position"); Gudenkauf v. Stauffer Communications, Inc., 922 F. Supp. 465, 474-76 (D.Kan.1996) (holding employer's refusal to grant leave did not violate the FMLA where the employee failed to prove that her condition "kept her from performing the functions of her job"); Bauer v. Dayton-Walther Corp., 910 F. Supp. 306, 310-11 (E.D.Ky.1996) (finding no FMLA violation upon no showing of requisite incapacity period); Brannon v. OshKosh B'Gosh, Inc., 897 F. Supp. 1028, 1036-37 (M.D.Tenn.1995) (holding employee's condition did not require FMLA leave because she was not " 'incapacitated' for more than three calendar days," but employee's daughter's fever qualified because it kept her from day care); Seidle v. Provident Mut. Life Ins. Co., 871 F. Supp. 238, 243 (E.D.Pa.1994) (requiring employee to demonstrate her child underwent "a period of incapacity requiring absence from his day care center for more than three days").
16
Here, the alleged molestation did not create a mental condition that hindered Kyle's ability to participate in any activity at all. From the outset, Dr. Sullivan did not report any psychological disorder or mental condition and found Kyle to be worry free and undistracted. He did not restrict any of Kyle's daily activities. The record does not establish the existence of any health condition, let alone a "serious health condition" as contemplated by the FMLA.
17
Although periodic examinations may constitute treatment, by the FMLA's express terms such treatment must be "continuing" to require extended leave. 29 U.S.C. § 2611(11)(B). That is, consistent with the aim of the statute to permit reasonable leave "for eligible medical reasons ... and for compelling family reasons," 29 U.S.C. § 2601(b)(4) (emphasis added), examinations and evaluations concerning serious health conditions will implicate the FMLA only to the extent their importance, duration and frequency require absence from work.
18
The record establishes that Dr. Sullivan examined Kyle to determine whether Kyle in fact had been molested, and, if so, whether that molestation created psychological problems. Yet, there was never any report of a serious psychological condition--only of an alleged molestation. We therefore hold these examinations did not amount to treatment for a serious health condition.
19
Safeway accommodated Kyle's first examination immediately by permitting Martyszenko a full two weeks' leave, and offered not to schedule her to work at any time during Kyle's subsequent examinations. While the accusation of molestation led Dr. Sullivan to suggest that Kyle should be supervised, he at no time found any support for the uncorroborated molestation accusation, and in any event did not order Kyle to be observed continuously. We hold that Safeway met its obligation to Martyszenko under the FMLA by releasing her from work for an extended period up through the first examination and by offering to schedule her to work around the two subsequent examinations.
CONCLUSION
20
In sum, we hold that Kyle did not have a "serious health condition" under the FMLA. Even assuming Dr. Sullivan's interviews could be deemed examinations to determine the existence of a serious health condition pursuant to 29 C.F.R. § 825.114(b), Safeway met its FMLA-leave obligation by permitting Martyszenko leave initially and by offering to schedule her around any examinations. The judgment of the district court is affirmed.
1
The Honorable William A. Norris, Circuit Judge for the Ninth Circuit, sitting by designation
2
Notwithstanding the original report that both of Martyszenko's children were thought to have been molested, authorities resolved that Martyszenko's daughter had not been molested
3
Dr. Sullivan concluded:
I do not see any real clear evidence for sexual abuse.... I think from a diagnostic point of view, I would be hard pressed to say he clearly is a victim of sexual abuse or that he even has a diagnosable psychiatric problem at this point.
4
"Treatment" includes, inter alia, "examinations to determine if a serious health condition exists and evaluations of the condition." 29 C.F.R. § 825.114(b) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1617822/ | 623 So.2d 459 (1993)
Bernard J. PENN, Appellant,
v.
FLORIDA DEFENSE FINANCE AND ACCOUNTING SERVICE CENTER AUTHORITY, etc., et al., Appellees.
No. 81201.
Supreme Court of Florida.
June 24, 1993.
Rehearing Denied September 9, 1993.
*460 Bernard J. Penn, pro se.
Robert A. Emmanuel and Karen O. Emmanuel of Emmanuel, Sheppard & Condon, Pensacola, for appellees.
PER CURIAM.
We have on appeal a final judgment of the Escambia County Circuit Court validating a $100,000,000.00 bond issue. We have jurisdiction. Art. V, § 3(b)(2), Fla. Const.
In 1992, the Florida Defense Finance and Accounting Service Center Authority (the Authority), together with the governments of Escambia County and the City of Pensacola, adopted resolutions authorizing the bond issue that is the subject of this cause, for the purpose of making improvements to assist the Department of Defense in improving its *461 facilities in Escambia County. The bonds are to be issued solely in the name of the Authority, which itself has no taxing powers.
On December 11, 1992, the Authority filed suit for the purpose of validating the bond issue, and the same day the circuit court entered a show-cause order that subsequently was published in the form of a notice in a newspaper of general circulation in Escambia County. The hearing on the order was scheduled for January 4, 1993.
On or about December 10 and 11, 1992, the city and county approved emergency ordinances establishing trust funds and taking other actions to provide security for the bond issue. Under the ordinances, the bonds will be secured by lease payments from the city and county, which in turn are secured by tax increment revenues measured in part by future increases in ad valorem tax receipts. Any shortfall will be made whole by non-ad valorem revenues, but the bondholders' lien attaches only to monies actually deposited in the trust funds. The city and county contended that the ordinances had to be approved on an emergency basis in order to meet a Department of Defense deadline.
The State Attorney filed an answer on December 31, 1992, and the same day Bernard J. Penn filed a "Motion for Continuance and Answer."
The trial court apparently was unaware that Penn had filed his Motion, and on January 4, 1993, the judge entered final judgment after permitting Penn to make oral statements to the court. Penn filed for rehearing, and the Authority moved to strike his pleadings. A further hearing was held on January 15, 1993, at which time the trial court permitted Penn to speak again and present evidence and testimony. The judge then denied the Authority's motion to strike but also denied Penn's motion for rehearing. Penn subsequently filed his notice of appeal.[1]
First, Penn argues that the Escambia County Circuit Court lacked jurisdiction over this cause. We find this argument without merit. Compare § 75.02, Fla. Stat. (1991) with § 163.01(13), Fla. Stat. (1991); see art. V, § 5(b), Fla. Const.
Second, Penn contends that the requisite twenty-day period between publication of the notice and the date of the hearing was not honored. See Fla.R.Civ.P. 1.090 (1991). Penn appears to suggest that the hearing could not properly have been held until January 5, 1993, or some day thereafter. We find this argument without merit. The twenty-day period ended on Sunday, January 3, 1993; and the trial court properly honored the rule by delaying the hearing until the next business day. Id.
Third, Penn argues that the city and county governments improperly approved their emergency ordinances. In this regard, the trial court accepted the city and county governments' contention that they did so in part to meet a Department of Defense deadline. We find nothing in the record to contradict this contention, which is supported by substantial competent evidence. That being the case, we may not disturb the finding on appeal. Moreover, many of Penn's contentions in this regard appear to raise what are essentially political questions, which this Court has no power to resolve. Voters discontent with the actions of the city and county governments remain free to express their disapproval at the ballot box when city and county officials are elected.
Fourth, Penn argues that the financing mechanism employed in this instance violates article VII, section 12 of the Florida Constitution.[2] We find the financing mechanism *462 at issue here indistinguishable from that approved in State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla. 1980). Accordingly, there is no merit in Penn's argument in this regard.
Fifth, Penn appears to argue that chapter 163, Florida Statutes, violates the common law, the Constitution of Florida, and the Fifth and Fourteenth Amendments of the United States Constitution. We find this argument meritless, irrelevant, and procedurally barred for Penn's failure to raise it below.
Sixth, Penn appears to argue that the twenty-day period between publication of the notice and the hearing below was too short and violated the Florida and federal guarantees of due process. We find this argument without merit.
Seventh, Penn challenges the procedures used below on grounds they exhibited unfairness and failed to comply with the requirements of the law. After reviewing the record, we find no merit to this argument.
Eighth, Penn contends that the final judgment below violates article I, section 8 of the United States Constitution. Penn appears to suggest that the city and county government improperly have usurped Congress' authority to raise revenue to support armies. We find this argument meritless. Nothing in the Florida or federal constitutions prohibits a local government from using its own resources to encourage the continued operation of military facilities of benefit to the local community.
For the foregoing reasons, the final judgment entered by the court below is in all respects affirmed.
It is so ordered.
BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.
NOTES
[1] For purposes of this appeal, we assume arguendo that Penn did not forfeit his right to an appeal by his actions or inactions below.
[2] This provision states:
Counties, school districts, municipalities, special districts and local governmental bodies with taxing powers may issue bonds, certificates of indebtedness or any form of tax anticipation certificates, payable from ad valorem taxation and maturing more than twelve months after issuance only:
(a) to finance or refinance capital projects authorized by law and only when approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation; or
(b) to refund outstanding bonds and interest and redemption premium thereon at a lower net average interest cost rate.
Art. VII, § 12, Fla. Const. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920210/ | 91 B.R. 364 (1988)
In re SPECIALTY FOODS OF PITTSBURGH, INC., Debtor.
Bankruptcy No. 87-03261, Motion Nos. 88-1309M, 88-1503M.
United States Bankruptcy Court, W.D. Pennsylvania.
September 16, 1988.
*365 Joseph N. Bifano, West Mifflin, Pa., for debtor.
William T. Molczan, Pittsburgh, Pa., for trustee.
John R. Luke, Esq. and William Coholan, Pittsburgh, Pa., for Tambellini Foods, Inc.
Frank A. Conte, Washington, Pa., for Green Valley Packing, Inc.
MEMORANDUM OPINION
JUDITH K. FITZGERALD, Bankruptcy Judge.
The matters before the court are a Motion for Relief from Stay filed on behalf of Tambellini Foods, Inc. (hereafter Tambellini) at Motion No. 88-1309 and a Motion to Sell Personal Property of the Estate, Including License Agreement, Free and Clear of Liens filed by the Trustee at Motion No. 88-1503. These are core proceedings. 28 U.S.C. § 157. Tambellini is the owner of a trademark, the rights under which were licensed to Specialty Foods of Pittsburgh (hereafter the Debtor) on January 17, 1986, and alleges that pursuant to the license agreement the Debtor could not sell or assign the license rights to another without the written consent of Tambellini.
Tambellini contends that the license agreement is not an asset of the Debtor's estate and, therefore, cannot be sold or assigned through the Bankruptcy Court and further that the Debtor has failed to offer it adequate protection of its interest in this property. Tambellini also alleges that Debtor materially breached the license agreement by attempting assignments without prior notice to Tambellini. Tambellini therefore contends that it is entitled to relief from stay.
Both the Debtor and the Trustee have responded to the Motion for Relief from Stay, essentially contending that there was no material breach of the agreement and that the license is the only unencumbered and valuable asset of the Debtor's estate. At trial it was established that Debtor originally acquired its license rights from a division of General Host Corporation and that Debtor may owe amounts to General Host which, several years before this bankruptcy ensued, transferred its rights to Tambellini's predecessor. It was agreed at *366 trial that Debtor does not owe Tambellini money either for purchase of the license rights or in the nature of a royalty. See paragraph 3 and note 3 and accompanying text, infra. Furthermore, there is no default in this case which the Trustee must cure within the provisions of § 365.
Although this court's Order Setting Hearing Date on the Trustee's Motion to Sell provided a deadline for written responses and objections to the Motion to Sell, Tambellini filed none. However, Tambellini raised verbal objections to confirmation of the sale at the hearing on the sale. At that time, to facilitate consideration of the oral objections, the court granted Tambellini ten days after the conclusion of the sale hearing to reduce its objections to writing. As filed, however, the written objections included allegations not previously presented to the court in any form.
Witnesses and testimony were presented only during an evidentiary hearing on the Motion for Relief from Stay but the evidence is equally applicable to issues raised in the context of the sale hearing. It is on the basis of the credible evidence so presented that the court makes the following findings of fact and conclusions of law.
FACTS
1. Debtor filed a voluntary Chapter 11 petition on December 2, 1987.
2. The case was converted to Chapter 7 on February 17, 1988.
3. Prepetition, the Debtor obtained an exclusive license to market certain products under the Tambellini trademark by virtue of a license agreement dated February 7, 1984, introduced as Plaintiff's Exhibit 11 (hereafter the "1984 agreement").[1] The licensor under the 1984 agreement was The All-American Gourmet Company, a division of General Host Corporation (hereafter General Host). Thereafter, General Host sold to Tambellini's predecessor all of its right, title and interest in the Tambellini trade name, all trademarks, and all rights and obligations under the 1984 agreement between General Host and Debtor. (Exhibit 14.) See also note 3 and accompanying text, infra. The parties in interest, therefore, are Tambellini Foods, Inc., and Debtor.
4. Tambellini was responsible for registering and maintaining the registration of the Tambellini trademark under the 1984 agreement and has done so. The Debtor was given an exclusive license of 99 years' duration to market certain items using the trademark. The term was renewable for an unlimited number of 99 year periods. The license agreement further provided that
[w]ithout the prior written consent of Licensor which shall not be unreasonably withheld or delayed, Licensee may not assign any of its rights under this License Agreement to other than a company which is a wholly-owned subsidiary of Licensee or to a company which purchases the assets and business of Licensee relating to The Products. Licensee must notify Licensor in writing of any permitted assignment. (Exhibit 11 at ¶ 12(a)).
5. The testimony of Debtor's sole shareholder, John Lochra, established that the purpose of the 1984 license agreement was to provide Debtor with the exclusive right to market, on a retail level, certain refrigerated products using the Tambellini trade-name and mark.
6. The Debtor and Tambellini entered into a second license agreement on January 17, 1986, introduced as Exhibit 1 (hereinafter the "1986 agreement"). The purpose of this agreement was to expand the types of foods to be marketed exclusively by Debtor in a certain area, and to establish a second trademark under which the Debtor could market those products. This mark is referred to in the 1986 agreement and herein as the "new mark."
7. The terms of the 1986 agreement were substantially similar to that of the 1984 agreement in that the 99 year periods were continued, Tambellini was required to *367 register the new mark, and the Debtor was granted exclusive marketing rights. The 1986 agreement differed, however, in that it provided that the new mark would cover an expanded product line, and the Debtor became responsible, upon thirty days' written notice from Tambellini, for reimbursing Tambellini for the fees, expenses and charges incurred by Tambellini for the registration and maintenance of registration of the new mark. Tambellini did not register the new mark and, therefore, the costs were never billed. Thus, Debtor's obligation to pay was not activated. The license agreements admitted into evidence establish that Tambellini and General Host provided the exclusive licensing agreements to Debtor on a "no royalty" basis but that the parties have continuing obligations under the agreements.
8. The evidence established that although the Tambellini new mark was not registered, it was used by the Debtor in accordance with the 1986 agreement.
9. Paragraph 10 of the 1986 license agreement is substantially similar to paragraph 12 of the 1984 license agreement and provides that:
[w]ithout the prior written consent of Licensor, which will not be unreasonably withheld, Licensee may not sublicense any of its rights under this agreement to other than a company which is wholly owned by Licensee and only for so long as such company continues to be wholly owned by Licensee, nor may Licensee assign any of its rights under this agreement to other than a company which purchases the entirety of Licensee's assets and business relating to this Exclusive License. Licensee agrees to notify Licensor in writing within ten (10) days following any assignment or sublicense permitted by this paragraph, advising Licensor of the rights given and the parties involved. (Exhibit 1 at ¶ 10.)
Although this wording differs somewhat from that of paragraph 12(a) of the 1984 agreement, see paragraph 4, supra, the effect is the same; that is, Debtor may transfer its rights without the prior consent of the licensor under certain circumstances. In all other circumstances, Tambellini may not withhold consent unreasonably.
10. Tambellini's attorney drafted both license agreements.
11. Testimony established that on December 1, 1987, pursuant to paragraph 10 of the 1986 agreement, the Debtor entered into a sales agreement with Frank Traggone (Exhibit 2) who was in the process of incorporating Adtra Foods, Inc.[2] to carry on the business. Traggone was and is an employee of Green Valley Packing, Inc., the sole bidder at the sale hearing. The agreement between Traggone and Debtor purported to sell the trademark to Traggone and provided that Traggone would assume Debtor's obligation to General Host as well as certain other obligations. Evidence and deposition testimony indicate that General Host had been negotiating with Traggone. See Deposition of Frank Traggone at 5-8, 12, 13, 19, 20. The reason is not clear inasmuch as General Host previously had transferred its interest, right and title in the trademark to Bischward, Inc., Tambellini's predecessor in interest.[3]See paragraph 3, supra. Hand money had been submitted by Traggone to Debtor, but payment on the check was stopped and Traggone elected not to consummate the sale when Traggone became aware that Tambellini, not General Host, owned the trademark and tradename.
*368 12. Debtor notified Tambellini of the fact that Debtor intended to sell its license rights to Traggone. Notice was given to Tambellini's president, Jack Bisbey, orally and by letter dated December 8, 1987. (Exhibit 3.) Tambellini was not notified in the letter of December 8 that an agreement had been signed on December 1, 1987.
13. Testimony established that the Debtor ceased ordering products in the beginning of November, 1987, but continued to fill orders from its inventory. Debtor was distributing from its inventory when Traggone assumed the distribution function immediately upon execution of the December 1st agreement with Debtor. Testimony further established that Traggone, as had Debtor before him, purchased sausage and some other supplies from Green Valley Packing, Inc. (hereafter Green Valley), Traggone's employer and the only bidder present at the sale hearing.
14. Traggone distributed products over a period of approximately three weeks in December, 1987, pursuant to its December 1 agreement with Debtor.
15. In a letter dated December 22, 1987, (Exhibit 5), Tambellini notified Debtor that it wanted information regarding Adtra to "make the proper decisions [with respect to granting or withholding its consent to the agreement] in a manner other than arbitrarily". John Lochra's testimony established that written consent to the arrangement between Debtor and Traggone or Adtra was refused by Tambellini for no reason other than Tambellini's President, Jack Bisbey, had told Lochra that he would sign only a one-page document and the document presented to him was one and one-half pages. Bisbey was present in court but was not called to testify and Lochra's testimony was uncontradicted.
16. On December 21, 1987, nineteen days after the petition in bankruptcy was filed, Tambellini provided Debtor written notice of termination of the 1986 agreement. (Exhibit 4.) The attempted termination was ineffective because of the automatic stay imposed by 11 U.S.C. § 362. See In Re Rhyne, 59 B.R. 276 (Bankr.E.D. Pa.1986). Because the 1986 agreement incorporates by reference the 1984 agreement, the letter of December 21, 1987, likewise was ineffective to terminate Debtor's rights under the 1984 agreement and therefore the 1984 agreement and Debtor's interest therein remained property of the estate. Because the attempted termination was ineffective, both license agreements were in force at the time that the bankruptcy petition was filed and became estate property.
17. When the agreement with Traggone fell through, Debtor began negotiations with Green Valley in an effort to sell its rights under both license agreements. On January 8, 1988, the parties memorialized in writing the sale they had negotiated. (Exhibit 6.) This agreement, purporting to sell all assets[4] of Debtor including the license rights, equipment and other assets, is subject to court approval under 11 U.S.C. § 363 inasmuch as it is a sale of assets outside the ordinary course of Debtor's business. It also is subject, by its terms, to Tambellini's consent and cites in this regard paragraph 10 of the 1986 agreement. However, paragraph 10 of the 1986 agreement provides that Tambellini's consent is not required when all of Debtor's assets and business "relating to" the license agreement are sold to one company. See Exhibit 1, ¶ 10 and paragraph 9, supra. If Debtor were to transfer its license rights to a company which was not purchasing all of its business or was not a wholly-owned subsidiary, it could do so only with Tambellini's prior consent. In the case before the court, however, all assets "relating to" to the license are the subject of the sale and the prior written consent of Tambellini is not required.
18. Brian P. Weiss, a salesman for Green Valley and the son of its owner, *369 George Weiss, testified that Green Valley began to distribute products in late December, 1987, using the Tambellini trademark even though its agreement with Debtor is dated January 8, 1988. Green Valley distributed the same items that Debtor had been purchasing from Green Valley and distributing under the license agreements. Green Valley delivered products to supermarkets as Debtor had done under the 1984 and 1986 agreements. Debtor and the Trustee contend, and the court credits the testimony and the reasonable inferences therefrom which established that it was necessary to maintain the market for Tambellini products by stocking the stores after Debtor ceased operations, thus avoiding the probable result that retailers would replace Tambellini's products with those of its competitors, thereby leaving little or no value in the license agreements.
19. Tambellini claims that it is not adequately protected by the sale since Green Valley "may" not meet its standards. Well before the sale, the Trustee and the Debtor notified Tambellini that Green Valley had offered to purchase the license agreements from Debtor. In addition, Tambellini had ample opportunity during the course of these proceedings to submit evidence as to Green Valley's inability to meet Tambellini's standards or as to any other inadequacy or incapacity attributable to Green Valley. Tambellini failed to produce any such evidence. Green Valley was Debtor's supplier for quite some time before Debtor's bankruptcy case was filed and before execution of the agreement between Debtor and Green Valley. Tambellini never expressed dissatisfaction or objected to Green Valley's participation prior to the filing of the bankruptcy case. The court notes that at the sale hearing Tambellini agreed to permit Green Valley to continue marketing under the license agreements pending this decision on the sale of Debtor's assets. These facts contradict Tambellini's asserted dissatisfaction with Green Valley's ability to function according to Tambellini's standards. Furthermore, Tambellini presented no evidence to support its opposition to Green Valley or which would justify denial of confirmation of the sale, nor has it advanced any rational basis for opposing confirmation of the sale. Thus, in light of the history of operations between and among Debtor, Tambellini, and Green Valley, the court finds that Tambellini's arguments are devoid of merit.[5] To the extent the objections allege that Tambellini's interests are not being adequately protected,[6] the history of operations establishes that Green Valley is able to perform satisfactorily and the objections are overruled. To the extent the objections constitute the *370 withholding of consent to the sale at bar, they are unreasonable and, therefore, invalid under the terms of the 1984 and 1986 agreements.
20. Tambellini also claims that the sale price is inadequate and that the license agreements are worth $150,000. This claim was raised for the first time in the written objections which were filed several days after conclusion of the sale hearing. This court's order permitting Tambellini to file written objections to confirmation of the sale after the hearing did not encompass permission to raise new objections. That this was made clear at the hearing is evident from a review of the audio transcript. Furthermore, Tambellini offered no explanation as to why something as important as value was not raised either verbally at the sale hearing or, as it should have been, in writing before the sale and filed with the Clerk in a timely manner. Despite its opportunities, Tambellini failed to offer evidence supporting its assertion of value. The sale, including the dollar amount of Green Valley's offer, was properly noticed and advertised and the only bidder was Green Valley. Based on these facts, Tambellini's bald, unsupported assertion of value is not credible. Moreover, Green Valley was an independent, good faith purchaser which appeared in court by its representative witness, who testified under oath, whereas Tambellini was an interested party whose statement as to value was made by its attorney, not by a sworn witness whose credibility could be explored by cross-examination.
DISCUSSION
Because this court will enter an Order confirming the sale to Green Valley, Tambellini's Motion for Relief from Stay is rendered moot and relief will be denied. Insofar as Tambellini is concerned about adequate protection of its interests, the reasons given below for confirming the sale sufficiently explain why Tambellini is adequately protected within the meaning of 11 U.S.C. § 362(d)(1) or, alternatively, is adequately assured of future performance as provided in 11 U.S.C. § 365. See footnote 6, supra.
Tambellini objects to confirmation of the sale on various grounds. First, Tambellini argues that the sale cannot be confirmed because it does not include all of Debtor's assets and therefore is a transfer "in gross" which is violative of the Lanham Act, 15 U.S.C. § 1051 et seq.
Whether or not a transfer of a trademark is in gross and therefore violates the Lanham Act is governed by § 1060 of the Act as interpreted by case law. Section 1060 provides
[a] registered mark or a mark for which application to register has been filed shall be assignable with the goodwill of the business in which the mark is used, or with that part of the goodwill of the business connected with the use of and symbolized by the mark, and in any such assignment it shall not be necessary to include the goodwill of the business connected with the use of and symbolized by any other mark used in the business or by the name or style under which the business is conducted....
15 U.S.C. § 1060. See also Visa, U.S.A., Inc. v. Birmingham Trust National Bank, 696 F.2d 1371, 1375 (F.Cir.1982), cert. denied, 464 U.S. 826, 104 S.Ct. 98, 78 L.Ed.2d 104 (1983).
Although the word "goodwill" does not appear in the agreement between Debtor and Green Valley nor in Trustee's motion to sell, the transfer at issue herein does not violate § 1060 inasmuch as the goodwill of the business, as defined by case law, is necessarily part of the sale at issue. In Matter of Roman Cleanser Co., 43 B.R. 940, 947 (Bankr.E.D.Mich., S.D.1984), aff'd., 802 F.2d 207 (6th Cir.1986), the court explained:
To be valid, an assignment of a mark must be accompanied by an assignment of the goodwill of the business.
"Good will and its symbol, a trademark, are inseparable. A trademark has no independent significance apart from the good will it symbolizes. If there is no business and no good will, a trademark symbolizes nothing. For this reason, a trademark cannot be *371 sold or assigned apart from the good will it symbolizes ... even if no physical assets are sold ... goodwill may very well pass to the buyer....
To determine whether an assignment of a trademark is valid, the proper focus is on "the nature of the assignee's use, not the formalism of what assets passed...."
43 B.R. at 947, citing 1 J. McCarthy, TRADEMARKS AND UNFAIR COMPETITION, §§ 2.8, 18.2, 18.7, pages 76, 801, 812 (2nd Ed.1984). See also Visa, U.S.A., Inc. v. Birmingham Trust National Bank, 696 F.2d at 1375-76. Cf. The Money Store v. Harriscorp Finance, Inc., 689 F.2d 666, 676 (7th Cir.1982) ("it is not necessary to the continuing validity of the mark that tangible assets ... pass to the assignee").
The court further noted that "[t]he requirement that good will accompany the assignment of a mark is to ensure that the mark will continue to be connected with substantially the same products with which the mark has become associated." 43 B.R. at 947. The purpose of the requirement is to avoid deception of customers caused from sudden and severe changes in the nature and quality of goods. Id. See also Marshak v. Green, 746 F.2d 927 (2d Cir. 1984). Cf., Visa, U.S.A., Inc. v. Birmingham Trust National Bank, supra, 696 F.2d at 1375 (protect consumers from being misled as to source of goods or services); The Money Store v. Harriscorp Finance, Inc., 689 F.2d at 676 ("continuity of things symbolized by the mark"). If this test is met, the transfer is not in gross.
In the case at hand Debtor had been distributing Green Valley's products using the Tambellini trademarks and tradenames as permitted by the license agreements. Green Valley is now distributing its own products using the Tambellini marks and names on an interim basis pending a decision on this sale. "The nature of the assignee's use", Matter of Roman Cleanser Co., 43 B.R. at 947, is identical to that made of the license agreements by Debtor. In addition, there will be no deception of customers nor drastic change in the product because the product and its source are identical to those utilized by Debtor. Thus, the sale at issue is sufficient to transfer goodwill and Tambellini's contention that the sale of Debtor's license rights to Green Valley violates the Lanham Act is devoid of merit.
Furthermore, under the Lanham Act it is not necessary that physical assets be transferred. Sterling Brewers, Inc. v. Schenley Industries, Inc., 58 C.C.P.A. 1172, 441 F.2d 675, 680 (1971). Even if such a requirement existed, the sale to Green Valley meets the test as it included all assets of the estate remaining as of the date of sale. The only assets transferred before the sale were certain vehicles in which Union National Bank held a security interest in an amount which exceeded value. Relief from stay was granted to Union National Bank inasmuch as Debtor had no equity in the vehicles and Union National Bank was not receiving adequate protection of its interest. See note 4, supra. In addition, the vehicles were not an essential part of the sale inasmuch as the heart of Debtor's business is the license agreements. Thus, in view of "the nature of the assignee's use," the sale at bar is not in gross and does not violate § 1060 of the Lanham Act. See Matter of Roman Cleanser Co., 43 B.R. at 947.[7]
Moreover, in selling the license rights under the 1984 and 1986 agreements, the Trustee is selling all that remains to be transferred. Therefore the Lanham Act is not violated as the transfer is not in gross. H & J Foods, Inc. v. Reeder, 477 F.2d 1053, 1055-56 (9th Cir.), cert. denied, 414 U.S. *372 859, 94 S.Ct. 69, 38 L.Ed.2d 109 (1973). Cf. Sterling Brewers, Inc. v. Schenley Industries, Inc., 58 CCPA 1172, 441 F.2d 675, 680 (1971) (court determined that tangible assets need not be included in assignment of trademark with business goodwill in a case involving separate agreements to sell trademark and physical assets to different buyers).
The court further notes that under the terms of both the 1984 and 1986 agreements Tambellini may not withhold its consent unreasonably inasmuch as Green Valley is purchasing all of Debtor's assets and business "relating to" the products and licenses. See, Exhibit 11, ¶ 12(a); Exhibit 1, ¶ 10. See also paragraphs 4, 9 and 17, supra. There was no evidence submitted by Tambellini to indicate that any assets or business of Debtor relating to the products and license were not being transferred. Accordingly, Tambellini's refusal to consent to this sale is neither reasonable nor of any effect.
Tambellini also expressed concern for public health and welfare and objected to confirmation on this ground. Its argument in this regard must be rejected. No evidence was submitted to support the allegation of a threat of public endangerment and, in view of the fact that Green Valley had been providing the products Debtor distributed and that the products are identical to those that Green Valley is now distributing, Tambellini's argument is specious. Furthermore, the public is protected because Tambellini is able to exercise control over the quality of products distributed pursuant to its inspection rights under the license agreements. The principal requirement for a valid license is that it provide "for adequate control by the licensor over the quality of goods or services produced under the mark by a licensee ... to protect the public from being misled." Visa, U.S.A., Inc. v. Birmingham Trust National Bank, 696 F.2d at 1377. See also The Money Store v. Harriscorp Finance, Inc., supra, 689 F.2d at 676 ("[t]he fundamental policy of consumer protection must always be kept in mind"). The transfer at issue meets the requirement because Tambellini retains the same control it has always had. No evidence or testimony was presented which would tend to show that consumers would be endangered in the least. Tambellini's arguments are not supported by the credible evidence and its bare allegation of a risk to public health and welfare is an insufficient basis upon which to deny confirmation of this sale to Green Valley.
Tambellini further contends that the Trustee must prove that other licensees of the Tambellini trademark are adequately protected by the sale. As noted earlier, the concept of adequate protection is not applicable in this context. In Re Wheeling-Pittsburgh Steel Corp., 54 B.R. 385 (Bankr.W.D.Pa.1985). Even if it were applicable, Tambellini cites no authority for the proposition that entities which are not parties in interest and have made no effort to appear or intervene must be provided adequate protection under the Bankruptcy Code. Furthermore, Tambellini has no standing to raise the rights of entities which are strangers to this litigation. Accordingly, Tambellini's objection to confirmation on this basis is rejected.
In connection with its written objections concerning adequate protection of other licensees, Tambellini asserts for the first time that the license agreements are worth $150,000.00 and argues that therefore the sale cannot be confirmed for $23,000.00. Assuming arguendo that Tambellini has standing to raise the issue of adequate protection of strangers to this litigation, Tambellini does not reveal why the value of the marks licensed exclusively to Debtor should be relevant to adequate protection of other licensees.
Addressing the question of value without reference to other interests, the court notes that the objection as to value was not timely raised and is inconsistent with the context in which this court granted the extension of time to file written objections. See paragraph 20, supra. Furthermore, no evidence was submitted to show that the value of the license agreements exceeds $23,000.00. To the contrary, the record establishes $23,000.00 as the fair value. Before filing its bankruptcy petition Debtor *373 sought buyers without success. In the bankruptcy case, the sale was properly advertised and notice was sent to all creditors. A motion requesting an expedited hearing with shortened notice and advertising requirements was denied in order to maximize the opportunity for any interested bidders to appear at the sale hearing and to tender higher or better offers. The Trustee received no inquiries or offers other than that from Green Valley, which was the offerer, successful bidder, and the only bidder present at the sale. There were no objections to the sale except Tambellini's, which were untimely and without merit. The highest and best offer was brought by the Trustee and it is conclusive on the issue of value.[8]
In addition, Tambellini does not have standing to question value. To have standing Tambellini must be a "person aggrieved", i.e., one "whose rights or interests are `directly and adversely affected pecuniarily'" or whose property has been diminished, burdens increased, or rights impaired by the sale. In re El San Juan Hotel, 809 F.2d 151, 154 (1st Cir.1987); Connellsville Plaza v. Jiffy Foods Corp., 92 B.R. 136 (W.D.Pa.1988). Tambellini has no monetary claim against Debtor and no claim to the proceeds of this sale. Accordingly, its pecuniary interests are not affected.
Tambellini is not a party aggrieved on any other basis inasmuch as its property has not been diminished, nor its burdens increased nor its rights impaired. Connellsville Plaza v. Jiffy Foods Corp., supra. The only change in the pre-petition status quo to be effected by the sale is that a product supplier of long standing will become the distributor as well. Tambellini retains all of its rights under the agreements and its consent to Green Valley's interim operation as distributor further negates a finding that Tambellini's interests are adversely affected by this sale. There was not a scintilla of evidence submitted in this case to suggest that confirmation of this sale will have any adverse impact on Tambellini. Tambellini therefore is not a "party aggrieved."
Tambellini further argues that the Trustee's motion is effective, if at all, only to transfer rights to the new mark under the 1986 agreement inasmuch as the motion and notice of sale refer to and attach as an exhibit only the 1986 agreement. The court finds that the notice and motion are effective to sell Debtor's rights under both agreements. The notice of sale which was sent to creditors and which was published in the newspapers states that among the assets to be sold is "a License Agreement by and between Debtor (Licensee) and Tambellini Foods, Inc. (Licensor) wherein Licensee has the right to use the Tambellini name and trademark in producing, packaging and selling various stuffs." Under Bankruptcy Rule 2002(c)(1) it is sufficient that a notice of sale generally describes the property to be sold. The notice in this case states no limitations or exclusions and, even though only the 1986 agreement was attached to the motion to sell, it is clear that the purpose of the 1986 agreement was twofold to expand the line of products subject to the Tambellini trademark under the 1984 agreement and to subject the licensing of these products to the same terms and conditions as those products licensed under the 1984 agreement. Evidence submitted by Tambellini established that Tambellini itself viewed the 1986 agreement as incorporating the 1984 agreement. Exhibit 5 is a letter dated December 22, 1987, from Tambellini's counsel to Debtor's attorney wherein Tambellini's counsel wrote that the 1984 agreement is the "predecessor" of the 1986 agreement. It is clear that all parties in interest, including Tambellini, understood that the sale notice and motion encompassed all of the Debtor's license rights regardless of which agreement the rights arose under. The court holds, therefore, that the Trustee's motion, if effective, would facilitate the transfer of Debtor's rights under both license agreements.
*374 Finally, we discuss Tambellini's contention that the Trustee may not sell Debtor's rights under the license agreements because they are executory contracts which were not assumed by a formal proceeding under § 365. The Trustee did not file a formal motion to assume the licenses within sixty days of the date of the order for relief. Instead, he filed the motion to sell within sixty days of that date and the motion was heard in court sixty-three days after that date.
Under 11 U.S.C. § 541 the license agreements and Debtor's rights thereunder are property of the Debtor's estate. Under 11 U.S.C. § 363(b) the Trustee may sell estate property other than in the ordinary course of business. The wrinkle in the case at bar is that the property to be sold consists of rights under executory contracts. Such contracts are subject to assumption or rejection under § 365 and are defined as those "on which performance remains due to some extent on both sides." Aetna Casualty & Surety Co. v. Gamel, 45 B.R. 345, 348 (N.D.N.Y.1984), citing H.R.Rep. No. 595, 95th Cong., 1st Sess. 347 (1977), U.S. Code Cong. & Admin.News 1978, 5787, 6303.
That the license agreements are executory contracts is evident from the fact that both parties have continuing obligations under the agreements. See generally Lubrizol Enterprises v. Richmond Metal Finishers, 756 F.2d 1043, 1045 (4th Cir.1985), cert. denied, 475 U.S. 1057, 106 S.Ct. 1285, 89 L.Ed.2d 592 (1986). For example, Tambellini may not terminate the trademark registration absent compliance with certain provisions in the agreements.[9] The licensee has a continuing obligation to permit Tambellini to inspect its premises and to use the trademark only in connection with certain items. Tambellini can terminate the agreements only under certain conditions and, absent those, it has an obligation to continue to permit the licensee to use the trademarks and to automatically renew the 99 year period. See Exhibits 1, 11.
The question is whether the Trustee is prohibited from selling the license agreements under § 363(b) if he first does not file, and have approved by the court, a § 365(d)(1) motion to assume the agreements.
Since the enactment of § 365 in 1978, authority has been divided as to whether a formal motion to assume is required or whether the Trustee may assume by word or conduct which unequivocally indicates an intent to assume. Under § 70b of the former Bankruptcy Act, Trustee conduct which did not include filing of a motion of any type often was construed to constitute assumption or rejection since the Act mandated no formal procedure. See Brown v. Presbyterian Ministers' Fund, 484 F.2d 998, 1007 (3d Cir.1973); Forgee Metal Products, Inc., 229 F.2d 799 (3d Cir.1956). Under the 1978 Bankruptcy Code the weight of authority requires that some type of motion be filed and that the Trustee's conduct or words which did not include a motion were not the equivalent of an assumption. See, e.g., Matter of Woodson Hays, Inc., 69 B.R. 303 (Bankr.M.D.Fla. 1987) (written communications between Debtor and landlord by which Debtor agreed to pay rent arrearages, to assume lease and to execute promissory note insufficient to comply with § 365); In re O.P. Held, Inc., 77 B.R. 388 (Bankr.N.D.N.Y. 1987) (lease deemed rejected when Trustee failed to file motion to assume within sixty days notwithstanding in-court statement made within sixty-day period of intention to file motion to assume); In re Treat Fitness Center, Inc., 60 B.R. 878 (9th Cir.B.A.P. 1986) (court rejected contention that discussions between landlord and debtor-in-possession concerning assignment, sublease or sale of the lease was equivalent to an assumption). In these cases, however, the *375 problem was different from that at bench in that no formal proceedings had been instituted by way of motion to assume or motion to sell. In the instant case the Trustee filed a motion to sell which of necessity incorporates an assumption of the asset to be sold to the extent that the Trustee cannot sell an asset which he has rejected or abandoned.
The Third Circuit recently stated that affirmative action by a Debtor to assume an executory contract is required. Counties Contracting & Construction Co. v. Constitution Life Ins. Co., 855 F.2d 1054 (1988). Although that case is distinguishable from the instant case, this general proposition applies.
An exhaustive examination of cases decided after enactment of the Bankruptcy Code in 1978 has revealed only one reported case, an opinion from this District, which discussed whether a motion to sell a lease brought by the Trustee within sixty days of the date of the order for relief may substitute for a motion to assume the lease. In Matter of Zacherl Coal Co., Inc., 14 B.R. 1001 (Bankr.W.D.Pa.1981),[10] the Trustee petitioned to sell all of Debtor's assets including a lease of coal and mineral rights. The motion to sell was brought within sixty days of conversion of the case from a Chapter 11 to a Chapter 7 and the court stated that the Trustee's affirmative act in moving to sell within the required period "operated as a final and complete assumption of the executory lease and contract" and that the assumption of the lease and contract was done "in such manner as to affirmatively deny their abandonment or rejection by failure to take action within sixty days" of the conversion. Id. at 1002.
In re Dartmouth Audio, Inc., 42 B.R. 871 (Bankr.N.H.1984), involved a sale of Debtor's assets including leases. The issue before the court was whether franchise rights were also included in the bidding on a sale of certain lease rights. Although the issue differed from that at bar and the propriety of a sale motion versus an assumption motion was not raised, it is worthy of note that the court confirmed the sale of the leases without first requiring a motion to assume.
Although not all the cases reviewed specifically referred to Bankruptcy Rule 9014, this Rule is the source of the requirement that a formal motion be filed in certain circumstances. Section 365 itself contains no requirement that the Trustee file a motion within sixty days, only that he assume or reject the executory contracts within that time period. 11 U.S.C. § 365(d)(1). Bankruptcy Rule 9014 requires that a motion for relief be filed and that notice and an opportunity to be heard be afforded in all contested matters. Bankruptcy Rule 9014 is equally applicable to motions to assume executory contracts and contested sales and does not distinguish between them. See Bankruptcy Rules 6006(a) and 6004(b) respectively. The authority reviewed by the court which denied assumption of executory contracts did so on the ground that no motion to assume executory contracts had been filed. It is significant, however, that in the cases reviewed no motion of any sort had been filed by the party purporting to assume executory contracts by conduct. Of the two cases discovered by this court which concerned sales of executory contracts, only one addressed directly the question of whether a motion to sell brought within the sixty day period effected an assumption of the contract. In both cases, the sales were confirmed. In re Dartmouth Audio, Inc.; Matter of Zacherl Coal Co., Inc.[11]
*376 This court agrees that a motion to sell rights under an executory contract filed within sixty days of the order for relief is sufficient to meet all applicable Code and Rule provisions governing executory contracts. The procedure mandated by Bankruptcy Rule 9014 for sales and executory contracts was complied with by the Trustee when he filed the motion to sell. The other requirements of the Rule were met in that notice and opportunity to be heard were afforded Tambellini. The requirements of § 365 also were met in that the Trustee acted within sixty days.
The only distinction between a sale of an executory contract and a sale of any other property is that § 365 requires that the Trustee act within sixty days with respect to any property which is also an executory contract. Regardless of whether the Trustee seeks to assume an executory contract or to sell it, he must comply with Bankruptcy Rule 9014. When, as in this case a motion to sell and a motion to assume and sell would have the identical effect and when the procedural safeguards are the same, the motion to sell is sufficient and a motion to assume and sell would be superfluous.[12]In the Matter of O.P. Held, Inc., 77 B.R. 388 (Bankr.N.D.N. Y.1987), the court stated that
the majority of courts considering the correct method whereby a trustee or debtor-in-possession assumes an unexpired lease, have concluded that a motion in the nature of a contested matter as provided for in Rule 9014 of the Federal Rules of Bankruptcy Procedure ... is the most appropriate, if not the exclusive method, whereby an unexpired lease may be assumed.
Id. at 390 (emphasis added). Therefore, this court concludes that filing a motion to sell in compliance with Bankruptcy Rule 9014 is sufficient to effect a transfer of rights under an executory contract and that a Trustee need not file a formal motion to assume an agreement before he may be permitted to sell the rights existing under it.
A motion to sell brought within the sixty day period and in accordance with Bankruptcy Rule 9014 serves the purpose for which § 365 was enacted; that is, it is an unequivocal act performed in a timely manner to dispose of estate property which happens to be an executory contract. It would be counterproductive to require the Trustee and an overburdened Bankruptcy Court to duplicate the effort, time and expense involved in filing two separate motions, providing notice twice, and conducting two separate adjudications to dispose of one estate asset simply because the asset may be characterized as an executory contract. It would be equally nonsensical to require the Trustee to use the technical term "assume" in a motion to sell in order to have the sale before the court in a confirmable posture.[13]See Tigr Restaurant v. Rouse S.I. Shopping Center, 79 B.R. 954 (E.D.N.Y.1987); By-Rite Distributing, Inc., 55 B.R. 740 (D.Utah 1985); Victoria Station, Inc., 69 B.R. 110 (9th Cir. BAP 1986).
Accordingly, this court holds that the sale of the executory contracts under the *377 facts at bar is confirmable notwithstanding the fact that the Trustee did not file a separate motion to assume or use the word "assume" in his motion to sell. The Trustee filed his motion to sell within sixty days of the order for relief and the proceedings otherwise complied with the applicable provisions of the Bankruptcy Code and Rules governing sales and governing the disposition of executory contracts. The motion to sell is, in such circumstances, the equivalent of a motion to assume or to assume and sell or to assume and assign and serves the purpose for which § 365 and Bankruptcy Rules 6006 and 9014 were enacted.
The motion to sell license agreements and the personal property of the estate is confirmable. An appropriate Order will be entered.
NOTES
[1] All exhibits were introduced by Tambellini as Plaintiff in the evidentiary hearing on the Motion for Relief from Stay and therefore are referred to by the exhibit number without party designation.
[2] Although Exhibit 2 states that Debtor had filed a Petition in Bankruptcy, the filing did not occur until December 2, 1987. Traggone's deposition stated that no written agreement was signed with Debtor. Exhibit 2 is signed by Lochra as Debtor's president and Traggone as an individual but Adtra Foods was never incorporated because Traggone's deal with Debtor fell through. See Deposition of Frank Traggone at page 3. Accordingly, no agreement with Adtra Foods existed.
[3] The testimony established that Debtor remains liable to General Host for the purchase price of the 1984 license rights and there was no evidence that Tambellini has a claim to this debt. That Debtor owes significant amounts to General Host on the purchase price of the 1984 license rights may be a partial explanation for the existence of negotiations between Traggone and General Host, although an inadequate one.
[4] The agreements between Debtor and Green Valley, as did that between Traggone and Debtor, provided for the buyer to assume Debtor's obligations on loans secured by vehicles to Union National Bank. Because of the Debtor's lack of equity in the vehicles, Union National Bank was granted relief from stay before the sale at issue occurred. Thus, at the sale hearing, all of Debtor's remaining assets were sold. See discussion infra at page 371.
[5] Prior to the hearing on the sale Tambellini raised the question whether the bankruptcy filing was valid because Debtor stated in answers to interrogatories that it does not have three directors. Tambellini argues, therefore, that the corporate resolution necessary to a bankruptcy filing could not be obtained. Tambellini introduced as Exhibit 8 a copy of Debtor's bylaws. Article 3, Section 1(a) provides that "[t]he number of directors of the corporation shall be three (3) unless and until otherwise determined by vote of a majority of the entire board of directors. The number of directors shall not be less than three unless all of the outstanding shares are owned beneficially and of record by less than three shareholders, in which event the number of directors shall not be less than the number of shareholders permitted by statute." Although the validity of the filing of the bankruptcy case is not properly before the Court, the Court notes that Debtor's bylaws show that it was incorporated in approximately January, 1984, as a Pennsylvania corporation. In Pennsylvania corporations are permitted to incorporate with one shareholder. See 15 Pa.S.A. § 1402 (P.L. 459, No. 216, § 20, as amended July 20, 1968, effective in 30 days). See also 15 Pa.S.A. § 1201. John Lochra testified that as of the date of the petition, and for the two years preceding, he was the sole shareholder and that he was the only shareholder at the time of incorporation. As part of the bankruptcy petition Lochra, as an authorized corporate officer, executed an unsworn declaration under penalty of perjury that the filing of the bankruptcy petition was authorized. The filing therefore is valid on its face and no evidence to the contrary was submitted.
[6] Furthermore, in the case of In Re Wheeling-Pittsburgh Steel Corp., 54 B.R. 385, 390-91 (Bankr.W.D.Pa.1985), Judge Bentz noted that the concept of adequate protection is not applicable when the item at issue is an executory contract (there, a lease), because § 365 determines the rights of the parties in such a case. The concept of adequate protection is based on the property interest of a secured creditor and does not apply in the executory contract arena.
[7] A second Order was entered granting relief from stay to Mellon Bank with respect to other assets. This Order's effectiveness was conditioned on, inter alia, the Trustee's failure to respond to it within a certain period. The Trustee's reply was the instant motion to sell wherein the Trustee stated that he could not determine the extent or validity of Mellon Bank's security interest and, therefore, Mellon Bank's collateral would be included in the sale and any lien held by Mellon Bank would be transferred to proceeds. Mellon Bank did not object to the sale; thus, the order granting it relief from stay is not in effect and the assets in which it was secured were part and parcel of the sale at issue.
[8] The Court notes that good faith of the buyer and seller is not at issue and that the sale comports with In re Abbotts Dairies of Pa., Inc., 788 F.2d 143 (3d Cir.1986).
[9] Although the 1986 agreement provides that Tambellini shall register the new mark, this obligation remains unfulfilled. That a trademark is not registered invalidates neither the protection of the trademark laws nor the trademark ownership rights, and a common law trademark exists. Warner Brothers, Inc. v. Gay Toys, Inc., 658 F.2d 76, 78 (2d Cir.1981) (interpreting 15 U.S.C. § 1127); G's Bottoms Up Social Club v. F.P.M. Industries, 574 F.Supp. 1490, 1495 (S.D.N.Y.1983).
[10] Although the Court in Zacherl Coal relied in part on pre-Code opinions of the Third Circuit, its analysis is persuasive particularly when viewed in light of Bankruptcy Rule 9014 which governs both sale proceedings and actions on executory contracts. See discussion, infra.
[11] Tambellini argues that the sale at bar cannot be confirmed because the hearing was not held until 63 days after the order for relief was entered. In Matter of Zacherl Coal Co., Inc., the hearing on the motion to sell was held within the sixty (60) day period. We do not think that this is a dispositive factor. The plain language of the Code and Rules impose no such requirement. Only § 365 imposes a time limit and that restriction is applicable only to the Trustee's conduct with respect to the executory contract. There is no statutory time limitation imposed on the Court. Accord Victoria Station, Inc., 69 B.R. 110 (9th Cir. BAP 1986); By-Rite Distributing Inc., 55 B.R. 740 (D. Utah 1985). See also Tigr Restaurant v. Rouse S.I. Shopping Center, 79 B.R. 954, 958 (E.D.N.Y.1987) ("virtually all" courts deciding the issue have ruled that the court need not hear a motion on an executory contract within sixty days).
[12] Furthermore, under the Lanham Act a Trustee in bankruptcy may sell the trademark itself. See John Rissman & Son v. Gordon & Ferguson, Inc., 78 F.Supp. 195 (D.Minn. 3rd Div.1948). See also May v. Goodyear Tire & Rubber Co., 10 F.Supp. 249 (D.Mass.1935); 15 U.S.C. § 1060. Therefore, rights under a license to use the trademark may certainly pass through a bankruptcy sale. Tambellini contends in its brief that the Trustee's motion to sell was defective because, inter alia, the fair market value of the trademark was not alleged; however, the trademark is not what is sold here.
[13] Parenthetically the court notes that when the intended disposition of an executory contract is to a non-debtor third party, a motion to sell may be more appropriate than one to assume inasmuch as circumstances may prohibit or make impractical the implementation by the Trustee of such § 365 requirements as a cure of default or adequate assurance of future performance. An offer from a third party to buy typically addresses the default and provides the cure and/or adequate assurance needed to satisfy § 365. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2587953/ | 205 P.3d 131 (2009)
STATE
v.
GANNON.
No. 82213-1.
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/1617560/ | 38 So. 3d 1230 (2010)
Elaine SETLIFF, et al.
v.
Aaron SLAYTER, et al.
No. 09-1512.
Court of Appeal of Louisiana, Third Circuit.
June 2, 2010.
*1231 Henry H. Lemoine, Jr., Attorney at Law, Pineville, Louisiana, for Defendant/Appellant, Aaron Slayter.
Thomas D. Davenport, Jr., The Davenport Firm, Alexandria, Louisiana, for Plaintiffs/Appellees, Elaine Setliff, Louisiana Lagniappe Realty, LLC.
Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and DAVID E. CHATELAIN, Judges.
DAVID E. CHATELAIN[*], Judge Pro Tem.
The defendant, Aaron Slayter, appeals from a final judgment rendered in favor of the plaintiffs, Elaine Setliff and Louisiana Lagniappe Realty, LLC (collectively referred to as LLR), awarding them $14,800.00 in damages, plus judicial interest, court costs, and attorney fees of $3,612.15 as a result of Slayter having breached a listing agreement. We affirm.
FACTS AND PROCEDURAL HISTORY
On March 24, 2006, Slayter and LLR signed a listing agreement to facilitate the sale of a home in Pineville, Louisiana, of which Slayter was the purported owner. The agreement provided that the home would be listed for $529,000.00. The term of the agreement was to be from March 24, 2006 until October 1, 2006. In June of 2006, Slayter informed LLR that there was a possibility that the home's slab was defective. In later correspondence sent on July 18, 2006, Slayter advised LLR that there was no slab damage and that he wanted to increase the home's listing price to $950,000.00. Included in the correspondence was a statement that Slayter would remove LLR's signs if they were still on his property on July 19, 2006. On August 7, 2006, LLR sent a letter to Slayter releasing his property as withdrawn due to his "rude and obnoxious behavior."
On August 8, 2006, LLR received a call informing it that Slayter had put up a sign on his property that read "In My Opinion LOUISIANA LAGNIAPPE REALTY IS THE WORST REALTOR I'VE EVER DEALT WITH." The sign included the LLR trademark, a depiction of the state of Louisiana with a magnolia flower and cross. On August 24, 2006, LLR filed a petition for damages and for injunctive relief against Slayter[1] seeking damages for breach of contract and slander/defamation and requesting that an injunction issue barring Slayter from displaying any signs concerning LLR or displaying its trademark.
The injunction was heard on August 3, 2007. In written reasons for ruling dated October 26, 2007, the trial court enjoined Slayter from using or displaying the LLR trademark. The trial court declined to issue an injunction preventing Slayter from using the words contained in the complained-of sign but warned that if he were to erect another similar sign, it would be at his own peril and at the risk that money damages may be awarded against him.
In February 2008, LLR filed a motion for partial summary judgment on the issue of whether Slayter had breached the listing agreement. Slayter opposed the motion. On June 16, 2008, the trial court granted LLR's motion. Slayter filed an application for supervisory writs, which this court denied on the basis that he had an adequate remedy by appeal. See Setliff v. Slayter, an unpublished writ bearing Docket Number 08-897 (La.App. 3 Cir. *1232 8/12/08). Thereafter, Slayter filed an appeal of the partial summary judgment on liability. In Setliff v. Slayter, 08-1337 (La. App. 3 Cir. 1/7/09), 1 So. 3d 799, we dismissed the appeal, finding that judicial economy would be served by reviewing the partial judgment after full adjudication of all the remaining claims at issue. In June of 2008, LLR filed a motion for partial summary judgment on the issue of damages incurred as a result of Slayter's breach of the listing agreement. The trial court signed a judgment on March 25, 2009, awarding LLR damages in the amount of $14,800.00,[2] plus judicial interest, court costs, and attorney fees of $3,612.15. Slayter appealed. Again we dismissed the appeal, finding that "appellate review of the partial summary judgments regarding the [breach of] contract issue would be a waste of judicial resources" because LLR's defamation claim was still pending. Setliff v. Slayter, 09-817, p. 3 (La.App. 3 Cir. 8/26/09), 19 So. 3d 43, 45.
Thereafter, LLR filed a motion for and final judgment seeking a final judgment in the substance of the two previously rendered partial summary judgments. Slayter filed a peremptory exception of nonjoinder of necessary party[3] in the trial court on September 29, 2009, asserting for the first time that the owner of the property made subject of the listing agreement was the "Aaron L. Slayter, Sr.1998 Revocable Trust [the trust]." Therein, Slayter excepted to LLR's motion for final judgment on the ground that LLR should be ordered to amend its pleadings to name the trust as a party defendant. Slayter's exception was set for contradictory hearing on November 18, 2009. Nevertheless, the trial court signed a motion for and final judgment on October 7, 2009, in favor of LLR and against Slayter in the amount of $14,800.00, plus judicial interest, court costs, and attorney fees in the amount of $3,612.15 and declaring that LLR had abandoned all other claims and causes of action contained in its petition for damages. The judgment specifically provided that it was "designated as a final judgment."
On October 12, 2009, Slayter filed a motion for devolutive appeal of the October 7, 2009 final judgment. He is now before this court presenting the following assignments of error: 1) the trial court erred in naming Slayter as the owner of the property, although it was shown that the trust was the owner of the property; 2) the trial court erred in finding that Slayter had breached the contract when it was proven that Setliff was the one who terminated the contract; 3) the trial court erred in finding that the listing agreement was a valid contract; and 4) the trial court erred in awarding damages with judicial interest, court costs, and attorney fees to Setliff, who terminated the contract, and against Slayter, who did not rightfully own the property.[4]
DISCUSSION
Appellate courts review summary judgments de novo, using the same criteria *1233 applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So. 2d 730. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed "to secure the just, speedy, and inexpensive determination of every action...." La.Code Civ.P. art. 966(A)(2).
Assignment of Error Number One
Slayter asserts that the trial court erred in naming him as the owner of the property made subject of the listing agreement when it was shown that the trust was, in fact, the owner of the property. This assertion is patently untrue. Slayter did not present the trial court with the argument that the trust was the owner of the subject property until he filed his exception of nonjoinder of necessary party on September 29, 2009, months after the hearings concerning the two partial summary judgments at issue in this appeal took place. In addition, because Slayter filed this appeal before the scheduled hearing date on his exception, the trial court was not given the opportunity to rule on the merits of the exception of nonjoinder. As the issue of ownership of the subject property was not litigated in the trial court, it is axiomatic that the trial court was neither shown that the trust was the owner of the property nor did it name Slayter as owner of the property. Slayter's first assignment of error is meritless.
Assignment of Error Number Two
In his second assignment of error, Slayter contends that the trial court erred in finding that he breached the listing agreement when it was proven that Setliff terminated the contract. Apparently Slayter has forgotten that he admitted, under oath, during the August 3, 2007 injunction hearing, that he had both breached and terminated the listing agreement by way of the July 18, 2006 letter that he sent to LLR, informing it that he wished to significantly increase the asking price of the home and directing LLR to remove its signs from his property. He further admitted, under oath, that he sold the Lenora Street property[5] via a bond for deed contract on August 18, 2006, for an amount significantly less than the asking price noted in the listing agreement. Such admissions clearly qualify as judicial confessions under La.Civ.Code art. 1853.[6] In light of those judicial confessions, we cannot say that the trial court erred in finding that he breached the listing agreement. Slayter's second assignment of error has no merit.
Assignments of Error Numbers Three and Four
Next, Slayter argues that because he was not the "proper owner" of the subject property, the trial court erred in finding that the listing agreement was a valid contract and in finding him liable for damages to LLR for his breach of the agreement. He fails to offer any codal or jurisprudential authority in support of his arguments. Slayter does not question the amount of damages or attorney fees awarded.
*1234 On the other hand, LLR points out that because Slayter does not contend that the listing agreement was improperly formed, that consent was lacking, or that the cause of the listing agreement was unlawful, the contract should be upheld and enforced. Moreover, LLR submits that it is immaterial whether Slayter or the trust is the actual owner of the subject property because Slayter entered into a personal obligation, rather than a real obligation, when he signed the listing agreement. Therefore, it asks this court to affirm the trial court's judgment in its entirety.[7]
Uniform RulesCourts of Appeal, Rule 1-3 provides that "[t]he Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise." As mentioned previously, the issue of ownership of the subject property was not "submitted to the trial court." Nevertheless, because the interest of justice will be served by our bringing this dispute to a conclusion, we will determine whether the trial court erred in enforcing the terms of the listing agreement and awarding LLR damages for Slayter's breach of the agreement.
We are cognizant of the fact that the failure to join a party to an action is a peremptory exception that may be noticed by the trial or appellate court on its own motion. La.Code Civ.P. arts. 645 and 927. Although a copy of the trust made the subject of Slayter's exception of nonjoinder is attached to the appellant's brief that he filed in this court, the record on appeal does not contain a copy of the trust. Courts of appeal are courts of record; thus, we have no authority to consider the trust document. See Murray v. Town of Mansura, 06-355, p. 18 (La.App. 3 Cir. 9/27/06), 940 So. 2d 832, 844, writ denied, 06-2949 (La.2/16/07), 949 So. 2d 419, cert. denied, 552 U.S. 915, 128 S. Ct. 270, 169 L. Ed. 2d 197 (2007) (quoting State ex. rel. Guste v. Thompson, 532 So. 2d 524, 527, n. 2 (La.App. 1 Cir.1988)), wherein this court noted that:
The briefs of the parties assert facts which are not in the record and refer to exhibits which have not been filed in evidence in the record. An appellate court may not consider evidence which is outside the record. La.C.C.P. art. 2164. The briefs of the parties and the attachments thereto are not part of the record on appeal.
Because we cannot consider the trust document relied upon by Slayter, we are unable to determine whether his exception of nonjoinder has any merit. Accordingly, we will now determine whether Slayter, personally, was nonetheless bound by the listing agreement.
As provided in La.Civ.Code art. 1766, "[a]n obligation is strictly personal when its performance can be enforced only by the obligee, or only against the obligor." Louisiana Civil Code Article 1763 defines a real obligation as "a duty correlative and incidental to a real right." As a consequence of something being classified as a real obligation, that obligation "is transferred to the universal or particular successor who acquires the ... immovable thing to which the obligation is attached, without a special provision to that effect." La.Civ.Code art. 1764. As noted by Professor Yiannopoulos of Tulane University in his Louisiana Civil Law Treatise:
*1235 [T]he civilian tradition ... distinguishes sharply between the law of property and the law of obligations. A real right is a right that a person has in a thing, a matter of property law. A personal right is a right that a person has against another person to demand a performance, a matter of the law of obligations.
YIANNOPOULOS, 2 LOUISIANA CIVIL LAW TREATISE: PROPERTY, § 201 at 384 (4th ed.2001). Further:
A personal right may be defined as the legal power that a person (obligee) has to demand from another person (obligor) a performance consisting of giving, doing, or not doing a thing. The Louisiana Supreme Court has declared that "a personal right ... defines man's relationship to man and refers merely to an obligation one owes to another which may be declared only against the obligor."
YIANNOPOULOS, 2 Louisiana Civil Law Treatise: Property, § 203 at 386 (4th ed.2001) (footnote omitted).
In the listing agreement, LLR agreed to list for sale the Lenora Street property, of which Slayter professed to be the owner, for a set price. The listing agreement set the broker's commission at 4% of the gross sales price. Therein, Slayter represented that to the best of his knowledge, he was "the sole entit[y] having an ownership interest in the property." Slayter also agreed that he would "cooperate fully and not ... obstruct the sale of the property during the term of this agreement." The listing agreement further provided that, upon Slayter's failure to pay the agreed-upon commission, he would "be responsible for all actual attorney fees and expenses" incurred in enforcing the agreement.
Clearly, the listing agreement bound Slayter personally, regardless of whether he owned the Lenora Street property. The property was simply the subject of the agreement. Whether, as he now claims, he was not the actual owner of the property is of no moment to the resolution of this appeal. Given the fact that Slayter admitted that he had breached the listing agreement in both his July 18, 2006 letter to LLR and in his sale of the Lenora Street property during the set term of the listing agreement, the trial court did not err in granting summary judgment finding that he breached the listing agreement and in awarding LLR damages and attorney fees as a result of that breach. Moreover, because Slayter has not challenged the amount of damages and/or attorney fees awarded to LLR, the judgment will be affirmed in its entirety. Slayter's third and fourth assignments of error lack merit.
DECREE
For the foregoing reasons, the final judgment of the trial court in favor of the plaintiffs, Elaine Setliff and Louisiana Lagniappe Realty, LLC, and against the defendant, Aaron Slayter, awarding the plaintiffs damages of $14,800.00, plus judicial interest, court costs, and attorney fees of $3,612.15 is affirmed. All costs of this appeal are assessed against Aaron Slayter.
AFFIRMED.
NOTES
[*] Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.
[1] The petition named as an additional defendant Phillips Signs, the business that made the signs at Slayter's direction.
[2] The trial court explained in its March 11, 2009 reasons for judgment that it arrived at the $14,800.00 figure by calculating 4% of $370,000.00, the amount Slayter sold the property for in the bond for deed contract.
[3] See La.Code Civ.P. arts. 641 and 642.
[4] Slayter also alleged that the trial court's findings were contrary to law and to the evidence, and he requested that this court conduct an errors patent review of the record. Because Slayter did not brief these two assignments of error, we will consider them abandoned. See Uniform RulesCourts of Appeal, Rule 2-12.4. In addition, we note that the article authorizing an appellate court to conduct an error patent review of the record in a criminal appeal, La.Code Crim. P. art. 920, has no counterpart applicable to civil appeals.
[5] At no time during the August 3, 2007 injunction hearing did Slayter mention the trust.
[6] Louisiana Civil Code Article 1853 provides, in pertinent part, that "[a] judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it."
[7] In its appellee brief, LLR requests that we award it additional attorney fees for the work performed on this appeal. Because it did not file an answer to Slayter's appeal, however, we are precluded from granting LLR any relief on appeal. See Perron v. S. Landry Parish Econ. Indus. Dev. Dist., 03-1061 (La. App. 3 Cir. 3/3/04), 867 So. 2d 86, writ denied, 04-1502 (La.10/1/04), 883 So. 2d 1009. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617983/ | 200 N.W.2d 62 (1972)
In the Matter of the Application For Disciplinary Action Against Roger A. McKINNON, a Member of the Bar of the State of North Dakota.
No. 8785.
Supreme Court of North Dakota.
March 28, 1972.
Dale W. Moench, Dickinson, for Grievance Commission of the Supreme Court.
Ward M. Kirby, Dickinson, Chairman of the Grievance Commission of the Supreme Court.
Roger A. McKinnon, pro se.
ERICKSTAD, Judge.
The Grievance Commission, established under Rules of Disciplinary Procedure adopted by this Court on June 21, 1965, to take effect August 1, 1965, has filed with our Court a complaint asserting five separate causes of action against Roger A. McKinnon, an attorney admitted to practice law in this Court on the 17th of August, 1950.
The complaint through its separate causes of action attributes various acts of misconduct to Mr. McKinnon and concludes with the prayer that a hearing be held upon the charges, that a report be made of such hearing to this Court, and that this Court thereafter take such action as it deems proper.
The complaint, dated November 29, 1971, signed by the chairman of the Grievance Commission and by the attorney appointed by the Commission to prosecute the matter, was served upon Mr. McKinnon on December 9, 1971. When no answer to the complaint was filed by Mr. McKinnon, the attorney for the Grievance Commission filed a motion with this Court asking that this Court suspend or revoke Mr. McKinnon's certificate of admission to practice law in this State. This motion was noticed for hearing on the 1st day of February, 1972, at 9:30 a. m. On that date, Mr. McKinnon did not appear, but counsel for the Grievance Commission appeared and informed the Court that Mr. McKinnon desired a continuance of the matter because of Mr. McKinnon's inability to appear at that time. On February 16, 1972, this Court issued an order requiring Mr. McKinnon to appear before it and show cause on March 8, 1972, at 10 o'clock a. m., why this Court should not suspend or revoke his certificate of admission to practice law in the courts of this State. This order was duly served upon Mr. McKinnon and on the date scheduled Mr. McKinnon appeared before this Court, at which time he explained that the reason that he had not filed any written answer to the complaint was that he did not have any defense to it. He explained that John Barleycorn had been the primary cause of his difficulties and he asked this Court that it not suspend or revoke his certificate of admission *63 to practice, but that it place him on probation.
The first cause of action alleges a failure to properly supervise the administrator of the Frank H. Kalberer estate in McLean County, in that he permitted the filing of false state and federal estate tax returns, wherein gifts to Mr. McKinnon's children and to his nieces and nephews were treated as administrative expenses, and asserts the charging of excessive attorney fees in connection with that estate.
The Grievance Commission asserts that this conduct constitutes a violation of DR 1-102 of Canon 1 of the Code of Professional Responsibility and Section 27-14-02 of the North Dakota Century Code.
The second cause of action asserts that Mr. McKinnon agreed to represent Mr. Kenneth Rudolph for the purpose of prosecuting an appeal from a judgment of conviction on a charge of burglary in Stutsman County and that in connection therewith he made numerous representations that were grounds for an appeal; that he indicated to Mr. Rudolph and his parents that he was pursuing the appeal and that he had perfected the appeal, while in fact no appeal had been perfected and the transcript of the proceedings had not been ordered, even though the trial court had advised Mr. McKinnon that such a transcript would be made available at no cost to Mr. Rudolph.
The Commission asserts that this conduct constitutes a violation of Canons 5, 6 and 7 of the Code of Professional Responsibility and is in violation of Section 27-14-02 of the North Dakota Century Code.
The third cause of action asserts that Mr. McKinnon was employed by Richard Klooten to represent him on a charge of aggravated assault and battery and that in that connection he was paid $500 as a retainer fee and that upon entry of a plea of guilty Mr. Klooten was sentenced to one year in the State Penitentiary, and notwithstanding repeated requests directly and through friends that Mr. McKinnon contact or visit Mr. Klooten in the Penitentiary, Mr. McKinnon never did contact him while in the Penitentiary, but instead did divulge secrets of his client to a third party in a public restaurant in the city of Bismarck.
The Grievance Commission asserts that this conduct constitutes a violation of Canons 4, 6 and 7 of the Code of Professional Responsibility and Section 27-14-02 of the North Dakota Century Code.
The fourth cause of action asserts that while in Minneapolis, Minnesota, on September 28, 1970, to represent a client, Mr. McKinnon in effect used Mr. John R. Carroll of the law firm of Maloney, Carroll and Olson, of 1210 First National Bank Building, Minneapolis, Minnesota, as a reference in cashing a check in the amount of $175 drawn on Account No. 92-865 of the Dakota National Bank of Bismarck, North Dakota, which account on that date was closed, necessitating that Mr. Carroll make that check good.
The Grievance Commission asserts that the writing of this no-account check under the circumstances constitutes a violation of the Code of Professional Ethics, especially DR 1-102(A)(4), and Section 27-14-02 of the North Dakota Century Code.
The fifth cause of action asserts that Mr. McKinnon was employed by one Ewald Baisch in June of 1969 to represent him before the Employment Security Bureau, Unemployment Compensation Division, and to take an appeal from that decision; that in that connection he received from Mr. Baisch $20 as a filing fee and $75 as attorney fees to prosecute the appeal but failed to do so.
The Grievance Commission asserts that this conduct constitutes a violation of Canon 1 of the Code of Professional Responsibility and Section 27-14-02 of the North Dakota Century Code.
The Code of Professional Responsibility was adopted by the House of Delegates of the American Bar Association on August *64 12, 1969, to become effective for American Bar Association members on January 1, 1970. See Code of Professional Responsibility and Canons of Judicial Ethics, printed by Martindale-Hubbell, Inc., copyright 1969 by American Bar Association. The Code was also adopted by the North Dakota State Bar Association on the 25th day of June, 1970, at its annual meeting held at Williston, North Dakota. See 47 N.D.L.Rev. 149 (1970).
The conduct alleged in the first, fourth and fifth causes of action violates Canon 1 and Disciplinary Rule 1-102, especially DR 1-102(A) (4).
"DR 1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
Code of Professional Responsibility and Canons of Judicial Ethics, American Bar Association (1969).
The conduct alleged in the second and third causes of action violates Canons 4, 5, 6 and 7.
"CANON 4
"A Lawyer Should Preserve the Confidences and Secrets of a Client"
"CANON 5
"A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client"
"CANON 6
"A Lawyer Should Represent a Client Competently"
"CANON 7
"A Lawyer Should Represent a Client Zealously Within the Bounds of the Law"
Section 27-14-02, N.D.C.C., in Subsections 1 through 6, enumerates grounds for which a lawyer's certificate of admission to the Bar of this State may be revoked or suspended. Subsection 7 of that section provides that a lawyer's certificate may be revoked or suspended if he has "committed any other act which tends to bring reproach upon the legal profession."
It is our view that Mr. McKinnon's conduct has brought reproach upon the legal profession.
We conclude that we must, for the protection of the public and the preservation of the reputation of the members of the Bar, revoke Mr. McKinnon's certificate of admission as an attorney and counselor at law to the Bar of this State.
It is so ordered.
STRUTZ, C. J., and PAULSON, KNUDSON and TEIGEN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618019/ | 55 Wis. 2d 499 (1972)
200 N.W.2d 65
STATE EX REL. JOHNSON, Petitioner,
v.
HERSHMAN, Superintendent, Respondent.
Supreme Court of Wisconsin.
Argued August 15, 1972.
Decided September 6, 1972.
For the petitioner there was a brief by Craig E. Miller and David E. Schultz, Corrections Legal Services Program, Milwaukee, and oral argument by Mr. Miller.
*500 For the respondent the cause was argued by Richard J. Boyd, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
PER CURIAM.
Ronald Johnson has petitioned this court for a writ of habeas corpus on the ground he became eighteen years of age on March 11, 1972, and therefore under ch. 213, Laws of 1971, he should be discharged from the custody of the respondent Roland C. Hershman, Superintendent of the Wisconsin School for Boys at Wales, Wisconsin.
Johnson was found delinquent on November 24, 1967, and custody was given to the department of health & social services and he is now confined at Wales. Ch. 213, Laws of 1971, became effective on March 23, 1972, and in effect substituted age eighteen for age twentyone in many of the laws governing juveniles. One section so amended was sec. 48.53 (2), Stats. The construction of this section is the basic issue in this case. As amended, sec. 48.53 (2)[1] provides that children shall be discharged when they reach the age of eighteen. The state argues the amendment is prospective only and since Johnson was eighteen years of age at the time the law became effective he could not under the language of the statute "reach the age of 18" and therefore the amendment is not applicable to him.
This section provides an exception when a child need not be discharged upon reaching age eighteen by allowing the department to petition the court, which adjudged *501 the child delinquent, to retain legal custody of him in accordance with sec. 54.32, Stats. This latter section provides for the continuance of control by the department of those persons whose discharge it considers would be dangerous to the public because of the person's mental or physical deficiency, disorder or abnormality. In such a case, the department must make an order directing that the child remain subject to its control beyond the date when he becomes of age and must make an application to the committing court for a review of that order at least ninety days before the time the child would normally be discharged because of age.
It is argued that if the amendment is applicable to those children who became eighteen years of age prior to the effective date of the act, that the department would be foreclosed from making such an application to the court as the ninety days have expired. On the other hand, Johnson argues that while ch. 213, Laws of 1971, may be defective and harbors inconsistencies, nevertheless it applies to him and he is entitled to a discharge because he is eighteen years of age.
We do not read ch. 213, Laws of 1971, as intending it to be effective only for children becoming eighteen years of age after its effective date. We think a reasonable construction of sec. 48.53 (2), Stats., as amended, is that those children who were eighteen years of age at the time the act was passed are entitled to be discharged, but that the department has a right to petition the court, which had adjudged the child delinquent, for legal custody of that child if the department believes his discharge to be dangerous to the public because of his mental or physical deficiency, disorder or abnormality. The department therefore shall be given ninety days from the date of the rendering of this opinion in which to make an application under sec. 54.32; and upon failure to make such an application within such time, the petitioner *502 Ronald Johnson will be entitled to his discharge. Under this construction of sec. 48.53 (2), the petition for habeas corpus at this time is denied.
NOTES
[1] "(2) All children adjudged delinquent, whose legal custody has been transferred to the department, and who have not been discharged under sub. (1) shall be discharged when they reach the age of 18, except that the department may, in accordance with s. 54.32, petition the court which adjudged the person delinquent to retain legal custody of that person. Sections 54.33, 54.34 and 54.35 apply to such proceeding to retain legal custody." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618079/ | 200 N.W.2d 243 (1972)
STATE of South Dakota, Plaintiff and Respondent,
v.
Gilbert KIGGINS, Defendant and Appellant.
No. 11044.
Supreme Court of South Dakota.
August 30, 1972.
William D. Kenyon, Sioux Falls, for defendant and appellant.
Gordon Mydland, Atty. Gen., Frances M. Niemoller, Asst. Atty. Gen., Pierre, Sam D. Sechser, Deputy State's Atty., Sioux Falls, for plaintiff and respondent.
HANSON, Presiding Judge.
Defendant, Gilbert Kiggins, was found guilty of the crime of escaping from a county jail. He now contends the evidence is insufficient to sustain his conviction under SDCL 24-12-2 which defines the crime charged as follows:
"Every prisoner confined in any prison other than the state penitentiary, or in the custody of any officer or person as a prisoner at any place, who escapes therefrom is punishable by imprisonment in the state penitentiary not exceeding two years or in a county jail not exceeding one year. If such prisoner is under sentence of imprisonment at the time of such escape, his sentence on conviction of such escape shall commence at the expiration of the original term of his imprisonment."
The evidence is not in dispute. On March 29, 1971 Kiggins was sentenced to serve a term of three months in the Minnehaha County jail. With the approval of the committing judge Kiggins was *244 granted work-release privileges in order to continue working for Lester's Auto Salvage in the City of Sioux Falls. Under this program defendant was released from jail about 7:00 o'clock each morning with instructions to return at 4:15 in the afternoon. When released from jail he was free from official physical restraint. He was responsible for getting to and from his place of employment and was never accompanied by a guard or jailer. His employer had no responsibility for his actions or conduct.
From March 30, 1971 to April 14, 1971 Kiggins honored his work-release privilege and daily returned to the county jail at the appointed time. On April 14, 1971 he was routinely released from jail in the morning but failed to return in the afternoon. Several months later he was apprehended in Wisconsin and returned to this state.
Defendant contends that when he was released from the Minnehaha County jail to work for a private employer he was not confined in any prison nor was he in custody of any officer or person as a prisoner. Consequently, the evidence is insufficient to sustain his conviction of the crime of escape as defined in SDCL 24-12-2.
The use of force is not an element of the crime of escape. See Annot., "Escape or prison breach as affected by the means employed", 96 A.L.R.2d part II, p. 522. As the majority opinion concluded in People v. Richards, 247 Mich. 608, 226 N.W. 651, "In order to be guilty of an escape, a prisoner need not break doors or walls; he escapes, if he removes himself from the imposed restraint over his person and volition." Also see Meadows v. State, 3 Md.App. 441, 239 A.2d 767. Nor is a specific intent to escape an essential ingredient. A general intent not to return to the place of confinement is all that is required, People v. Haskins, 177 Cal. App. 2d 84, 2 Cal. Rptr. 34. However, "It is essential to conviction for escape, and the offense of escape presupposes, that at the time of the prisoner's departure he is in actual lawful custody which may be legally terminated only on his death or discharged by due process of law." 30A C.J.S. Escape § 5a, p. 878. See also State v. Snofly, S. D., 192 N.W.2d 133.
Defendant was lawfully confined in the Minnehaha County jail. The privilege of work-release merely extended the limits of his confinement. Until his discharge by due process of law he remained under the legal restraint of his sentence and in constructive custody of the jail. His wilful abscondment from restraint and custody constituted an escape. McCullough v. United States, 8 Cir., 369 F.2d 548; Gaskill v. State of Delaware, 1 Storey 107, 51 Del. 107, 138 A.2d 500; State ex rel. Johnson v. Warden of Maryland Penitentiary, 196 Md. 672, 75 A.2d 843; and People v. Haskins, supra.
Affirmed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2587987/ | 205 P.3d 888 (2009)
346 Or. 116
WHITLOCK
v.
HILL.
No. (S056872).
Supreme Court of Oregon.
March 26, 2009.
Petition for review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617646/ | 190 S.W.3d 623 (2006)
COX HEALTH SYSTEMS, f/k/a Lester E. Cox Medical Systems, a Missouri Not-For-Profit Corporation, Respondent,
v.
DIVISION OF WORKERS' COMPENSATION OF the DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, Appellant.
No. WD 65530.
Missouri Court of Appeals, Western District.
May 9, 2006.
*624 Jason N. Shaffer, Springfield, MO, for Respondent.
Jeremiah W. (Jay) Nixon, Atty. Gen., Brett W. Berri, Assistant Attorney General, Jefferson City, MO, for Appellant.
Before BRECKENRIDGE, P.J., and HOWARD and HOLLIGER, JJ.
*625 VICTOR C. HOWARD, Judge.
The Division of Workers' Compensation ("Division") appeals from a writ of mandamus ordering it to consider certain medical fee dispute applications filed with the Division by Cox Health Systems ("Cox"). The Division's sole point on appeal is that the trial court erred in issuing its writ of mandamus ordering the Division to consider Cox's medical fee dispute applications identified in trial exhibits A, B, and C because its judgment erroneously declares and applies the law in that section 287.140[1] and 8 CSR 50-2.030 establish procedural requirements including time limitations for applications to be submitted, and the Division properly rejected Cox's applications, which were untimely.
We affirm.
Factual and Procedural Background
This case is a dispute over the operation of sections 287.140 and 8 CSR 50-2.030, which govern medical fee disputes associated with treatments compensable under the workers' compensation system. Under section 287.140, the Division is granted jurisdiction to hear all disputes over compensable medical charges, and health care providers are bound by the Division's determination as to the reasonableness of those charges. The statute also requires the Division to promulgate rules governing the procedure for hearing medical fee disputes, and the Division has done so at 8 CSR 50-2.030.
The parties state in their joint stipulation of facts that health care providers that have been authorized to provide services to an injured worker can avail themselves of the Division's medical fee dispute hearing processes under one of two circumstances: if either (1) bills for services have not been paid, or (2) the health care provider disputes the amount paid for services by an employer or its insurance carrier. The Division refers to disputes in the former category as "applications for direct payment." Properly filed applications for direct payment are made a part of and are heard with the underlying workers' compensation case. The Division refers to disputes in the latter category as "applications for payment of additional reimbursement of medical fees." Properly filed applications for payment of additional reimbursement of medical fees are heard separately from the underlying workers' compensation case, and the employee is not a party to the proceeding.
The Division rejected numerous medical fee dispute applications filed with the Division by Cox. Cox then filed a petition for a writ of mandamus, prohibition and/or declaratory judgment with the trial court, alleging that the Division had a ministerial duty to accept and adjudicate all its medical fee disputes without regard to whether the underlying workers' compensation case was open or closed.
Cox submitted with its petition, and the trial court admitted into the trial record, three voluminous appendices consisting of copies of returned applications falling in both of the categories described above (Exhibits A, B, and C). Four examples, denominated in counts I, II, III, and IV in Cox's petition were stipulated to be representative of those contained in the appendices:[2]
1. The M.A. application, in which an application for payment of additional reimbursement *626 of medical fees, alleging that no payment had been made, was returned to Cox because the underlying workers' compensation case had been settled/dismissed.
2. The M.B. application, in which an application for payment of additional reimbursement of medical fees, alleging that only partial payment had been made, was returned to Cox because the underlying workers' compensation case had been closed.
3. The C.B. application, in which an application for payment of additional reimbursement of medical fees, alleging that only partial payment had been made, was returned to Cox because the underlying workers' compensation case was closed and the statute of limitations had run; and
4. The D.M. application, in which an application for direct payment, alleging that no payment had been made, was returned to Cox because the underlying workers' compensation case was settled/dismissed.
As indicated by the above examples, and agreed to by the parties in their joint stipulation of facts, the Division has returned Cox's applications whenever (1) the employee reached a settlement with his or her employer and/or its insurer in the workers' compensation claim prior to Cox's application; (2) the employee's workers' compensation claim was dismissed or otherwise administratively closed prior to Cox's application; and (3) the application exceeded the statute of limitations.[3]
The trial court found for Cox on the issue of mandamus and issued its writ on May 13, 2005. It denied relief in the form of prohibition, and dismissed Count V (declaratory judgment) as moot. The court specifically found that the Division "has a ministerial duty to accept the Medical Fee Dispute Applications identified in trial Exhibits A, B and C and [that] the health care provider properly filed the Medical Fee Dispute Applications contained in Exhibits A, B and C." It ordered the Division "to consider those Medical Fee Dispute Applications filed as of the stamped date contained on said documents." The Division appeals.
Standard of Review
"Generally, mandamus is reviewed on appeal as any other non-jury civil matter." Lewis v. Bellefontaine Habilitation Ctr., 122 S.W.3d 105, 107-08 (Mo.App. W.D.2003). We will sustain the judgment of the trial court "unless no substantial evidence exists to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Id. at 108. "Questions of law are matters reserved for de novo review by the appellate court, and we therefore give no deference to the trial court's judgment in such matters." Commerce Bank, N.A. v. Blasdel, 141 S.W.3d 434, 442 (Mo.App. W.D. 2004) (quoting H & B Masonry Co., Inc. v. Davis, 32 S.W.3d 120, 124 (Mo.App. E.D. 2000)).
Discussion
The Division's sole point on appeal is that the trial court erred in issuing its writ of mandamus ordering the Division to consider Cox's medical fee dispute applications identified in trial exhibits A, B, and C because its judgment erroneously declares and applies the law in that section 287.140 and 8 CSR 50-2.030 establish procedural requirements including time limitations *627 for applications to be submitted, and the Division properly rejected Cox's applications, which were untimely.
"Mandamus is a discretionary writ, and there is no right to have the writ issued." State ex rel. Mo. Growth Ass'n v. State Tax Comm'n, 998 S.W.2d 786, 788 (Mo. banc 1999). "The purpose of the writ is to execute, not adjudicate." Id. "Mandamus will lie only upon an unequivocal showing that a public official failed to perform a ministerial duty imposed by law. To be entitled to relief, the applicant must show a clear, unequivocal, specific, and positive right to have performed the act demanded." State ex rel. Nixon v. Kinder, 129 S.W.3d 5, 7 (Mo.App. W.D.2003) (citations omitted). "[M]andamus cannot be used to control the judgment or discretion of a public official. . . ." State ex rel. Bd. of Health Ctr. Trs. of Clay County v. County Comm'n of Clay County, 896 S.W.2d 627, 631 (Mo. banc 1995).
Provisions concerning the Division's jurisdiction over medical fee disputes are found throughout section 287.140 and 8 CSR 50-2.030. They are as follows:
Pursuant to section 287.140.3, "[t]he division or the commission . . . shall . . . have jurisdiction to hear and determine all disputes as to such [medical fee] charges."
Section 287.140.4 provides:
The division shall, by regulation, establish methods to resolve disputes concerning the reasonableness of medical charges, services, or aids. This regulation shall govern resolution of disputes between employers and medical providers over fees charged, whether or not paid, and shall be in lieu of any other administrative procedure under this chapter. The employee shall not be a party to a dispute over medical charges, nor shall the employee's recovery in any way be jeopardized because of such dispute.
Section 287.140.13(5) provides:
If an employer or insurer fails to make a payment for authorized services provided to the employee by a hospital, physician or health care provider pursuant to this chapter, the hospital, physician or other health care provider may proceed pursuant to subsection 4 of this section with a dispute against the employer or insurer for any fees or other charges for services provided.
In accordance with section 287.140.4, the Division has established methods to resolve medical fee disputes, which are found in 8 CSR 50-2.030.[4] The first section of 8 CSR 50-2.030 that describes such procedures provides as follows:
(1) Procedures pertaining to applications for payment of additional reimbursements.
(A) If an employer or insurer disputes the reasonableness of a medical fee or charge, the employer or insurer shall notify the health care provider in writing that the medical charge is being disputed and shall explain the basis for the dispute. The employer or insurer may tender partial payment and the health care provider may accept payment of the amount tendered without prejudice to the filing of an application for payment of additional reimbursements of medical fees. Upon receiving the written notice of the dispute, the health care provider shall contact the insurer or employer to attempt to resolve the dispute. *628 If the negotiation is unsuccessful and more than ninety (90) days have elapsed since the date of first billing, the health care provider may file an application for payment of additional reimbursement of medical fees with the division.
Eight CSR 50-2.030(1)(O) provides:
If the health care provider filed an application for payment of additional reimbursement of medical fees prior to the underlying workers' compensation case is [sic] dismissed or settlement is approved by the administrative law judge or legal advisor, or an award entered by the administrative law judge, or within the applicable period of limitations, the division retains jurisdiction to hear the dispute. If the parties file an application for payment of additional reimbursement of medical fees after the underlying workers' compensation case is dismissed or settlement is approved by the administrative law judge or legal advisor, or an award is entered by the administrative law judge, or the applicable period of limitations has expired, the division does not have jurisdiction to accept the application. The division shall notify the parties regarding its lack of jurisdiction to hear the dispute.
Last, 8 CSR 50-2.030(2)(I) provides that "[t]he division shall lose jurisdiction to hear medical fee disputes relating to direct payments after the underlying workers' compensation case is dismissed or settlement is approved by the administrative law judge or legal advisor or an award is entered by the administrative law judge."
The Division rejected Cox's applications without a hearing or notice to Cox. As previously mentioned, one basis for rejection was that the underlying workers' compensation case was closed. The Division contends that the "deadlines" provided for in the rule, 8 CSR 50-2.030(1)(O) and (2)(I), serve as notice to health care providers that medical fee disputes will not be accepted by the Division after the underlying workers' compensation case is closed.
Cox asserts it is entitled to file and submit claims and medical fee dispute applications, and that they should be heard, determined and resolved in accordance with procedures set forth in section 287.140, regardless of the actions of the employee, because any such claim or dispute is solely between the health care provider and the employer and/or its insurer, and the employee is not a party to the dispute. The actions or conduct of the employee, a non-party to the medical fee dispute, should not affect the ability of the health care provider to pursue rights and claims afforded to it by statute, Cox contends. Cox asserts that when faced with the deprivation of property (accounts receivable), it did not receive notice and opportunity for hearing as due process requires. Thus, Cox asserts, the actions of the Division are contrary to law and unconstitutional, and the judgment of the trial court in granting the writ of mandamus was appropriate.
Pursuant to 8 CSR 50-2.030(1)(A), a health care provider must wait ninety days after the date of its first billing of the employer or insurer before filing a medical fee dispute application with the Division. During this ninety days, the underlying workers' compensation case between the employee and the employer and/or insurer may have settled, been dismissed, or otherwise been administratively closed. Under these circumstances, 8 CSR 50-2.030(1)(O) and 8 CSR 50-2.030(2)(I) provide that the Division loses jurisdiction to hear the medical fee dispute, leaving the health care provider with no recourse, due to circumstances beyond its control and with no notice or opportunity to be heard. We agree with Cox that 8 CSR 50-2.030(1)(O) and 8 CSR 50-2.030(2)(I) do *629 not fairly carry out the mandate of section 287.140, but instead arbitrarily and impermissibly cut off jurisdiction when the workers' compensation case is closed.
The test of whether an administrative agency rule is reasonable is whether the regulation bears "a rational relationship to a legitimate state interest." Psychiatric Healthcare Corp. of Mo. v. Dep't of Soc. Servs., 100 S.W.3d 891, 900 (Mo.App. W.D.2003) (citation omitted). "If so, it is neither arbitrary, capricious, nor unreasonable." Id.
The Division contends it has two legitimate interests that support its rule. First, the Division contends it has an interest in providing finality to injured employees, employers, and their insurers. The Division argues that those parties have a legitimate expectation that when they reach a settlement or when their cases are finally adjudicated by a Division ALJ, no third party can enter into the proceedings and attempt to have their liabilities adjusted. The Division contends that its rule provides a procedure that balances this interest in finality with the interest of health care providers in having their medical fee dispute applications heard. Second, the Division contends it has a legitimate interest in not imposing an administrative burden on itself, which the Division contends would occur if it were required to open a new file to consider a health care provider's medical fee dispute applications following the closing of the underlying workers' compensation case.
We find that neither of these interests justify the regulations providing that the Division loses jurisdiction over medical fee disputes when the workers' compensation case is closed. While the Division's interest in providing finality to injured employees, employers, and their insurers is legitimate, it may not advance this interest at the expense of the health care providers' right to have their day in court. Contrary to the Division's contention, a health care provider's filing of a medical fee dispute application after the underlying workers' compensation case is closed is not an attempt to have the parties' previously determined liabilities adjusted. Rather, it is an attempt by a health care provider to recover its fees from the employer or insurer. In fact, section 287.140.4 specifically provides that an employee is not a party to a medical fee dispute under that section, and that the employee's recovery may not in any way be jeopardized because of such a dispute.
We find that rather than striking a balance between the interest in finality and the health care providers' interests, as it claims to be doing, the Division has impermissibly foreclosed the health care providers' due process rights in the interest of ensuring finality. The Due Process Clause requires that "a person facing a deprivation of property receive notice and an opportunity for hearing appropriate to the nature of the case." Belton v. Bd. of Police Comm'rs of Kansas City, 708 S.W.2d 131, 137 (Mo. banc 1986). A health care provider does not receive notice or opportunity for hearing before the deprivation of property in this case.
Moreover, we find that the administrative "burden" the Division would incur by having to open a new file is minor compared to the effect of this statutory scheme on health care providers, whose property (accounts receivable) may be taken without benefit of legal process.
Conclusion
We hold that the Division has a statutory duty to permit the filing of the medical fee dispute applications at issue in this case under section 287.140.4. The Division may not reject the applications, without a *630 hearing, on the grounds that the statute of limitations has run or that the underlying workers' compensation case has settled, dismissed, or otherwise been administratively closed.
The judgment of the trial court is affirmed.
BRECKENRIDGE, P.J., and HOLLIGER, J., concur.
NOTES
[1] All statutory references are to RSMo 2000. The abbreviation "CSR" refers to the Code of State Regulations, and all references to regulations are to those in effect in 2000.
[2] It is not clear which specific exhibit each of the provided examples represents, and Exhibits A, B, and C have not been submitted in the record on appeal.
[3] Judy Engelbrecht, a Division employee, stated in her deposition that she was told to stop rejecting medical fee dispute applications on statute of limitations grounds. Why she was told to do this, and what the Division's current policy is regarding this matter, is not clear.
[4] This section provides as follows: "PURPOSE: This rule sets forth the Division of Workers' Compensation administrative procedures available to employers, insurance carriers and health care providers to resolve disputes concerning charges for services, in accordance with section 287.140, RSMo." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617677/ | 190 S.W.3d 496 (2006)
STATE of Missouri, Respondent,
v.
Gregory N. GRONDMAN, Appellant.
No. WD 64717.
Missouri Court of Appeals, Western District.
April 25, 2006.
Rosemary E. Percival, Kansas City, for Appellant.
Shaun J. Mackelprang, Jefferson City, for Appellee.
Before: SMART, P.J., ULRICH and HARDWICK, JJ.
LISA WHITE HARDWICK, Judge.
Gregory Grondman was convicted by jury on two counts of second-degree statutory sodomy and two counts of second-degree child molestation. On appeal, Mr. Grondman contends the trial court erred *497 in refusing to strike two venirepersons for cause. We reverse and remand.
After the voir dire examination, Mr. Grondman's attorney moved to strike venirepersons Parks and Rodeghier for cause, contending they could not be impartial if Mr. Grondman did not testify at trial. The motion was based on the following voir dire responses from venireperson Parks:
DEFENSE COUNSEL: . . . The defendant chooses not to take the stand and tell his side of the story. The question is would you hold it against him. . . .
MS. PARKS: I have trouble with the child having to defend her side of it and then letting somebody else defend him. That is where I stand. I don't know if I would give him the benefit of the doubt or not. I am sure he's told you and you believe him, but hearing it from his own mouth may make a difference in how I react to it.
PROSECUTOR: . . . We are looking for fair and impartial jurors. It is important to both sides. Would you be able to follow the instructions from this judge after listening to the facts if you were selected as a juror person and apply those facts to the law?
MS. PARKS: I could.
PROSECUTOR: Okay. Wait just a second. Do you also understand that the law and the instructions would indicate this defendant has a Constitutional right not to testify?
MS. PARKS: I understand.
PROSECUTOR: And you wouldn't hold it against him?
MS. PARKS: No. That being the law.
PROSECUTOR: That is the law. You would not hold that against him, yes or no.
MS. PARKS: No, I would not.
. . . .
DEFENSE COUNSEL: The fact that if the defendant chose not to take the stand, would that would you consider that as evidence he is guilty? . . . Would you be thinking back in the jury room, you know, I have waited, folks called, but know what, he didn't take the stand.
MS. PARKS: I don't think it would well no. Say no. I don't think it would sway my opinion. I think he should testify but I think I could base my opinion based on just what I heard from the lawyers without feeling like he had to.
DEFENSE COUNSEL: Earlier you were saying you had a problem with that?
MS. PARKS: I do have a problem with that. Because I have a problem with the authority of the father not speaking up. I mean the child is having to defend an action that she says happened against her and he's not giving any indication one way or the other for us to hear him say he did or he did not do it. We are letting someone else speak for him. And that is a problem to me. I don't think I would vote any different because of it but
DEFENSE COUNSEL: How about a close call? It is right there and you just don't know which way to go, would that would you take that as evidence of guilt?
MS. PARKS: I would lean to say he is guilty.
The motion was also based on the following responses from venireperson Rodeghier:
DEFENSE COUNSEL: Thank you. Mr. Rodeghier, I was asking you some questions. Did I see you nod your head?
MR. RODEGHIER: The only reason I nodded my head is because I felt as many of the other people felt. Somebody *498 has something to say you should say it. Otherwise you get the evidence as you get it. You have all the evidence and we deal with what we have. It is an indication it is another piece of the pie. That is all.
DEFENSE COUNSEL: Let me go back to the same question. You have a case and it is a close call, some point, you don't know which way to go. If he chose not to take the stand and you never heard him, never heard his side of it, would you consider that in reaching your personal verdict?
MR. RODEGHIER: Sure. I would have to consider the fact that he said nothing. Does that mean he's guilty? No. But that he didn't say anything, yes.
DEFENSE COUNSEL: I am not asking about guilt yet. I am asking would you consider the fact he didn't testify as evidence?
MR. RODEGHIER: I just got through stating I would have to take that into consideration.
DEFENSE COUNSEL: Along with all the other evidence?
MR. RODEGHIER: Of course, yes.
The court denied the motion to strike and both Mr. Rodeghier and Ms. Parks served on the jury. Mr. Rodeghier served as the foreperson.
Mr. Grondman did not testify at trial. Following his conviction on two counts of second-degree sodomy and second-degree child molestation, he was sentenced to a total of seven years' imprisonment.
In his sole point on appeal, Mr. Grondman contends the trial court erred in denying his motion to strike venirepersons Parks and Rodeghier for cause. He asserts both venirepersons indicated, during voir dire, that they could not be fair and impartial jurors if Mr. Grondman did not testify at trial. Because Ms. Parks and Mr. Rodeghier served on the jury and Mr. Grondman did not testify at trial, he argues his constitutional rights to due process, freedom from self-incrimination, and a fair and impartial jury were violated.
"[R]eview of a trial court ruling on a motion to strike for cause is limited to whether there was an abuse of discretion, that is, whether the ruling is clearly against the weight of the evidence and contrary to logic." State v. Ringo, 30 S.W.3d 811, 816 (Mo. banc 2000). "An appellate court will find reversible error [in the conduct of voir dire] only when an abuse of discretion is found and the defendant can demonstrate prejudice." State v. Oates, 12 S.W.3d 307, 311 (Mo. banc 2000).
The critical question on a challenge for cause is whether the venireperson unequivocally indicated an ability to evaluate the evidence fairly and impartially. State v. Clark-Ramsey, 88 S.W.3d 484, 488 (Mo.App.2002). The qualifications of a prospective juror must be determined on the basis of the entire examination and not just a single response. Id. at 486. If the voir dire responses suggest a possibility of bias, but upon further examination that venireperson gives unequivocal assurances of impartiality, the mere possibility of prejudice will not disqualify such rehabilitated juror. Id. at 489. However, when the examination leaves uncertainty about the venireperson's ability to be fair and impartial, the trial court has a duty to make an independent inquiry regarding fitness for jury service. Id. at 488-89. In such cases, the absence of an independent examination by the trial judge justifies a more searching review by this court of the challenged juror's qualifications. Id. at 489.
The record reveals that venireperson Parks initially stated she had a problem with the victim having to testify while *499 the defendant could remain silent. She was rehabilitated by the Prosecutor's questions about her ability to follow the law, but defense counsel subsequently re-established that Ms. Parks had lingering concerns about a defendant who did not speak up for himself. Ultimately, Ms. Parks admitted that she would "lean" toward finding the defendant guilty in a close case if he did not testify. Despite this clear indication of bias against Mr. Grondman's due process rights, the trial court did not conduct an independent inquiry of Ms. Parks' fitness for jury service.
Similarly, venireperson Rodeghier expressed his concern during voir dire that if the "[defendant] has something to say [he] should say it." He stated that he "would have to consider the fact the defendant said nothing," but that would not necessarily mean the defendant is guilty. Had the voir dire ended there, it would be a closer question as to whether Mr. Rodeghier was rehabilitated as a fair and impartial potential juror. However, after further questioning by defense counsel, Mr. Rodeghier confirmed that, in a "close call," he would consider the defendant's failure to testify along with the other evidence in the case. This equivocation required additional inquiry to clarify whether Mr. Rodeghier would follow the law to protect the defendant's right against self-incrimination. Because the trial court did not conduct such inquiry, the record does not establish that Mr. Rodeghier was qualified to serve on the jury.
The trial court abused its discretion in refusing to strike venirepersons Parks and Rodeghier for cause. Neither of the prospective jurors was rehabilitated after indicating that they would consider the defendant's failure to testify as evidence of his guilt. Based on their voir dire responses, Ms. Parks and Mr. Rodeghier were not qualified as fair and impartial jurors. Accordingly, Mr. Grondman was prejudiced by their participation on his jury panel. The judgment of conviction is reversed, and the cause remanded for a new trial.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617652/ | 38 So. 3d 226 (2010)
Lila GONZALEZ and Francis Yamil Garcia, Appellants,
v.
STATE of Florida, Appellee.
No. 2D09-844.
District Court of Appeal of Florida, Second District.
June 23, 2010.
*227 Kenneth S. Siegel, Tampa, for Appellants.
Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
KHOUZAM, Judge.
Lila Gonzalez and Francis Yamil Garcia pleaded no contest to several drug-related offenses, reserving the right to appeal the denial of their dispositive motions to suppress. We affirm the trial court's denial of the motions to suppress as to the cocaine found on Gonzalez during a traffic stop. We reverse the denial of the motions to suppress as to the evidence obtained from the residence of Gonzalez and Garcia pursuant to a search warrant.
Gonzalez and Garcia were each charged with manufacture of cannabis, possession of cannabis, and possession of drug paraphernalia as a result of evidence seized during the search of their home. Gonzalez was also charged with possession of cocaine as a result of evidence obtained during the traffic stop. They filed identical motions to suppress, arguing that the traffic stop of Gonzalez was illegal and that the affidavit for the search warrant was insufficient to establish probable cause. The trial court concluded that the traffic stop was valid. We agree and affirm Gonzalez's judgment and sentence for possession of cocaine without further comment. The trial court found that the affidavit for the search warrant lacked probable cause but determined that the evidence seized during the execution of the warrant was nevertheless admissible under the good faith exception established in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). We disagree and find that the good faith exception is inapplicable in this case.
The affidavit stated that there was probable cause to believe that Gonzalez and "others known and unknown" had been committing "offenses involving the transportation, delivery, and possession of . . . cocaine." The affidavit provided in pertinent part:
5. Beginning in October of 2006, an unidentified citizen began writing emails to the City of Tampa message service center concerning narcotics activity at *228 two local bar/strip clubs. Specifically, "Club Wild" on West Hillsborough Avenue and "Club Envy" on West Kennedy Boulevard. During his emails, he described three subjects who were actively involved. Your affiants began surveillance on one of them and was able to make an arrest and secure a guilty plea. All of the information provided by the citizen proved to be accurate. The messages stopped coming in for awhile, but in March of 2007, he began sending emails again. This time, he specifically named Lila Gonzalez, provided her vehicle descriptions, tag number and phone number in the messages. He also provided information on her new employment. The citizen specifically stated that Lila Gonzalez and her boyfriend, Francis Yamil Garcia[,] were growing marijuana plants in their home and selling cocaine from the residence.
6. TECO records show that electric service at 1323 Grace Street West, was activated by Lila Gonzalez DOB 08/03/81, and Francis Yamil Garcia DOB 02/07/76.
7. The Hillsborough County Property Appraiser's records show the owner(s) of the house at 1323 Grace Street West, to be Lila Gonzalez and Francis Yamil Garcia.
8. On July 10th, 2007[,] your affiants established surveillance on the house at 1323 Grace Street West at approximately 4:00 [p.m.] We observed the silver Lincoln Navigator bearing Florida tag H16AQR registered to Lila Gonzalez, parked in the drive. At approximately 6:10 [p.m.] Lila Gonzalez exited the front door of the house and entered the driver's seat of the Lincoln Navigator. She proceeded west on Cypress Street along with our surveillance detail. After she crossed Lois Avenue, she committed a moving violation in front of your affiants, to wit; she moved abruptly from the outside-most lane, with no warning or signal, directly into our path, causing Officer Bryant to take an evasive action. She then accelerated and made two more lane changes in traffic without any signal or warning. A traffic stop was initiated. Officer Harrell approached Lila Gonzalez and positively identified her and obtained her driver['s] license. Officer Harrell explained to Lila Gonzalez why the stop was made. She apologized and stated she was trying to get to work. Officer Harrell asked Lila Gonzalez if she had anything illegal in her truck. She replied that she did. Officer Harrell asked Lila Gonzalez if she would grant permission for an officer to move her vehicle out of the roadway to alleviate the rush hour back up. She granted permission and exited her vehicle. Lila Gonzalez then stated to Officer Harrell that she had powder cocaine in her bra and asked what he wanted her to do. Officer Harrell read [Miranda] warnings to Lila Gonzalez and asked her if she would get it out. Lila Gonzalez removed the cocaine and handed it to Officer Harrell. Officer Harrell released the cocaine to Officer Marvin Turner who performed a chemical reagent field test for cocaine on the substance. The test showed positive. Officer Turner weighed the cocaine at 1.0 grams. Officer Harrell asked Lila Gonzalez if there was more cocaine at her residence to which she responded that she wanted a lawyer because she "could see where this was going." Lila Gonzalez was kept under constant surveillance after leaving her residence. A surveillance team was sent back to the house at 1323 Grace Street West to keep it under surveillance pending the granting of a Search Warrant.
A search of the residence was performed pursuant to the warrant. Officers found *229 nine marijuana plants, marijuana, a digital scale, a wooden grinder, guns, ammunition, a blower, a generator/power converter, a lamp, and fluorescent fixtures. No cocaine was seized as a result of the search.
A hearing was held on the motions to suppress. Officer Harrell testified that the Tampa Police Department had received a series of anonymous tips regarding forty individuals. He stated that the tips were accurate and had led to the arrest of one individual. The tipster claimed that Gonzalez and Garcia were growing marijuana plants in their house and were selling cocaine from their house. Officer Harrell verified the tipster's information about Gonzalez's place of employment, the vehicle that she drove, the vehicle that Garcia drove, and their home address. Officer Bryant also verified that Gonzalez and Garcia took a planned trip to Las Vegas. The officers, however, did not perform any trash pulls, set up any controlled buys, or speak to the couple's neighbors about whether there were people coming and going from the residence. The couple's power bill did not show a higher than normal use of electricity. Although the officers drove by the residence to document the vehicles that were there, they did not conduct any surveillance prior to July 10, 2007. Furthermore, the officers did not find any contraband in Gonzalez's vehicle during the July 10 traffic stop. Officer Harrell admitted that he would not assume that a person in possession of one gram of cocaine was dealing in cocaine.
To determine whether probable cause exists to justify the issuance of a search warrant, the issuing magistrate must determine whether, based on the totality of the circumstances, the information contained within the affidavit establishes a reasonable probability that contraband will be found at a particular place and time. Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). The reviewing court must ensure that the magistrate had a substantial basis for concluding that probable cause existed, and this determination must be made by examining the four corners of the affidavit. Id. If the affidavit fails to establish probable cause, the evidence seized pursuant to the warrant will nevertheless be admitted under the good faith exception "when a police officer has acted in an objectively reasonable manner, in objective good faith, and as a reasonably well-trained officer would act in seeking the warrant from a detached and neutral magistrate and thus has reasonably relied upon the warrant in executing a search within the warrant's terms and scope." Pilieci v. State, 991 So. 2d 883, 896 (Fla. 2d DCA 2008). The good faith exception is inapplicable, however, "if the officer has acted dishonestly, recklessly, or under circumstances in which an objectively reasonable officer would have known the affidavit or the existing circumstances were insufficient to establish probable cause for the search." Id.
Here, the affidavit contained a tip from March 2007 that Gonzalez and Garcia were allegedly growing marijuana and selling cocaine. By the time the search warrant issued, this information was more than three months stale. See Smith v. State, 438 So. 2d 896, 897-98 (Fla. 2d DCA 1983) (noting that as the length of time between the observation of the events establishing probable cause and the date of issuance of the warrant increases, "there is less likelihood that the items sought to be seized will be found on the premises"). The affidavit contained no allegations that anyone actually saw contraband in the couple's residence and there were no facts from which the magistrate could conclude that contraband was and would still be located in the residence at the time the warrant *230 issued. See Rand v. State, 484 So. 2d 1367, 1367 (Fla. 2d DCA 1986) (finding affidavit insufficient for failing to allege the specific time or times when contraband was observed on the premises). The officers acknowledged that they did not conduct any investigations to corroborate the tipster's accusations of illegal drug activity. The only corroboration that was done pertained to readily ascertainable details such as Gonzalez's place of employment and the type of vehicle that she drove. During the brief period of surveillance on July 10, the officers did not observe any unusual activity at the residence. Moreover, Gonzalez's possession of one gram of cocaine on her person did not suggest a fair probability that she was selling cocaine from her house. See State v. Rabb, 920 So. 2d 1175, 1187-88 (Fla. 4th DCA 2006) (finding that the possession of books and a video about cannabis cultivation and a small amount of marijuana "simply does not suggest a fair probability of any broader criminal activity, such as the growing of marijuana" in the defendant's house).
Therefore, we find that the facts as alleged in the affidavit failed to demonstrate a reasonable probability that contraband would be found in the residence at the time the warrant issued. Because an objectively reasonable officer would have known that the affidavit was insufficient to establish probable cause for the search, the good faith exception does not apply. See Garcia v. State, 872 So. 2d 326, 330 (Fla. 2d DCA 2004) (holding that good faith exception did not apply where affidavit failed to establish a nexus between the objects of the search and the residence to be searched).
Accordingly, we reverse the denial of the motions to suppress the evidence obtained as a result of the search warrant, and remand with instructions that the trial court vacate Gonzalez's and Garcia's judgments and sentences for manufacture of cannabis, possession of cannabis, and possession of drug paraphernalia. We affirm Gonzalez's judgment and sentence for possession of cocaine.
Affirmed in part, reversed in part, and remanded for further proceedings.
ALTENBERND and LaROSE, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920141/ | 91 B.R. 448 (1988)
In re Linda Ruth ZELNAR, Debtor.
Bankruptcy No. 588-864.
United States Bankruptcy Court, N.D. Ohio.
October 18, 1988.
Jerome Holub, Akron, Ohio, Trustee.
Marc Gertz, Akron, Ohio for debtor.
Robert Gippin, Akron, Ohio for Cornwell Quality Tool.
FINDING AS TO CONFIRMATION OF PLAN
HAROLD F. WHITE, Bankruptcy Judge.
On May 19, 1988 Linda Ruth Zelnar filed for relief under the provisions of chapter 13 of the Bankruptcy Code. In her petition the debtor listed only three creditors: National City Bank, a secured creditor owed approximately $8,000 on a 1987 Mazda 323 motor vehicle; Bank One of Akron, an unsecured creditor owed the sum of $1,000 on a Visa card; and Cornwell Quality Tools Co., a judgment creditor in the amount of $82,113.91.
The debtor's Amended Plan as filed on July 7, 1988 provides that National City Bank, the secured creditor, would be paid in full inside the plan and the two unsecured creditors would be paid three percent of their claims over a period of three years. The debtor indicates that she would pay into the plan the sum of $163 semi-monthly out of her current income.
*449 Cornwell Quality Tools Co. (hereinafter referred to as "Cornwell") filed an objection to the confirmation of the proposed chapter 13 plan indicating that the plan was not filed in good faith and was filed only for the purpose of discharging what would be a nondischargeable debt under the provisions of chapter 7 of the Bankruptcy Code.
A hearing was held before the court at which the debtor was represented by counsel, Marc Gertz, and attorney Patrick J. Keating appeared on behalf of the objector, Cornwell. There is little dispute as to the facts in this case. Based upon the evidence and testimony presented at the hearing, the court makes the following Finding of Facts and Conclusions of Law.
FINDING OF FACTS
1. The debtor is a divorced woman who has been employed as an administrative assistant with Comsol Corporation for a period of approximately one-and-a-half years. Her monthly take-home pay is approximately $1,350. Her monthly expenditures amount to approximately $1,249 which include a car payment to National City Bank in the amount of $212. Although the debtor does not have personal custody of her eleven-year old twins, they live with her and she does not receive support from her former husband.
2. The debtor admits she embezzled the sum of $57,000 from Akron Novelty Co. She indicates that she was arrested for said embezzlement, see Finding No. 4, and was placed in the Summit County, Ohio Pre-Trial Diversion Program (hereinafter referred to as "Program") following arraignment. One of the conditions of the Program was that the debtor had to make restitution of the $57,000.
3. After leaving Akron Novelty Co., the debtor was employed by Cornwell from April to October, 1984 and as an employee of Cornwell she was able to embezzle $105,381.15. Of the embezzled money, the debtor used $57,000 to make restitution through the Program to her former employer, Akron Novelty Co.
4. The debtor was indicted by the Summit County, Ohio Grand Jury on or about July 24, 1984 for grand theft (embezzlement) and for forgery as to the $57,000 taken from Akron Novelty Co. After a guilty plea in Case No. CR 84-5-560 in the Court of Common Pleas, Summit County, Ohio, the debtor was sentenced on December 31, 1984 by the Hon. Glen B. Morgan to be incarcerated at the Ohio State Reformatory for Women at Marysville, Ohio for a definite sentence of one year for each crime to be served consecutively.
5. As to the embezzlement from Cornwell, a Bill of Information was issued in the Court of Common Pleas, Medina County, Ohio against the debtor. She was sentenced on January 9, 1985, Case No. 8078, Court of Common Pleas, Medina County, Ohio, by the Hon. Neil W. Whitfield to serve a definite period of two years imprisonment at the Marysville Reformatory, Marysville, Ohio with said sentence to run concurrent with the unserved portion of the sentence imposed in Summit County, Ohio, Case No. CR 84-5-560.
6. At the hearing on the objection to confirmation held before this court, the debtor stated that she served "flat time", being a period of nineteen months. She was then released and obtained her present employment.
7. At the present time, Cornwell claims that it is still owed $98,046.74 as evidenced by a proof of claim filed on July 1, 1988. No exceptions have been taken by the debtor to Cornwell's proof of claim which is premised on a Judgment Entry dated March 28, 1985 in Case No. CV 84-10-3145, Court of Common Pleas, Summit County, Ohio.
8. The court finds that the debtor appears to have an above average intelligence, having graduated from high school and having attended Malone College and the University of Akron for approximately three years, although she did not receive a degree.
9. The debtor was divorced in Case No. DR XX-XX-XXXX, Domestic Relations Court, Summit County, Ohio from her husband who was awarded personal custody of the *450 children. Although the order has not been changed, the children live with the debtor without financial support from their father.
10. Pursuant to Fed.R.Evid. 201(c), the court takes judicial notice of the record in Case No. DR XX-XX-XXXX, Domestic Relations Court, Summit County, Ohio, Ronald L. Zelnar vs. Linda Ruth Zelnar.
11. The debtor admits that the purpose of filing the chapter 13 proceeding was to avoid collection proceedings by Cornwell. The debtor never offered or attempted to repay Cornwell prior to filing the chapter 13 petition.
12. While the plan applies nearly all of the debtor's projected disposable income to make payments, Cornwell will have received less than three percent of its claim when the plan is completed.
ISSUE
Is the plan proposed by the debtor confirmable under 11 U.S.C. § 1325(a)(3)?
CONCLUSIONS OF LAW
Section 1325(a) and (b) of Title 11 sets forth the standards that must be met before a plan can be confirmed. One of these requirements is that: "the plan has been proposed in good faith and not by any means forbidden by law". 11 U.S.C. § 1325(a)(3).
It is the consensus of the creditor that the debtor's plan has not been proposed in good faith and therefore should not be confirmed. This court agrees.
This decision is based upon a definition of "good faith" pursuant to the "totality of the circumstances" test. In re Okoreeh-Baah, 836 F.2d 1030 (6th Cir.1988); Memphis Bank & Trust Co. v. Whitman, 692 F.2d 427 (6th Cir.1982).
Good faith is an amorphous notion, largely defined by factual inquiry. In a good faith analysis, the infinite variety of factors facing any particular debtor must be weighed carefully . . . The bankruptcy court must ultimately determine whether the debtor's plan, given his or her individual circumstances, satisfies the purposes undergirding Chapter 13: a sincerely-intended repayment of pre-petition debt consistent with the debtor's available resources.
In re Okoreeh-Baah, 836 F.2d at 1033.
The purpose of chapter proceedings under the Bankruptcy Code is to relieve an honest debtor from oppressive debt and to afford an opportunity for a fresh start. Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S. Ct. 695, 699, 78 L. Ed. 1230 (1933). In the present case, the debtor has only three creditors, one of which is secured and will be fully paid inside the plan and two of which are unsecured and will be paid three percent pursuant to the plan. One of the unsecured debts is a credit card for which a proof of claim in the amount of $2,600.11 has been filed. Further, said proof of claim indicates that the debt is in the name of Ronald L./Linda R. Zelnar. Pursuant to the Judgment Entry of Divorce, the debtor is only liable for credit purchases made subsequent to November 13, 1984, the date of the debtor's former husband's filing for divorce. It is unknown whether the $1,000 credit card debt listed by the debtor, for which a proof of claim was filed in the amount of $2,600.11, is hers or her ex-husband's. What debt remains and approximates ninety-nine percent of the debtor's unsecured indebtedness is that owed to Cornwell.
The debt was incurred not by one but by two embezzlements. The debtor in the first embezzlement was granted probation and an opportunity to make restitution. However, as stated before, she then deliberately committed a second embezzlement against Cornwell for almost twice the amount of the first embezzlement. See Finding of Facts Nos. 2 and 4. The debtor has now served her "flat time" as directed by the Courts of Common Pleas of Summit and Medina Counties. This court cannot condone the actions of this debtor by confirming a chapter 13 plan of arrangement which would allow her to profit from these two embezzlements. See In re Troyer, 24 B.R. 727 (Bankr.N.D.Ohio 1982). This bankruptcy court is, after all, a court of equity. As such, the court is "vested with a great deal of discretion in its control over *451 the process of formulation and approval of reorganization plans." In re Brock, 47 B.R. 167, 169 (Bankr.S.D.Calif.1985).
The debtor proposes to pay $326 per month into a thirty-six month plan whereby $212 of that monthly sum will pay the secured creditor on its claim for the debtor's 1987 Mazda automobile. Therefore, only $114 per month for thirty-six months is to go to the unsecured creditors realizing a payment of three percent. Although the debtor, in her Memorandum in Support of Confirmation, argues that her chapter 13 plan is a "sincerely-intended repayment of pre-petition debt consistant [sic] with" her "available resources", the court is fully aware that the purpose in filing for relief under chapter 13 was for the debtor to gain the broad discharge which would most likely be unavailable to her under chapter 7. 11 U.S.C. § 523(a)(4) and (6). To gain the broad discharge of chapter 13, the debtor must however propose a plan "with an intention that is consistent with the purpose of the Chapter, to pay creditors, and that intention must be consummated adequately enough to merit the more generous relief available in this Chapter." In re Cook, 3 B.R. 480, 485 (Bankr.S.D.W.Va. 1980).
The court is of the opinion that a three percent payment is a mere pittance, practically nothing, and that the debtor's plan is an attempt to avoid paying the debt rather than to rehabilitate. Because the plan fails to satisfy the good faith requirement of section 1325(a)(3), confirmation must be denied.
A separate Order in accordance with this Finding shall be entered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617709/ | 623 So. 2d 369 (1992)
Antonio Tevereus SMITH
v.
STATE.
CR-91-379.
Court of Criminal Appeals of Alabama.
September 30, 1992.
Rehearing Denied November 13, 1992.
Certiorari Quashed June 25, 1993.
*370 James C. McInturff, Birmingham, for appellant.
James H. Evans, Atty. Gen., and David Bjurberg, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 1920354.
TAYLOR, Judge.
The appellant, Antonio Tevereus Smith,[1] was convicted of murder, attempted murder, shooting into an occupied dwelling and receiving stolen property in the third degree. He was sentenced to respective terms of 25 years, 20 years, 3 years, and 3 years. The 25-year and the 20-year terms were to run concurrently, and the 3-year terms were to run consecutively.
As regards "time standards", this case exemplifies a dilemma which is encountered by appellate courts. Although the notice of appeal was filed on November 22, 1991, the completed record was not filed until May 15, 1992. The last brief was filed August 7, 1992, and to comply with the American Bar Association time standard of 280 days from notice of appeal to opinion, this opinion should have been released by August 24, 1992. The earliest date we could release this case after submission was September 30, 1992, beyond the date to meet the time standards.
The events that are the subject of this case and appeal occurred between 12:00 a.m. and 1:00 a.m. on the morning of August 22, 1990. The state's evidence tended to show that sometime during the evening of August 21, Ernestine Mason's car, a 1980 green four-door Buick Century, was stolen.
Prior to midnight on the evening of August 21, 1990, several people had gathered on the front porch of Bobby Crim's house on North 20th Street in Birmingham. Traci Miller had dozed off and was awakened around midnight by a loud explosion. She looked down and saw that she and Eric Goree, the victim, were both covered with blood and glass. Miller had been hit by shotgun pellets in the right arm, left hand, and rib cage. Goree had been hit by pellets all over his body. Both Miller and Goree were taken to a local hospital, where Goree later died as a result of his wounds. Miller was treated and released.
Crim testified that between 12:30 a.m. and 12:50 a.m. he saw a green four-door car pull up in front of his house and stop. He saw a *371 shotgun pointed out of the rear passenger side window and another gun appeared from the front passenger side window. Both weapons were fired in the direction of his house.
Shortly after the shooting, police were called and a description of the car was broadcast over the police radio. Officers Jerome Green and Frederick Alexander, of the Birmingham Police Department, attempted to stop a car occupied by three black males and matching the description of the car broadcast over the radio as he was proceeding to the scene of the shooting. He saw the car make an illegal lane change, and he pulled behind the car and turned on his flashing lights. The car sped away. Green gave chase for several blocks until it stopped in an alley. Three people jumped from the car and started running from the scene. The appellant was apprehended about 10 blocks from the scene of the shooting by Officer Danny Wynn of the Birmingham Police Department, who was also on the lookout for the suspects. Officer Green found a sawed-off shotgun and a .22 caliber rifle beside the abandoned car which was found to be the car that had been stolen earlier. A fingerprint of the appellant's was also found on the stolen car.
Doris Chilles testified that between 12:30 a.m. and 1:00 a.m. on the morning of August 22, 1990, she was awakened by a loud blast. She discovered that several shots had been fired into her house, where she and her two sons, Ed and James Harris, had been sleeping. Chilles stated that pellets were all over the house.
Demetrius Sanders and David Starks were with the appellant on the night of the shooting. Demetrius Sanders testified that the appellant and Starks picked him up at his girlfriend's house in a green four-door car. They proceeded to Sanders house, where he obtained a .20 gauge shotgun and .22 caliber rifle. The shotgun belonged to the appellant, but he kept it at Sander's house. The three were riding around, with Sanders driving, when they drove to the Druid Hills area and saw several people gathered on the porch of one of the houses. Sanders thought that one of the men on the porch was an individual with whom he had earlier that day, in the appellant's presence, had an altercation. Sanders passed the house, turned around, and stopped in front of Crim's house. The appellant fired his shotgun once from the rear passenger window, and Starks fired his rifle about four times from the front passenger side. They sped away and were heading towards Sanders's house when they spotted Ed Harris's house. Both Starks and the appellant fired into Ed Harris's house. Shortly thereafter the car was spotted by police, and the appellant was apprehended.
The appellant testified in his own behalf at trial and stated that he and Starks found the stolen Buick automobile at Evergreen Bottom, in Birmingham. He knew that the car was stolen. They both drove over to get Sanders and proceeded to drive around. Smith stated that he fired the gun into a house next to Starks's that he thought was vacant. After this they drove around the Druid Hills area where they stopped in front of Crim's house. He fired his shotgun once at Crim's house and Starks also fired his rifle. Smith testified that he did not intend to kill anyone.
I
The appellant contends that the trial court should not have allowed his statement to be received into evidence because the police did not comply with Rule 11(A), A.R.Juv.P.
According to Rule 11(A), A.R.Juv.P. a child who is taken into custody must not only be informed of his Miranda,[2] rights but he must also be informed that he has the right to communicate with his parents or guardian and that "if necessary, reasonable means will be provided for him to do so."
The evidence at the suppression hearing showed that the appellant was arrested and was brought to the police station at approximately 2:00 a.m. Officer Frederick Alexander, of the Birmingham Police Department, who read the appellant his juvenile rights stated that after he read those rights he asked the appellant if there was anyone he *372 wished to speak to. The appellant told Alexander that he would like to talk with his grandmother. Alexander, when pressed on cross-examination, stated that before calling the appellant's grandmother he did ask the appellant about the stolen car. Consequently, after the appellant expressed his desire to talk with his grandmother, the police continued to question him about the incident. Several hours later, the appellant was again questioned. Initially, we were concerned about this second questioning of the appellant. However, upon further examination of the record, we conclude that the first questioning violated the appellant's rights.
All extra-judicial statements are deemed involuntary. Mitchell v. State, 508 So. 2d 1196 (Ala.Cr.App.1986). Before an accused's confession can be received into evidence, the state must show that the statement was made voluntarily and that the suspect was read and that he understood his Miranda rights. Whitlow v. State, 509 So. 2d 252 (Ala.Cr.App.1987); Malone v. State, 452 So. 2d 1386 (Ala.Cr.App.1984). Here, because the individual was a juvenile, an additional step must be followed. The state must also show that the juvenile was told that he had the right to communicate with his parent or guardian. Rule 11(A), A.R.Juv.P.
The appellant was questioned after he exercised his right and requested to speak to his grandmother before answering questions, a right that this court has recently determined to be the equivalent of an adult's requesting to speak to his attorney. E.C. v. State, 623 So. 2d 364 (Ala.Cr.App.1992). This right was violated by the authorities when they continued to question the juvenile. The statement made to the police was therefore due to be suppressed. While a juvenile may waive the right to talk to a parent or guardian, W.T.K. v. State, 598 So. 2d 33 (Ala.Cr. App.1992), there is no indication that the appellant made such a waiver in this case.
In some limited instances, receipt into evidence of an illegally obtained confession may be considered harmless error. The United States Supreme Court has applied the harmless error doctrine to confessions obtained in violation of Miranda and to coerced confessions. Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991); Milton v. Wainwright, 407 U.S. 371, 92 S. Ct. 2174, 33 L. Ed. 2d 1 (1972). Receipt of an illegally obtained confession is harmless if the court can find, based on the circumstances of the case, that admittance of the confession was harmless "beyond a reasonable doubt." Fulminante; Milton. This harmless error doctrine was defined in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). The United States Supreme Court stated:
"In fashioning a harmless-constitutional-error rule, we must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one. ....
"... We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. State of Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 [(1965)]. There we said: `The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.' Id., at 86-87, 84 S.Ct. at 230.... Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment. There is little, if any, difference between our statement in Fahy v. State of Connecticut about `whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction' and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy, case *373 when we hold, as we now do, that before a federal constitutional error can be held harmless the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard...."
Chapman, 386 U.S. at 23-24, 87 S.Ct. at 827-28. (Footnotes omitted, emphasis added.)
In order for the harmless error doctrine to be applied in this situation, the evidence against the accused must be overwhelming. In Milton, a statement made by the defendant without the benefit of Miranda was received into evidence. The Supreme Court held that the admission of the statement was harmless because "its admission was harmless beyond a reasonable doubt." Milton, 407 U.S. at 372, 92 S.Ct. at 2175. In Milton, the confession that should have been suppressed was made before the defendant he was indicted; however, three legally obtained statements were made after he was indicted. The victim in Milton was killed while a passenger in Milton's car. The victim died by drowning when the car Milton was driving went into a river. The rear windows and doors were locked by the driver's control, preventing them from being opened by passengers. Milton jumped from the car, leaving the victim unable to exit the vehicle. The evidence in Milton unequivocally connected the appellant with the murder.
In this case, the only evidence connecting the appellant to the crime was a fingerprint on the car and his co-defendant's testimony. The fingerprint did not directly connect the appellant to the shooting and the co-defendant was an individual who had a personal interest. We have no other eyewitness testimony here and very little direct evidence.
We will not say that the error was harmless beyond a reasonable doubt.
II
The appellant asserts that the trial court erred in failing to grant his application for treatment under the Youthful Offender Act. The appellant maintains that the circuit court denied the application without any investigation. However, this assertion is not supported by the evidence.
"`When deciding whether to grant youthful offender status, it is expected that the nature of the crime charged, along with prior convictions of the defendant, will be considered, as well as any other matters deemed relevant by the court. No prescribed format is required. Neither is the trial court required to articulate on the record the reasons for denying youthful offender status to a defendant.'"
Self v. State, 512 So. 2d 811, 814 (Ala.Cr.App. 1987), quoting from Goolsby v. State, 492 So. 2d 635, 636 (Ala.Cr.App.1986).
Whether to grant or deny youthful offender status is a matter left to the "absolute" discretion of the circuit court. Self; Goolsby; Morgan v. State, 363 So. 2d 1013 (Ala.Cr.App. 1978). We hold that the trial court's decision to deny youthful offender treatment was not arbitrary and there was no abuse of the court's discretion in denying appellant's application for youthful offender treatment.
III
The appellant next contends that the trial court erred in consolidating the charges against him. He maintains that he was unduly prejudiced and was denied a fair trial by the circuit court's granting the state's motion to consolidate the four charges against him.
Consolidation of offenses for trial is specifically provided for by Rule 13.3(c), A.R.Crim.P. This Rule states:
"If offenses or defendants are charged in separate indictments, informations, or complaints, the court on its own initiative or on motion of either party may order that the charges be tried together or that the defendants be joined for the purposes of trial if the offenses or the defendants, as the case may be, could have been joined in a single indictment, information, or complaint. However, the court shall not order that the offenses or the defendants, as the case may be, be tried together without first providing the defendant or defendants *374 and the prosecutor an opportunity to be heard."
(Emphasis added.)
The record in this case reflects that a hearing was held on the state's motion to consolidate the charges. Thus, we need only determine whether the offenses 1) were of the same or similar character, or 2) involved the same conduct or were otherwise connected in their commission, or 3) were alleged to be part of a common scheme or plan. Rule 13.3(a), A.R.Crim.P., and Yelder v. State, [Ms. 3 Div. 212, October 11, 1991], 1991 WL 238088, *2 (Ala.Cr.App.1991), reversed on other grounds, [Ms. 1910345, August 14, 1992], 1992 WL 192836 (Ala.1992). "Perhaps the most important consideration is the answer to the following question: If the offense were tried separately, would evidence of each offense be admissible in the trial for the other offense?" Yelder, 1991 WL 238088, *2.
Here, the offenses all occurred within a relatively short time. Evidence of each offense would have been admissible in any of the four proceedings as part of the res gestae or as part of a common scheme or plan. Inmon v. State, 585 So. 2d 261 (Ala.Cr.App. 1991).
Further, as this court stated in Cowart v. State, 488 So. 2d 497 (Ala.Cr.App.1985):
"For this court to rule that a trial judge abused his discretion in this matter, an appellant has a heavy burden of establishing that he was unable to obtain a fair trial without a severance and that he suffered compelling prejudice which the trial court could not prevent"
488 So.2d at 501. (Emphasis added.)
The appellant has failed to show that he has suffered any "compelling prejudice" as a result of the consolidation of the four charges against him. The trial court did not abuse its discretion in granting the motion to consolidate. Ex parte Hinton, 548 So. 2d 562 (Ala.), cert. denied, 493 U.S. 969, 110 S. Ct. 419, 107 L. Ed. 2d 383 (1989).
IV
The appellant next argues that the trial court erred in not granting his motion for an independent court-appointed psychologist to evaluate his competency to stand trial.
Section 15-16-21, Code of Alabama 1975, states:
"If any person charged with any felony is held in confinement under indictment and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity...."
(Emphasis added.)
Initially, whether reasonable grounds exist to doubt a defendant's sanity is a question left to the discretion of the trial court. "The trial court is, thus, the `screening agent' for mental examination requests." Reese v. State, 549 So. 2d 148, 150 (Ala.Cr.App.1989). Rule 11.3(a), A.R.Crim.P. states: "If the circuit court determines that reasonable grounds for an examination exist, it shall appoint a psychiatrist or psychologist to examine the defendant...."
Before ruling on the motion, the circuit court stated that Judge Ross of the family court had found no evidence of retardation or mental illness. A letter from Dr. Blotcky of the family court indicated that he agreed with Judge Ross's determination. Dr. Rosencrans, a psychologist, had also talked with the appellant and did not find evidence of mental retardation. The trial court committed no error in denying the appellant's motion for an independent evaluation of his competency.
V
The appellant next argues that the trial court erred in not granting him a continuance because one of the defense witnesses failed to appear at trial. Defense counsel stated at the end of his case that one of the individuals who was present when the shooting at Crim's house occurred failed to testify. The trial court said that the defense would have until the next day at 9:00 a.m. to produce that witness. The witness could not be located, and defense counsel asked for another continuance. The circuit court denied the motion. Defense counsel stated that he would find the witness sooner or later, but he *375 could give no indication of how long it would take to locate this witness, who had twice been subpoenaed to appear. Further, there was absolutely no showing as to the content of the missing witness's testimony.
The appellant has failed to show that he was prejudiced as a result of the denial of the motion for continuance. The denial of a motion for continuance will not be reversed unless the court has abused its discretion. Daniels v. State, 621 So. 2d 335 (Ala.Cr.App. 1992); Canada v. State, 421 So. 2d 140 (Ala. Cr.App.1982). The judicial system has a fundamental duty to protect its own functioning. We must balance the right of a defendant to obtain a fair trial with the right of the general public to have its business dispatched efficiently. Here, because the witness had been subpoenaed and defense counsel made absolutely no showing of what the testimony of the missing witness would be, we cannot say that the trial court abused its discretion in denying appellant's request for a continuance.
VI
The appellant next argues that the trial court erred in denying his motion for independent testing of the shotgun at the state's expense, which would allegedly establish that the shotgun blast could not have killed Goree because of the 36-foot distance between the car and the house.
As the state correctly argues, the only time that a defendant has a right to have physical evidence independently examined is when it is critical to his defense and subject to varying expert opinion. Ex parte Grayson, 479 So. 2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S. Ct. 189, 88 L. Ed. 2d 157 (1985).
Here, the appellant admitted on the stand that he fired the gun. Any evidence concerning the distance at which a shotgun blast would be lethal was not critical to the appellant's defense. The fact that a shotgun blast from 36 feet can be lethal is a matter within common knowledge and not an appropriate subject for expert testimony. The movant did not offer to participate in the testing. The trial court committed no error in denying the appellant's motion for independent testing of the shotgun at the state's expense.
VII
The appellant next argues that there was no probable cause to arrest him on the night of the shooting. The evidence at the suppression hearing showed that on the night of the shooting a description of the car involved in the shooting was broadcast over the police radio. Officer Alexander, who was on his way to the scene of the shooting, saw a car matching the description. He started to follow it and reported the license plate number after he observed the car make an illegal lane change. When he pulled behind the car, the car sped off and stopped in an alley several minutes later. After all of the occupants of the car fled, the appellant was apprehended by Officer Wynn several blocks away and was brought back to the abandoned car. Officer Alexander identified the appellant as one of the persons who fled from the car. A shotgun and a .22 caliber rifle were found next to the abandoned car.
"`In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'"
Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527 (1983), quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879 (1949). See also Carter v. State, 435 So. 2d 137, 139 (Ala.Cr.App.1982). There was sufficient probable cause to arrest the appellant.
VIII
The appellant next argues that the trial court erred in making the following comment concerning the credibility of a witness. The following occurred during the questioning of Bobby Crim:
"The Court: If you'll listen to him. If he's telling the truth, and I have no reason well, I don't know about that. That's something I don't have to worry about."
After this occurred, defense counsel asked for a mistrial, stating that the court impermissibly commented on the credibility of a *376 witness. Immediately after the objection, the trial court gave the following instruction to the jury:
"... What I am trying to tell you is that a judge trying a case should never, and I did not intend to and I don't think I said it, but I want to make sure it's understood perfectly. A judge who is trying a case like this, or any case, should never comment on the evidence in Alabama. Should never say whether a man is telling the truth or not telling the truth, or the witness is telling the truth or not telling the truth. That is strictly up to you, as you have heard when we started this case and as you will hear time and time again. You decide the facts. When I said if he is telling the truth, that didn't mean to comment that he was telling the truth or he wasn't telling the truth. That is strictly up to you all as judges of the facts."
"There is a prima facie presumption against error when a trial judge promptly charges the jury to disregard improper remarks." Peoples v. State, 510 So. 2d 554, 565 (Ala.Cr.App.1986), aff'd 510 So. 2d 574 (Ala.), cert. denied, 484 U.S. 933, 108 S. Ct. 307, 98 L. Ed. 2d 266 (1987). Even if the above comment was understood by the jury to be a comment on the witness's credibility, we believe that any possible prejudice that may have occurred was cured by the court's prompt and thorough instructions to the jury. No reversible error occurred here.
IX
The appellant contends that the trial court erred in refusing his 20 requested jury instructions. However, the appellant has failed to preserve error in the denial of all 20 charges because he did not state specific grounds for the denial of each requested charge before the jury retired. Rule 21.2, A.R.Crim.P., states:
"No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection...."
The appellant argues on appeal that the trial court erred in not charging the jury on reckless endangerment. However, this was never brought to the attention of the trial court, thus, according to Rule 21.2, the issue is not preserved for our review.
The appellant also questions on appeal the court's instruction dealing with complicity. However, the grounds assigned on appeal were not the grounds argued at trial. Specific grounds for objection waive all others not specified. Rika v. State, 587 So. 2d 1054 (Ala.Cr.App.1991).
Last, the appellant questions the court's instruction on attempted murder. "A trial court has broad discretion in formulating its jury instructions, provided they are an accurate reflection of the law and facts of the case." Coon v. State, 494 So. 2d 184, 186 (Ala.Cr.App.1986). The circuit court's instructions on attempted murder were accurate statements of the applicable law. No error occurred here.
For the reasons stated in part I of this opinion, the judgment in this case is reversed and the cause remanded to the Circuit Court for Jefferson County for proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
All the Judges concur.
NOTES
[1] The appellant, a juvenile, was transferred to the circuit court for trial as an adult.
[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617769/ | 38 So. 3d 739 (2008)
PLEASURE ISLAND AMBULATORY SURGERY CENTER, LLC, and Gary Ellis
v.
STATE HEALTH PLANNING AND DEVELOPMENT AGENCY et al.
Gulf Shores, Alabama, and Orange Beach, Alabama
v.
State Health Planning and Development Agency et al.
2070404 and 2070424.
Court of Civil Appeals of Alabama.
October 24, 2008.
*740 Robert D. Segall and J. David Martin of Copeland, Franco, Screws & Gill, P.A., and C. Dennis Nabors of Nabors Belser & DeBray, LLC, Montgomery, for appellants Pleasure Island Ambulatory Surgery Center, LLC, and Gary Ellis; and Wanda J. *741 Cochran, Mobile, for appellants City of Gulf Shores and City of Orange Beach.
Mark D. Wilkerson and Dana H. Billingsley of Wilkerson & Bryan, P.C., Montgomery, for appellees State Health Planning and Development Agency and Alva Lambert, its executive director.
James E. Williams and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery, for appellee Infirmary Health System, Inc.
BRYAN, Judge.
In appeal no. 2070404, Pleasure Island Ambulatory Surgery Center, LLC ("Pleasure Island") and Gary Ellis appeal from a summary judgment entered in favor of the State Health Planning and Development Agency ("SHPDA"); Alva Lambert, the executive director of SHPDA; and Infirmary Health Systems, Inc. ("Infirmary Health"). In appeal no. 2070424, the cities of Gulf Shores, Alabama, and Orange Beach, Alabama ("the cities"), appeal from a summary judgment entered in favor of SHPDA, Lambert, and Infirmary Health. Pleasure Island, Ellis, and the cities will sometimes be referred to collectively as "the plaintiffs"; Infirmary Health, SHPDA, and Lambert will sometimes be referred to collectively as "the defendants." We reverse and remand.
Infirmary Health owns two ambulatory surgery centers in Daphne, Alabama, which is located in Baldwin County. SHPDA granted certificates of need ("CONs") to these two centers in 1998 and 2000. In February 2006, Pleasure Island filed a letter of intent with SHPDA, indicating that Pleasure Island would be seeking a CON to build an ambulatory surgery center in the southern part of Baldwin County.
In April 2006, Infirmary Health sent a letter to Lambert, stating that Infirmary Health intended to relocate one of its ambulatory surgery centers from Daphne to the southern part of Baldwin County. Although the letter did not state the exact location of the proposed center in southern Baldwin County, evidence in the record on appeal indicates that the site of the proposed center is located approximately 36 miles from the Daphne center sought to be relocated. In its letter, Infirmary Health, pursuant to Rule 410-1-7-.02, Ala. Admin. Code (SHPDA), requested that Lambert determine whether the intended relocation of the ambulatory surgery center would require Infirmary Health to obtain a new CON from SHPDA.[1] Lambert subsequently issued a "letter of nonreviewability," stating that Infirmary Health would not be required to obtain a new CON in order to relocate its ambulatory surgery center from Daphne to the southern part of Baldwin County. In August 2006, Pleasure Island applied with SHPDA to build an ambulatory surgery center in the southern part of Baldwin County.
In September 2006, Pleasure Island sued SHPDA, Lambert, and Infirmary Health, seeking a judgment declaring whether Infirmary Health must a obtain a new CON in order to relocate its ambulatory surgery center from Daphne to the southern part of Baldwin County. Pleasure Island also sought injunctive relief and alleged due-process claims against SHPDA and Lambert. The cities, which are located at the southernmost part of Baldwin County, intervened as plaintiffs, alleging that Infirmary Health must obtain a CON to relocate its ambulatory surgery center. Ellis, a purported resident of Gulf Shores, was later joined as a plaintiff by Pleasure Island. Pleasure Island, the cities, *742 Infirmary Health, SHPDA, and Lambert all moved for a summary judgment, and the trial court entered a summary judgment in favor of SHPDA, Lambert, and Infirmary Health. In its summary judgment, the trial court concluded that Infirmary Health was not required to obtain a new CON to relocate its ambulatory surgery center from Daphne to the southern part of Baldwin County. The plaintiffs filed notices of appeal to the supreme court, and that court transferred the appeals to this court, pursuant to § 12-2-7(6), Ala.Code 1975. The appeals were consolidated, and this court heard oral arguments regarding these appeals on September 29, 2008.
"Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So. 2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P."
Hunt v. NationsCredit Fin. Servs. Corp., 902 So. 2d 75, 83 (Ala.Civ.App.2004).
On appeal, the plaintiffs argue that Infirmary Health must obtain a new CON from SHPDA in order to relocate its ambulatory surgery center because, the plaintiffs say, that relocation constitutes the construction or establishment of a "new health care facility" under state law. SHPDA must issue a CON in order for a "new institutional health service" to be acquired, constructed, or operated. § 22-21-265(a), Ala.Code 1975. Section 22-21-263(a), Ala.Code 1975, provides, in pertinent part:
"(a) All new institutional health services which are subject to this article and which are proposed to be offered or developed within the state shall be subject to review under this article.... For the purposes of this article, new institutional health services shall include any of the following:
"(1) The construction, development, acquisition through lease or purchase, or other establishment of a new health care facility ...."
(Emphasis added.) Section 22-21-260(6), Ala.Code 1975, defines "health care facility" to include "facilities for surgical treatment of patients not requiring hospitalization," a definition that includes an ambulatory surgery center. See Rule 410-2-4-.12(2), Ala. Admin. Code (SHPDA) (defining an ambulatory surgery center as "any health care facility, licensed by the Alabama Department of Public Health, with the primary purpose of providing ... surgical care on an outpatient basis and in which the patient stays less than 24 hours").
"[W]e must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says." Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So. 2d 513, 517 (Ala.2003). However, "[w]here the literal interpretation of the statute would lead to absurd consequences or thwart the obvious purpose of the statute, the court may deviate from such an interpretation." Reeder v. Geneva County Bd. of Educ., 586 So. 2d 222, 223 (Ala.Civ. App.1991).
Section 22-21-260(4), Ala.Code 1975, defines "construction" to include the "[a]ctual commencement, with bona fide intention of completing the construction, or completion of the construction, erection, remodeling, relocation, excavation, or fabrication of any real property constituting a facility under this article." (Emphasis added.) Although § 22-21-260(4) defines construction to include the "relocation ... of any real property," that phrase, read literally and in isolation, does not make sense in *743 the context of this case. Considering the remainder of that phrase, "relocation ... of any real property constituting a facility," the statute must be read as concerning the relocation of a facility onto real property, as opposed to the "relocation ... of any real property."
As noted, § 22-21-263(a) provides that the "construction ... or ... establishment of a new health care facility" requires a CON review. Section 22-21-260(4) defines "construction" to include the "relocation" of a facility. In this case, it is undisputed that Infirmary Health intends to relocate one of its ambulatory surgery centers from Daphne to the southern part of Baldwin County. Accordingly, the intended relocation of the facility is "construction" under § 22-21-263(a), thus requiring Infirmary Health to undergo a CON review, and obtain a new CON, in order to relocate the facility.[2]
In the letter of nonreviewability directed to Infirmary Health, Lambert did not cite § 22-21-263(a) or § 22-21-260(4). Instead, Lambert cited only Rule 410-1-2-.05, Ala. Admin. Code (SHPDA), which defines the term "health care facility" to include outpatient surgical facilities, and Rule 410-1-7-.05, Ala. Admin. Code (SHPDA), which discusses "letters of intent." However, the letter of nonreviewability implicitly interpreted § 22-21-263(a) and § 22-21-260(4) to exclude a "relocation" of a health-care facility from the definition of "construction," thus allowing a relocation without a CON review. Evidence submitted to the trial court indicated that Lambert had issued several letters of nonreviewability for proposed relocations since 1998. However, some previous executive directors of SHPDA opined that health-care providers would need to obtain a new CON in order to relocate a facility. We recognize that "[i]nterpretations of an act by the administrative agency charged with its enforcement, though not conclusive, are to be given great weight by the reviewing court." Hulcher v. Taunton, 388 So. 2d 1203, 1206 (Ala.1980). However, "[a]n administrative agency cannot usurp legislative powers or contravene a statute." Ex parte Jones Mfg. Co., 589 So. 2d 208, 210 (Ala.1991).
"An administrative interpretation of long standing is normally entitled to favorable consideration by the courts, but `... this rule of construction is to be laid aside where it seems reasonably certain that the administrator's interpretation has been erroneous and that a different construction is required by the language of the statute.' Boswell v. Abex Corp., 294 Ala. 334, 336, 317 So. 2d 317, 318 (1975)."
Sand Mountain Bank v. Albertville Nat'l Bank, 442 So. 2d 13, 18 (Ala.1983). In this case, the language of the applicable statutory provisions conflicts with Lambert's implicit interpretation of those provisions. Therefore, the language of the statutory provisions must prevail. Id.
The defendants argue that Infirmary Health is not required to obtain a new CON in order to relocate its facility within Baldwin County because the "county" is the health service area for ambulatory surgery centers. Section 22-21-260(7), *744 Ala.Code 1975, defines a "health service area" as "[a] geographical area designated by the Governor, as being appropriate for effective planning and development of health services." Rule 410-1-2-.03, Ala. Admin. Code (SHPDA), provides:
"[Health service] areas may vary according to the types of individual health services. In the absence of a designated geographical area for a particular service, the county in which the service is to be provided shall be deemed to be the health service area."
The State Health Plan does not designate a geographical area for ambulatory surgery centers. Therefore, by default, the county is deemed to be the health service area for an ambulatory surgery center. However, it does not follow from this fact that any relocation of a ambulatory surgery center within a county would not be subject to CON review. Section 22-21-260(4) does not distinguish between a relocation within a health service area and a relocation from one health service area to another, nor does any regulation made pursuant to that section make such a distinction. Section 22-21-260(4) simply refers to the "relocation" of a facility as being "construction," without further geographic conditions; § 22-21-263(a) provides that "construction" of a new health-care facility requires a new CON. Insofar as the default provision in Rule 410-1-2-.03 may be read as conflicting with § 22-21-260(4), the provisions of the statute prevail. Ex parte City of Birmingham, 992 So. 2d 30 (Ala.Civ.App.2008); see also Ex parte Jones, 589 So.2d at 210.
Further, our holding is consistent with the purpose underlying the statutes governing CON review, § 22-21-260 et seq., Ala.Code 1975. Section 22-21-261, Ala. Code 1975, provides, in pertinent part:
"[I]t is the public policy of the State of Alabama that a[CON] program be administered in the state to assure that only those health care services and facilities found to be in the public interest shall be offered or developed in the state. It is the purpose of the Legislature in enacting this article to prevent the construction of unnecessary and inappropriate health care facilities through a system of mandatory reviews of new institutional health services ...."
Evidence indicated that Infirmary Health seeks to relocate its ambulatory surgery center from Daphne to a location approximately 36 miles away in southern Baldwin County. Further evidence indicated that an evaluation of the necessity, feasibility, and appropriateness of allowing an ambulatory surgery center at each of those locations would yield materially different results. Permitting a relocation without a CON review under these circumstances could undermine the purposes of the CON statute. See id.
In their brief, SHPDA and Lambert argue that Pleasure Island failed to exhaust its administrative remedies before filing its action in the trial court. "Generally, a party must exhaust all available administrative remedies before resorting to the courts." Hawkins v. McCain, 549 So. 2d 1345, 1346 (Ala.Civ.App.1989). However, exceptions exist to the general rule of exhaustion of administrative remedies:
"The doctrine does not apply when (1) the question raised is one of interpretation of a statute, (2) the action raises only questions of law and not matters requiring administrative discretion or an administrative finding of fact, (3) the exhaustion of administrative remedies would be futile and/or the available remedy *745 is inadequate, or (4) where there is the threat of irreparable injury."
Ex parte Lake Forest Prop. Owners' Ass'n, 603 So. 2d 1045, 1046-47 (Ala.1992). This case concerns the interpretation of a statute and involves only a question of law. Accordingly, Pleasure Island was not required to exhaust the administrative remedies available to it before filing its action in the trial court.[3]
Infirmary Health must undergo a CON review in order to relocate its ambulatory surgery center from Daphne to the southern part of Baldwin County. Therefore, the trial court erred in entering a summary judgment in favor of the defendants. We reverse the trial court's summary judgment, and we remand the case for further proceedings consistent with this opinion. This holding pretermits discussion of the plaintiffs' arguments for reversal based on alleged due-process violations.
2070404 REVERSED AND REMANDED.
2070424 REVERSED AND REMANDED.
THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE,[4] JJ., concur.
NOTES
[1] Rule 410-1-7-.02(1) provides that "[a]ny person may request for informational purposes only a determination as to the current reviewability of an anticipated project ...."
[2] In October 2006, SHPDA issued a notice proposing to revise Rule 410-1-10, Ala. Admin. Code (SHPDA), "[t]o clarify that the relocation of health care facilities after issuance of a[CON] will require a new [CON], with the exception of certain de minimus relocations" and certain other exceptions. The proposed revision defined a "de minimus relocation" as a "relocation[] within a two-mile radius." SHPDA has not yet adopted the proposed revision.
[3] We note also that § 41-22-10, Ala.Code 1975, permits a declaratory-judgment action challenging the validity or applicability of a rule to be filed initially in the Montgomery Circuit Court. See Alabama Cellular Serv., Inc. v. Sizemore, 565 So. 2d 199 (Ala. 1990). In this case, Pleasure Island challenged whether Lambert, pursuant to Rule 410-1-7-.02, could issue a letter of nonreviewability to Infirmary Health.
[4] Although Judge Moore did not sit for oral argument of this case, he has viewed the video recording of that oral argument. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617970/ | 685 S.W.2d 435 (1985)
Albert Level HALL, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-84-320-CR.
Court of Appeals of Texas, Houston (1st Dist.).
January 31, 1985.
*436 Larry D. Dowell, Houston, for appellant.
John B. Holmes, Jr., Harris County Dist. Atty., James C. Brough, Clay Rawlings, Harris County Asst. Dist. Attys., Houston, for appellee.
Before JACK SMITH, LEVY and BASS, JJ.
OPINION
BASS, Justice.
The appellant, Albert Level Hall, was found guilty of aggravated robbery and sentenced to 25 years confinement in the Department of Corrections.
We affirm.
On October 23, 1983, at two o'clock in the morning, Ulysses Young, manager of a Pizza Hut, left the restaurant to make a night deposit. As he was driving down Homestead Road, he was bumped from the rear by another vehicle. After he was bumped a second time, Young stopped and got out of his car. He was approached by two men *437 who both pulled pistols and robbed him of the night deposits, his wallet, and brief case. He was then told to start walking down the road, and the robbers then drove away. Immediately after the robbers left, Young noticed a Harris County Deputy Sheriff driving a patrol car. He flagged the officer down and reported that he had just been robbed by some people in a brown Pontiac. The deputy had seen the brown Pontiac speed away, and he gave chase. The chase was soon joined by a patrol car from the Houston Police Department. After the appellant's vehicle blew a tire, the two men were apprehended with two pistols, the night deposits, and the Pizza Hut's bank deposit slip. Appellant and his co-defendant were taken into custody and later indicted for aggravated robbery.
We first consider the state's contention that we lack jurisdiction to hear the appeal.
The appellant was convicted and sentenced on May 16, 1984, and on that same day his attorney of record gave notice of appeal and filed a pauper's oath requesting appointment of counsel, as well as a request for a free statement of facts. After the trial court appointed the trial counsel for appellant's appeal, the appellant, without notice to his counsel, executed a pro se motion in arrest of judgment. The motion was not acted upon, and was therefore overruled by operation of law on July 30, 1984. Tex.Code Crim.P.Ann. art. 41.02 (Vernon Supp.1985). There is no notice of appeal filed after July 30, 1984.
The state contends that this court lacks jurisdiction to hear the appeal because appellant's only notice of appeal was premature. However, we hold that the prose motion was not duly and properly presented for the trial court's action, because it was filed by the appellant while he was being represented by appointed counsel. An appellant is not entitled to hybrid representation in a criminal cause of action. See Landers v. State, 550 S.W.2d 272 (Tex. Crim.App.1977); Sanders v. State, 657 S.W.2d 817 (Tex.App. Houston [1st Dist.] 1983, no pet.). We hold, therefore, that the motion was not properly before the court, and that we have jurisdiction to hear the appeal.
In appellant's first ground of error, he complains that the trial court erred in failing to charge the jury on the lesser included offense of robbery. In determining whether a charge on a lesser included offense is required, a two-step analysis is used: first, the lesser included offense must be included within the offense charged; second, there must be some evidence in the record that, if the defendant is guilty, he is guilty of only the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981) (op. on reh'g). Moreover, an instruction on a lesser included offense is proper only where the greater offense requires the jury to find a disputed factual element that is not required in the lesser offense. McKinney v. State, 615 S.W.2d 223, 224 (Tex.Crim.App.1981). In determining whether evidence has been presented which raises the issue of a lesser included offense, this court must consider all the evidence presented at trial. Lugo v. State, 667 S.W.2d 144 (Tex.Crim.App.1984).
Hall contends that his testimony necessitated a charge on robbery. However, in reviewing the appellant's testimony, we find that he does not admit to robbery, but claims that he was selling marihuana to Young, and that the money the police found on him was the proceeds from that sale. He further stated that the first time he had knowledge of the pistol found in the rear of his car or the one by his right rear tire was when the arresting officer showed them to him. It is this testimony that appellant claims negated the use or exhibition of a deadly weapon and required that a charge of robbery be submitted to the jury. This testimony does not raise a disputed factual element that would entitle Hall to a charge on the lesser included offense of robbery. Hall was not contending that he and his co-defendant robbed Young without using a gun, but that he was involved in a drug transaction. Hall's testimony does not show that he was guilty of only robbery. *438 Appellant's first ground of error is overruled.
In his second, third, and fourth grounds of error, appellant contends that the trial court erred in failing to grant his motion for mistrial when the prosecutor asked him an improper question. The appellant, on direct examination by the defense counsel, had testified only concerning his selling of marihuana. Upon cross-examination, the prosecutor asked the appellant several questions.
[Second Ground]
Q. Are you and Mr. Russell in the business of dealing and selling marijuana?
A. Yes, sir.
Q. That was kind of a business partnership between the two of you?
A. Yes, sir.
Q. Do you know where Mr. Russell is right now?
A. He is at TDC.
Q. Do you understand what he is convicted of.
A. Yes.
Q. What is he convicted of?
[Defense Counsel]: I object, Your Honor. It's hearsay and irrelevant.
THE COURT: Sustained.
[Defense Counsel]: I move that the jury be instructed to disregard it.
THE COURT: Don't consider that last question for any purpose.
[Defense Counsel]: I move for a mistrial.
THE COURT: Overruled.
[Third Ground]
Q. Do you understand that Randy never said anything about a sale of marijuana going on in this transaction?
[Defense Counsel]: Your Honor, I object to this last statement, the Prosecutor is testifying to facts outside the record.
[Prosecutor]: Your Honor, I am asking him if he knows.
THE COURT: That will be overruled.
THE WITNESS: I don't know.
[Fourth Ground]
Q. Were you in court the day that Mr. Russell testified as to what happened out there?
A. No sir.
Q. Would it surprise you if he said that you were the one that pulled the gun?
[Defense Counsel]: I object again, Your Honor.
THE COURT: Sustained.
[Defense Counsel]: I ask that the jury be instructed to disregard the last statement.
THE COURT: Don't consider for any purpose.
[Defense Counsel]: It is outside the record and it is hearsay and the Prosecutor's testifying and we move a mistrial.
THE COURT: It's overruled.
We disagree with appellant's contention that the above line of questioning was improper and prejudicial and that it effectively denied him a fair trial. The prosecutor's questions were an attempt to impeach the appellant's testimony. The appellant had testified that a drug transaction had occurred, and that, until the police had showed him the two guns, he had no knowledge of them. Young, however, testified that he saw a gun in the hands of Hall. It was on that line of testimony that the prosecutor cross-examined.
Moreover, except in extreme cases, an instruction to disregard will generally cure error. Seaton v. State, 564 S.W.2d 721, 725 (Tex.Crim.App.1978). This is not an extreme case. The record shows that the police never lost sight of the appellant and his co-defendant and that they were apprehended after a high speed chase. The police found a Pizza Hut bank deposit slip on the floor of appellant's car. They also found the $1,100 that Young was depositing for the restaurant. Moreover, two guns were found at the scene. From reviewing the entire record before us, we conclude that any harmful effect of the prosecutor's statement was cured by the trial court's instruction to the jury to disregard. See Davis v. State, 645 S.W.2d 817 (Tex.Crim.App.1983). Appellant's second, *439 third, and fourth grounds of error are overruled.
In appellant's last argument, he complains the prosecutor's jury argument was improper, specifically with respect to the following language:
I want you to think about something. Why would Tony Young say anything to that deputy if it didn't happen that way? Counsel gets up there and says, don't you know a black man is going to get messed around at 2:30 in the morning. This is 1984. It offends me to hear that racial garbage slung around time and time again.
[Defense Counsel]: Your Honor, I object to the prosecutor striking at the Defendant over the shoulder of the Defense counsel.
[PROSECUTOR]: Your Honor, it's final argument.
[DEFENSE COUNSEL]: I ask the jury be instructed to disregard.
THE COURT: Overruled. You won't consider it for any purpose.
[DEFENSE COUNSEL]: Move for a mistrial, Your Honor.
THE COURT: Overruled.
In order to constitute reversible error, a jury argument must be extreme, manifestly improper, or inject new and harmful facts into evidence in light of the record as a whole. Kerns v. State, 550 S.W.2d 91, 96 (Tex.Crim.App.1977). We view the argument as the prosecutor's attempt to answer opposing counsel's argument, and although improper, it was not so extreme or manifestly improper as to require reversal. Appellant's fifth ground of error is overruled.
The judgment is affirmed.
LEVY, Justice, dissenting.
I respectfully dissent.
Where a prosecutor deliberately pollutes the factfinding process by questions which he knows are improper, seeking to elicit evidence that he knows is inadmissible, an appellate court should carefully, if not meticulously, scrutinize the record to see that the harm thereby inflicted on the accused is not of reversible dimensions.
Specific objections were timely made by defense counsel in the case at bar, and the issue of prosecutorial misconduct is squarely before this court, as disclosed by the quotations from the trial in the majority opinion. Two instances that are especially grievous but not exclusive are as follows:
(1) Q: Were you in court the day that Mr. Russell testified as to what happened out there?
A: No, sir.
Q: Would it surprise you if he said that you were the one that pulled the gun?
MR. DOWELL: I object again, Your Honor.
THE COURT: Sustained.
MR. DOWELL: I ask that the jury be instructed to disregard the last statement.
THE COURT: Don't consider it for any purpose.
MR. DOWELL: It is outside the record and it is hearsay and the prosecutor is testifying and we move for a mistrial.
THE COURT: It's overruled.
(2) Q: Do you understand that Randy never said anything about a sale of marijuana going on in this transaction?
MR. DOWELL: Your Honor, I object to this last statement. The prosecutor is testifying to facts outside the record.
MR. RAWLINGS: Your Honor, I am asking him if he knows.
THE COURT: That will be overruled.
THE WITNESS: I don't know.
This mode of interrogation, calculated to suggest impermissibly, if not falsely to the jury that events about which the prosecutor inquired had actually occurred, to the discredit of the accused, has been thoroughly and consistently condemned by the Court of Criminal Appeals. See Washburn *440 v. State, 299 S.W.2d 706, 708 (Tex.Crim. App.1956), and the cases cited therein.
It is almost a platitude to observe that the primary function of the prosecutor, as an officer of the State, is not to win a case, but to see that justice is done. See Taylor v. State, 653 S.W.2d 295, 302 (Tex.Crim. App.1983); Lackey v. State, 148 Tex. Crim. 623, 624, 190 S.W.2d 364, 365 (1945); Short v. State, 79 Tex. Crim. 426, 187 S.W. 955 (1916). All prosecutors may take comfort in the sure knowledge that the State wins its point, not necessarily when the prosecution triumphs, but when justice is done in the courts. This distinction is sometimes crucial.
I cannot safely say that the cumulative misconduct of the prosecutor was harmless to the appellant or that deterrence of such misconduct will likely result from its passive acceptance by this court.
I would sustain the appellant's second, third, and fourth grounds of error, reverse the judgment of the trial court, and remand for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618011/ | 615 So. 2d 243 (1993)
James F. REYNOLDS, Appellant,
v.
Evelyn Faith REYNOLDS, Appellee.
Nos. 91-2832, 92-93.
District Court of Appeal of Florida, Third District.
March 9, 1993.
Edward C. Vining, Jr., Miami, for appellant.
Andrew M. Leinoff, Coral Gables, for appellee.
Before NESBITT, LEVY and GERSTEN, JJ.
PER CURIAM.
In this dissolution of marriage, the husband appeals the distribution of marital assets and the order that he pay 55% of the wife's attorney's fees. The wife cross-appeals claiming her attorney's fees should be paid in full by the husband.
In evaluating the marital assets of James and Evelyn Reynolds for equitable distribution purposes, the trial court, relying on the testimony of the wife's expert, adopted the figure of $173,785 for the present value of the husband's pension plan. That figure assumed that the husband would continue to work through age 62 and also included expected increases in salary in arriving at that payout amount. Because the inclusion of post-dissolution income in arriving at a value for the plan was erroneous as a matter of law, we reverse the order under review.
*244 As has been repeatedly stated, retirement benefits are to be considered "contract rights of value received in lieu of higher compensation which would otherwise have enhanced either marital assets or the marital standard of living and, therefore, are marital property." DeLoach v. DeLoach, 590 So. 2d 956, 960 (Fla. 1st DCA 1991) quoting Diffenderfer v. Diffenderfer, 491 So. 2d 265, 267 (Fla. 1986), quoting Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 704-05, 463 N.E.2d 15, 20-21 (1984); see § 61.075(5)(a)4 (Fla. Stat. 1991). However, marital property rights cannot inure in property acquired after a judgment of dissolution of marriage. Howerton v. Howerton, 491 So. 2d 614, 615 (Fla. 5th DCA 1986), citing In re Marriage of Frazier, 125 Ill. App. 3d 473, 80 Ill. Dec. 838, 841, 466 N.E.2d 290, 293 (1984).
There are a number of ways to evaluate a pension/retirement plan and this court in no way intends to limit the discretion which has been granted trial judges in this regard. See Diffenderfer, 491 So.2d at 265; see also Trant v. Trant, 545 So. 2d 428 (Fla. 2d DCA), review denied, 551 So. 2d 464 (Fla. 1989). However, here a method was chosen which clearly considered post-dissolution income. Of the three pension evaluations given by the wife's expert, only the figure of $92,862 represents the present value of the benefit earned during the marriage.
A trial court's decisions in a dissolution proceeding should be considered interrelated and part of an overall scheme. Hamlet v. Hamlet, 583 So. 2d 654, 657 (Fla. 1991); see also Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla. 1980). Thus, we reverse the instant orders thereby permitting the trial court to reconsider its rulings in light of the proper valuation of the pension plan. We are not directing the trial judge to make a change in the division of property or obligations of the parties; rather, we are remanding to provide the trial court the opportunity to reconsider its rulings both as to the distribution of assets and liabilities, and the responsibility for fees, in light of the statements made herein.
Accordingly, the orders under review are reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618065/ | 685 S.W.2d 153 (1985)
285 Ark. 124
FAUSETT AND COMPANY, INC.; Fausett Management Company; Round River Development Co.; Edward K. Wills; Stephen C. Hockersmith; and Moise B. Seligman, Petitioners,
v.
The Honorable David BOGARD, Circuit Judge, Respondent.
No. 84-226.
Supreme Court of Arkansas.
March 4, 1985.
*154 Dodds, Kidd, Ryan & Moore, Wright, Lindsey & Jennings, The Rose Law Firm, Little Rock, for petitioners.
Steve Clark, Atty. Gen. by Kay J. Jackson Demailly, Asst. Atty. Gen., Little Rock, for respondent.
PURTLE, Justice.
This matter is here on an original petition for a writ of prohibition to the Pulaski Circuit Court, Sixth Division, to prevent the trial court from conducting a trial on the matter in dispute between the parties. Petitioners argue the Circuit Court lacks jurisdiction because the plaintiff lacks standing and capacity to maintain an action in the courts. We agree that the plaintiff lacks both standing and capacity.
Round River Horizontal Property Regime (Regime) filed suit in the trial court below seeking damages for breach of contract and punitive damages. The Regime was and is an unincorporated association of property owners who own most of the condominiums in a project which was originated, developed, managed and sold by petitioners. The Regime is apparently in control of the common property used by the residents. Petitioners' answer to the complaint was that the Regime lacked capacity and standing to maintain the action. The trial court denied petitioners' motion for a summary judgment. This petition was then filed in this court.
The trial court found that the Regime was an unincorporated association with no designated agent for service of process. This fact is undisputed. Therefore, the question presented is whether such an association has capacity or standing to maintain an action in its own behalf.
We briefly note that the purpose of a writ of prohibition is to prevent a court from exercising powers not authorized by law when there is no other adequate remedy available. Streett v. Roberts, 258 Ark. 839, 529 S.W.2d 343 (1975). If jurisdiction depends upon establishment of facts, then it is a matter for the trial court and properly presented on appeal to this court. Robinson v. Means, Judge, 192 Ark. 816, 95 S.W.2d 98 (1936). In the case before us all parties agree that the plaintiff is an unincorporated *155 association with no agent for service and that the association is apparently operating pursuant to its own bylaws. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Titsworth v. Mayfield, 241 Ark. 641, 409 S.W.2d 500 (1966).
We now consider whether the Regime has capacity to sue. The general rule in Arkansas is that an unincorporated association does not have the capacity to sue. Curators of Central College v. Bird, 148 Ark. 323, 229 S.W. 730 (1921). In Bird we stated: "It goes without saying that suits must be instituted or defended by persons, either natural or artificial. `Curators of Central College' is not a designation or description of any person either natural or artificial." In Baskins v. United Mine Workers of America, 150 Ark. 398, 234 S.W. 464 (1921), an unincorporated association (the union) was sued on allegations that members of the association had murdered the decedent. We held that an unincorporated association could not be sued in the absence of a statute, but that the proper parties were the individual members. We do not find that the legislature has enacted statutes allowing the Regime to sue or be sued. The same issue was considered in Smith v. Arkansas Motor Freight Lines, Inc., 214 Ark. 553, 217 S.W.2d 249 (1949). In Smith the union had entered into a contract with the employer. The president and secretary of the union brought suit, in a class action for all of its members, to compel the employer to comply with the terms of the agreement. We held that the action could be maintained. However, the authority to sue was pursuant to Ark.Stat.Ann. § 27-809 (1947). That statute was superseded by ARCP Rule 23 (class actions). In the present case there was no person, natural or artificial, purporting to act for the class. The Regime is simply a piece of property owned by the individual members of the association. Absent statutory authority or incorporation, the Regime has no capacity to sue or be sued.
We now consider the "standing" issue. An unincorporated association cannot acquire and hold property in its own name. NLR Hunting Club v. Toon, 259 Ark. 784, 536 S.W.2d 709 (1976). Suits brought by or against members of an unincorporated association may be maintained as class actions by naming certain members as representatives of the class if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. ARCP Rule 23.2. Summons may be served upon an unincorporated association by serving an agent authorized by appointment or by law to receive such service. ARCP Rules 4(d) and (5). No such person exists in the present case. In this case there was no named individual who had been appointed or designated by law to receive process or act on behalf of the other class members. Therefore, the Regime had neither standing nor capacity to sue.
Writ granted.
DUDLEY and HAYS, JJ., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617760/ | 958 S.W.2d 474 (1997)
Jeffrey Thomas HAPP, Appellant,
v.
The STATE of Texas, State.
No. 2-97-116-CR.
Court of Appeals of Texas, Fort Worth.
December 11, 1997.
J. Rex Barnett, Fort Worth, for Appellant.
Tim Curry, District Attorney, Charles M. Mallin, Debra Ann Windsor, Tim Bednarz, Assistant District Attorneys, Fort Worth, for State.
Before CAYCE, C.J., and DAY and LIVINGSTON, JJ.
OPINION
PER CURIAM.
Jeffrey Thomas Happ appeals his conviction for burglary of a building. We dismiss the appeal for lack of jurisdiction.
Appellant pleaded guilty to the offense of burglary of a building and was placed on six years' deferred adjudication probation. The State moved to proceed to adjudication of guilt and a capias was issued for his arrest the same day. Appellant was arrested six months later, which was three months after his original probationary period ended. Pursuant to a plea agreement, appellant pleaded true to violating the terms of his deferred adjudication probation and the trial court found him guilty of the lesser-included offense of attempted burglary of a building and sentenced him to ten months' confinement in the Tarrant County Jail. At the hearing, appellant claimed that the State did not act with due diligence in securing his arrest before the end of his probationary period. The trial court found that the State had acted with due diligence but gave appellant permission to appeal the due diligence issue. Appellant filed a general notice of appeal.
We are without jurisdiction to consider appellant's point because he has failed to comply with Texas Rule of Appellate Procedure 25.2(b)(3), formerly rule 40(b)(1), which requires the notice of appeal to state that the trial court granted permission to appeal.[1]See Watson v. State, 924 S.W.2d 711, 712 (Tex.Crim.App.1996); Davis v. State, 870 S.W.2d 43, 46-47 (Tex.Crim.App.1994). Appellant's notice of appeal did not state that the trial court had granted him permission to appeal. The reporter's record from the hearing shows that the trial court granted appellant permission to appeal the due diligence issue. There is no document in the clerk's record, however, containing the extra-notice requirements of rule 25.2(b)(3). See Davis, 870 S.W.2d at 47; Riley v. State, 825 S.W.2d 699, 700-01 (Tex.Crim.App.1992).
*475 This case is factually similar to Davis v. State. At the hearing on the State's petition to proceed to adjudication in the Davis case, the appellant pleaded nolo contendere and the trial court granted her permission to appeal the trial court's ruling on her motion to suppress. See Davis, 870 S.W.2d at 46. In order to appeal, appellant was required to indicate in her notice of appeal that the trial court granted permission to appeal or to specify that the matters were raised by written motion and ruled on before trial. Id.; see also TEX.R.APP. P. 25.2(b)(3). However, the appellant failed to meet either of those requirements and instead filed only a general notice of appeal. Davis, 870 S.W.2d at 46. The Court of Criminal Appeals held that a general notice of appeal is insufficient to confer jurisdiction on a court of appeals in an adjudication of guilt pursuant to Texas Code of Criminal Procedure article 1.15. See id. at 45. Here, appellant pleaded guilty and at the hearing the trial court granted him permission to appeal the due diligence issue. Like the Davis appellant, he filed only a general notice of appeal. As a result, we do not have jurisdiction to hear his point.
We dismiss the appeal for lack of jurisdiction.
NOTES
[1] The State urges us to apply old rule 40(b)(1) under the theory that an injustice would result if we follow the new rule, but it fails to identify what that injustice would be and we have been unable to ascertain one. The relevant provisions of old rule 40(b)(1) and new rule 25.2(b)(3) are virtually identical and the same result would be reached in this case under either version of the rule. Compare TEX.R.APP. P. 40(b)(1), 49 Tex. B.J. 566 (Tex.Crim.App.1986, amended 1997) with TEX.R.APP. P. 25.2(b)(3). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1510232/ | 588 S.W.2d 207 (1979)
Christine L. YOUNG, Appellant-Respondent,
v.
John Lee YOUNG, II and Gay Ann Young, Respondents-Petitioners.
No. KCD 30091.
Missouri Court of Appeals, Western District.
October 1, 1979.
M. Randall Vanet, Kansas City, for appellant-respondent.
*208 Robert J. Harrop, Gage & Tucker, Kansas City, for respondents-petitioners.
Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
KENNEDY, Judge.
The case now before us involves the question of a natural mother's willful abandonment of a boy seven years old at trial time, whose adoption is sought by the youth's stepmother, the wife of the natural father. The natural mother, Christine, has refused to give her written consent to the adoption.
The trial court after trial found willful abandonment by the mother and found that her consent to the adoption was not required under § 453.040(4) RSMo 1978. She has appealed from that judgment.
John II and Christine, natural parents of John III, the child sought to be adopted, were divorced in December 1971. John III was then approximately one year old. Christine had had temporary custody of young John during their nine-month separation before the divorce. The divorce decree gave primary custody of the child to his father, with visitation rights to the mother. The mother thereupon surrendered custody to John II.
Christine visited young John once or twice a month until February or March, 1972. These visits were arranged by Christine's calling John II's mother or his brother. She had little contact, John said none, with John himself after the divorce. She never had his telephone number
John was a member of the Kansas City Police Department during the entire period beginning with the divorce and continuing to the time of the trial of the present case. He testified that it was standard procedure for police officers for security reasons to have unlisted telephone numbers, but that he could always be reached through his mother or a relative, or through the Kansas City Police Department. Evidently Christine's only efforts to contact John were through his mother, with the results hereafter indicated.
After February or March, 1972, Christine no longer exercised her visitation rights, and at the time of trialFebruary 2, 1978 had not seen him since that time. As an explanation for ceasing her visits, she said that it was hard for her to see John's family, that she cried after the visits, and was emotionally unstable. At the time her visits ceased, also, she was expecting another child, who was born August 17, 1972. There had never been any refusal of her visitation rights, Christine said, but "the whole situation was very uncomfortable for me". The resentment toward her when she wanted to see her son was obvious. There was a great deal of animosity between her and her mother-in-law, John's mother, when the divorce was final.
Christine moved from Kansas City to Florida in May, 1974. She called John's mother before she left, to let him know where she was going, "maybe to see John again before I left". John's mother hung up on her.
Christine was back in Kansas City in August of 1974 for a three-day visit. At her request, her mother had called John's mother with the intention of attempting to arrange a visit between Christine and young John while she was home on a three-day visit. John's mother hung up on her.
In July of 1975 Christine was again in Kansas City during a week's vacation. Once again she called John's mother and once again she hung up the phone.
In December, 1976, Christine was again in Kansas City on vacation. This time she called John's mother and asked her to have John call her. John did return her call. They arranged a meeting at a bar suggested by him, the "Streetcar Named Desire". Christine said her reason for the meeting was to arrange to see young John. At this meeting which took place in the evening and according to Christine lasted about five hours, John asked her about her signing a consent for young John's adoption. He had told her in their phone conversation that he wanted to discuss that subject with her, and she had contacted her attorney about it before the meeting. She would not agree *209 to sign the consent and as they parted she said that she would think about it.
According to John's testimony, the subject of young John was not brought up at this meeting except in connection with the consent to the adoption. He testified that Christine did not say in their phone conversation or at the meeting that she wanted to see him.
"I believe she wanted to develop some type of relationship with me," John said.
They talked by telephone again two days later. According to Christine, they agreed that John was to bring young John to Christine's sister's house for a visit at 9 o'clock a. m. on a certain day. John's version was that Christine "ordered" him to bring young John to that address at the specified time. John showed up, but without young John. He was accompanied by a process server who served upon Christine the petition and summons in the present case.
John and his present wife, petitioner Gay Ann Young, were married on August 30, 1973. Young John has lived in their home ever since their marriage. He was four or five years old before he learned that he was not Gay Ann's natural child. John and petitioner Gay Ann have a child born of their marriage, a son named William Michael.
At the time of the trial Christine had returned to and was living in Kansas City with her daughter. She was employed as an administrative assistant to her mother in the operation of a school for retarded children and adults.
We have concluded that the trial court's judgment is to be affirmed, for reasons hereafter set forth.
We place before us Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), under which we affirm the trial court's judgment "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law". The opinion proceeds: "Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is `against the weight of the evidence' with caution and with a firm belief that the decree of judgment is wrong."
The term "willful abandonment", as used in § 453.040, is defined in In re E. C. N., 517 S.W.2d 709, 715 (Mo.App.1974), as follows: ". . . [F]irst, a voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duty of a parent; or, second, an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love and his protection, maintenance, and the opportunity for the display of filial affection . . . The abandonment must be absolute, complete and willful . . . The conduct of a parent . . . must have occurred during the year preceding the filing of the adoption petition; however . . . evidence of a parent's conduct, either before or after the statutory period, may be considered to determine the purpose and intent of the parent . . ." See also D. G. K. v. D. G. K., 545 S.W.2d 81, 82 (Mo.App. 1976).
Intent is to be gathered from the actions of the parties. In re C., C., & C., 380 S.W.2d 510, 515 (Mo.App.1964).
Christine's actions over a period of approximately four and a half yearsthat is, from March, 1972, to December, 1976are barren of any evidence of parental interest or solicitude for young John. She ceased to exercise her visitation rights in the early spring of 1972, although apparently she had not experienced any real difficulty in securing her visitation privileges up to that time. Her May, 1974, and her July, 1975, telephone calls to her erstwhile mother-in-law, which might have led to a request to visit the child, were rebuffed, but she did not attempt to reach the child's father by any other avenue. She did not attempt to reach him through the police department or through another relative. A brother of John, for instance, is mentioned as an intermediary while she was exercising her visitation rights before March, 1972.
*210 Neither did she follow through in August, 1974, after her mother failed in her attempt to have a telephone conversation with John's mother.
While it may not be of large significance, considering his tender age, Christine did not at any time during the period under consideration attempt to communicate with young John by mail or telephone, nor did she send him gifts.
The parties agree that abandonment can be repented of. Matter of K. M. B., 544 S.W.2d 590, 592-3 (Mo.App.1976); T. H. v. Ambelang, 497 S.W.2d 210, 211 (Mo.App. 1973). Appellant points to the December, 1976, meetings between Christine and John as evidence, first, which gives to her earlier actions a slant away from abandonment, see D. G. K. v. D. G. K., supra at 83, and also, assuming earlier abandonment, as indicating an intention on Christine's part to reassert her parental rights and to take up again a parental relationship with young John. Appellant does not admit that the evidence supports her abandonment of the child at any timebut says that if it should show such abandonment, then her December 1976 actions show her repentance.
The trial court did not place appellant's construction upon her December 1976 actions. The court in its memorandum opinion said: "From the evidence, the Court gleans there was very little discussion at the bar relative to the welfare of the child. True, she asked to see the pictures of the child which is in and of itself not of sufficient importance to override her past conduct of abandonment. The same is true of the Warwick meeting."
John testified that at the "Streetcar" meeting Christine had said nothing about wanting to see young John, and in their telephone conversation during which the meeting was arranged, she had said nothing about wanting to see the youngster. He testified: " . . . Not one time in the phone conversation or the conversation in the bar did she want to see him, did she even mention him other than the fact that she would not consent to adopt." When asked the reason she wanted to meet him, John replied: "I believe she wanted to develop some type of relationship with me."
Christine testified that she had made it plain at that meeting that she did wish to see little John, and had asked John if he had any pictures (he didn't). She also said that she had told John in the phone conversation that she wanted to see the child.
We must defer to the trial court's choice between conflicting accounts of these conversations, which depend upon the credibility of the witnesses. Rule 73.01(3(b)); Cook v. Lodes, 560 S.W.2d 64 (Mo.App. 1977).
As to Christine's request to Johnor her demand, according to Johnthat the child be brought to her sister's Warwick address for a visit with her, the trial court did not believe that that single gesture was sufficiently important to indicate repentance on Christine's part or to give a different cast to her neglect over the preceding period of years. R. F. N. v. G. R., 546 S.W.2d 510, 512 (Mo.App.1976). We find no basis for rejecting the trial court's view of the December, 1976, meetings and conversations.
Christine attributed her long neglect of her parental rights and responsibilities to financial difficulties and to her emotional instability. She claimed upon trial to have regained her emotional health and said she was prepared to resume her role as non-custodial parent. Although her explanation may have justified her actions on moral grounds, it does not necessarily negative an intent to abandon. The evidence was for the trial court to weigh. Flarsheim v. Twenty Five Thirty Two Broadway Corp., 432 S.W.2d 245, 254 (Mo.1968); In re J. L. L., 402 S.W.2d 629, 633-4 (Mo.App.1966).
The court in his memorandum opinion incorrectly found that the divorce decree had given Christine primary custody and that Christine had voluntarily surrendered custody of young John to his father after the divorce. The fact was that the decree had given primary custody to the father and she surrendered the child to him *211 in obedience to the decree. This occurred within days after the decree was granted in December, 1971. This fact does not loom large in the total picture. Had the trial court correctly found the fact, there would remain sufficient and substantial evidence to support the court's judgment and we do not believe that the fact, incorrectly found by the court, played any decisive role in the decision.
The judgment of the trial court is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1784039/ | 750 N.W.2d 603 (2008)
278 Mich. App. 327
Nicole D. RIVETTE, Plaintiff-Appellee,
v.
Andrew Thomas ROSE-MOLINA, Defendant-Appellant.
Docket No. 280922.
Court of Appeals of Michigan.
Submitted March 12, 2008, at Detroit.
Decided March 27, 2008, at 9:05 a.m.
*604 Thomas R. McCombs, Flint, for the defendant.
Before: SERVITTO, P.J., and HOEKSTRA and MARKEY, JJ.
PER CURIAM.
Defendant appeals as of right from the trial court's order denying his amended petition for change of custody and other relief. Because both the referee and the trial court erred by making a custody determination without consideration of the statutory best-interest factors, we reverse.
On appeal, defendant argues that the referee erred by not making findings of fact or considering the best-interest factors in determining custody of the parties' minor child and that the trial court erred by upholding the referee's custody recommendation and ruling that the issue of custody could not be revisited. We agree.
Because defendant did not object to the referee's custody recommendation within 21 days as required by MCL 552.507(4) and MCR 3.215(E)(4), the issue is unpreserved. Review of an unpreserved error is limited to determining whether a plain error occurred that affected substantial rights. Kern v. Blethen-Coluni, 240 Mich.App. 333, 336, 612 N.W.2d 838 (2000). "`To avoid forfeiture under the plain-error rule, three requirements must be met: (1) an error must have occurred; (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights.'" Id., quoting People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999).
The court may designate a referee to act as a fact-finder in domestic relations matters. MCL 552.507. Within 21 days after a referee hearing, the referee must: (1) either make a statement of findings on the record or submit a written, signed report containing a summary of testimony and a statement of findings and (2) make a recommendation for an order and submit it to the court and the parties. MCR 3.215(E)(1). "The referee must find facts specially and state separately the law the referee applied." MCR 3.215(E)(1)(a). Although an overelaboration of detail or particularization of facts is not necessary, brief, definite, and pertinent findings and conclusions on the contested matters are required. Id. A party may obtain a judicial hearing on any matter that has been the subject of a referee hearing and that resulted in a statement of findings and a recommended order by filing a written objection within 21 days after the referee's recommendation for an order is served on the party. MCR 3.215(E)(4). If the recommendation is approved by the court and no written objection is filed with the court within 21 days after service, the recommended order will become a final order. MCR 3.215(E)(1)(c).
Although caselaw expressly provides that circuit courts must analyze the best-interest factors in determining custody, the law regarding custody hearings conducted by referees does not expressly provide whether the best-interest factors must be addressed by referees in rendering a custody decisions. In deciding a child custody matter, the trial court must evaluate each of the statutory factors pertaining *605 to the best interest of the child[1] and must explicitly state its findings and conclusions regarding each factor. Bowers v. Bowers, 190 Mich.App. 51, 54-55, 475 N.W.2d 394 (1991). When a trial court does not make such findings on the best-interest factors, the proper remedy is reversal and a remand for a new child-custody hearing. Bowers, supra at 56, 475 N.W.2d 394; Constantini v. Constantini, 171 Mich.App. 466, 470, 430 N.W.2d 748 (1988).
There is nothing in the custody law to suggest that a referee hearing, limited as it might be in comparison to a full de novo hearing before a judge, absolves the referee of the responsibility to examine the best-interest factors. It would stand to reason that, if an analysis of the best interest-factors is required in the circuit court to assure that the custody determination is based on an informed decision about the child's best interest, a referee's custody recommendation which the circuit court may uphold without making any independent findings concerning the child's best interests likewise should include consideration of the best-interest factors. Although a referee perhaps need not engage in the same type of in-depth, lengthy analysis as a judge in a custody hearing would, some meaningful consideration of the best-interest factors is nevertheless necessary to ensure that the referee considers all the relevant criteria and makes an informed decision.
In the instant case, the best-interest factors were not mentioned, let alone analyzed, when the referee made a custody determination. The parties and the referee started out the hearing under the impression that the hearing would only determine parenting time. Although defendant would ultimately seek custody, he expressed that he would not do so on the day of the referee hearing. In fact, several times throughout the hearing, defendant made clear that he was not seeking custody at that hearing, stating specifically that the hearing would be too limited in nature to allow a determination of custody. The hearing lasted 35 minutes, only plaintiff and defendant testified, and the parties were limited to 10 minutes of direct testimony and five minutes of cross-examination. The referee's custody conclusion consisted of two sentences of transcript and was expressed as an afterthought, prompted only by defense counsel's concluding question: "I'm assuming you're not making a ruling on the joint-legal request?" to which the referee responded, "[I]f I have to make a decision regarding custody for the custody issue, I would deny joint cust legal custody at this time. Okay, it has not been established that he has been involved in the child's life enough to have joint custody at this point." Such was the entirety of the referee's analysis of the custody issue. Not only did the referee fail to consider the best-interest factors, she also violated MCR 3.215(E)(1)(a) by not making findings of fact and not stating the applicable law.
Had defendant known that the hearing would determine custody, and had he been afforded a meaningful amount of time to present evidence, the custody determination may have turned out differently. Defendant has levied serious allegations of plaintiff's mental illness and erratic, violent behavior, which allegations were not at all presented at the referee hearing. Custody is a weighty issue and merits careful consideration. At a minimum, and in the interest of fairness, defendant should be *606 afforded a meaningful opportunity to present evidence bearing on his suitability, and plaintiff's alleged lack of suitability, to parent.
In our review of a substantial number of cases involving a referee's custody determination, the vast majority involved referee hearings that were considerably more in-depth and substantial (whether that be measured by length of hearing, quantity of testimony or evidence presented, or the extent to which the best-interest factors were analyzed) than the brief, limited hearing in the instant case. Constantini, supra at 469-470, 430 N.W.2d 748 (referencing a referee hearing in which the best-interest factors were analyzed and which resulted in a lengthy report and recommendation). Additionally, the majority of these cases expressly referenced the referee's analysis of the best-interest factors. See Fletcher v. Fletcher, 447 Mich. 871, 874-875, 526 N.W.2d 889 (1994) (indicating that the referee came to a decision regarding custody by reviewing the best-interest factors); Heltzel v. Heltzel, 248 Mich.App. 1, 12, 638 N.W.2d 123 (2001) (referencing the referee's analysis of the best-interest factors).
Significantly, even assuming that the referee was under no duty to consider the best-interest factors, the trial court committed its own error by entering a final custody order without satisfying itself that the best-interest factors were considered. The trial court denied defendant's motion to set aside the referee's custody determination, insisting that the referee hearing already determined custody and that to allow defendant another opportunity to litigate the matter would be akin to granting him a proverbial second bite of the apple. However, our Supreme Court, in Harvey v. Harvey, 470 Mich. 186, 187-188, 680 N.W.2d 835 (2004), held that regardless of the type of alternative dispute resolution that parties use, the Child Custody Act[2] requires the circuit court to determine independently what custodial placement is in the best interests of the children, emphasizing that the statutory best-interest factors control whenever a court enters an order affecting child custody. Harvey, supra at 193, 680 N.W.2d 835 (holding that "[n]othing in the Child Custody Act gives parents or any other party the power to exclude the legislatively mandated `best interests' factors from the court's deliberations once a custody dispute reaches the court"). Because the trial court entered an order affecting custody without either satisfying itself that the referee considered the best interest of the child, or making its own findings regarding the best interest of the child, the court erred, and the error prejudiced defendant.
In sum, the referee erred in making a custody determination without considering the best-interest factors. Likewise, the trial court erred in accepting the referee's custody recommendation without satisfying itself that the best-interest factors were considered. The trial court's order denying defendant's petition for change of custody and other relief is reversed, and the case is remanded for a custody hearing in the circuit court, where the best-interest factors shall be evaluated. The trial court is instructed to consider the best-interest factors and to determine custody as if no prior determination on custody has been made.
Reversed and remanded. We do not retain jurisdiction.
NOTES
[1] Custody disputes are to be resolved in the child's best interest, as measured by the factors set forth in MCL 722.23.
[2] The Child Custody Act is codified at MCL 722.21. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304713/ | CARNEY, J.
This is an appeal upon the technical record by defendant below, R. P. Van Pelt, from a decree of the Chancery Court of Shelby County, Tennessee, ordering the defendant, Van Pelt, to pay $136 rental on a house and lot; ordering the defendant to pay complainant $200 which he had received as earnest money on the sale of said house and lot; ordering the cancellation of a Power of Attorney granted by complainants to defendant, Van Pelt, and cancelling a contract of sale of said house and lot by complainants to purchasers, Hicks and wife.
Substantially, complainants ’ original bill averred that the complainants were the owners of a house and lot in Memphis and that upon representations by defendant, Van Pelt, that he was a licensed and duly qualified real estate agent they gave him ,a written contract designated “Power of Attorney” authorizing said Van Pelt to negotiate sale of the real estate; that Van Pelt took charge of the real estate and negotiated a contract of sale of said property to defendant Hicks and wife for $6,000 and that Van Pelt had received rentals and was occupying the property himself, and had refused to account to complainants for rentals collected from said tenants to the time of the filing of the bill, and had refused to give possession. The bill further alleged that after the execution of the Power of Attorney they learned that the defendant, Van Pelt, is not a licensed and qualified real estate agent and that his license had been revoked in 1947 for certain alleged conversions of clients’ monies.
*355The prayer in the hill was for cancellation of the Power of Attorney; accounting for rentals; eviction from the property; revocation of the contract of sale between complainants and the defendant, Hicks and wife, insofar ,as the interest of the defendant, Yan Pelt, was concerned; and for general relief.
The defendants, Hicks and wife, were made parties defendant and pro confesso was entered against them. The defendant, Yan Pelt, answered denying the frand; admitting the negotiation of the contract; admitting that he owed rentals of the sum of $80, and admitting that he had $200 earnest money which was paid over hy the purchaser, Hicks, and claimed that he was entitled to another $100 to make a total of $3O0! compensation for his services in negotiating the sale. The contract for the sale of real estate made an exhibit to complainants’ original bill recited that Yan Pelt was to receive $300 ont of the money to be paid the sellers from the sale of the real estate.
The case was tried npon oral testimony and the judgment was entered as above set ont.
The defendant, Yan Pelt, by his two Assignments of Error contends that npon the face of the technical record the judgment of the Court in allowing a recovery of the $200 for the earnest money collected by Yan Pelt and in failing to give Yan Pelt full credit for the $300 commission as against the rentals collected by him, is erroneous.
There being no Bill of Exceptions this Court cannot weigh any question of evidence, and can only consider the facts in the case as they appear from the original bill and exhibits thereto, the answer of the defendant, and the judgment of the Court.
*356Section 7182.58 of the Code of Tennessee makes it unlawful for any person, partnership, etc., to act as real estate broker or real estate salesman or directly or indirectly to engage or assume to engage in the business of real estate broker without first obtaining a license issued by the Tennessee Real Estate Commission, in all counties having a population of 50,000 or more, according to the census of 1950. Section 7182.59 of the Code defines what constitutes a real estate broker or real estate salesman.
As an exclusion to- the provisions of Section 7182.59, it is provided that the provisions of Section 7182.58, and Section 7182.59 shall not apply to “persons acting as attorney-in-fact under a duly executed power of attorney from the- owner .authorizing the final consummation or performance of any contract for the sale, lease or exchange of real estate * *
The Power of Attorney, a copy of which was made an exhibit to the original bill and incorporated therein by reference, signed by the complainants, provided as follows:
“Power of Attorney.
“August 14, 1952.
“To Whom This May Concern:
“This is to certify that we, Ed Brown and wife, Bessie Brown, do hereby give unto R. P. Van Pelt the Power of Attorney for the purpose of handling all the business pertaining to our property, known as 216 W. California Ave. in the city of Memphis, Shelby County, Tennessee, with full power to repair and to sell the same and to contract with .any person or persons for any amount of not less than $5500.00- or more if any repairs or to be made, and the sale price of the said property is to be for cash, if not a special *357provision is to be made, between tbe parties hereto, and that R. P. Yan Pelt shall have fall power to act in my place and stead and to do the same which we wonld have done in person.
“In Witness hereof we set forth onr hand this day and year above written.
“Ed Brown
“Bessie Brown”
We think that said Power of Attorney which was prepared by the defendant, according to the bill, is not snch a Power of Attorney as was contemplated by the exclusion of Section 7182.59 of the Code and that the activities of the defendant in taking charge of the real estate, collecting the rentals therefrom, and negotiating a sale of said house and lot under said Power of Attorney, constituted the defendant Yan Pelt a real estate broker under the terms of Section 7182.59 requiring him to have a license to do such business in Shelby County, Tennessee, which we judicially know has a population of over 50,000. We think the Power of Attorney contemplated as an exclusion to Section 7182.59 is one authorizing a particular person to perform a certain particular act or acts on behalf of the grantors more or less ministerial in nature with very little, if any, discretion in the Attorney in Pact as to the act or acts to be done. Therefore, it appears that the defendant, Van Pelt, was acting as a real estate broker without license and in violation of the law. A number of Tennessee cases have held that such a broker is not entitled to commission for such services. Anderson v. Sanderson, 25 Tenn. App. 425, 158 S. W. (2d) 374; Winn v. Wright, 28 Tenn. App. 40, 185 S. W. (2d) 908; Frierson v. Ewing, 32 Tenn. App. 366, 222 S. W. (2d) 678.
It is the contention of Yan Pelt that as to the $200 already received by him from purchaser Hicks, with the *358consent of complainants, Re is not liable in law to return the same. We think this contention must also be overruled. The complainants’ bill alleged in substance that the defendant, Van Pelt, perpetrated a fraud upon them in getting authority to rent and sell their real estate by representing himself to be a licensed real estate broker when he was not. The Chancellor found the proof to be sufficient to sustain this allegation.
“Fraud vitiates and avoids all human transactions, from the solemn judgment of a court to a private contract. It is as odious and as fatal in a court of law as in a court of equity. It is a thing indefinable by any fixed and arbitrary definition. In its multiform phases and subtle shapes, it baffles definition. It is said, indeed, that it is part of the equity doctrine of fraud not to define it, lest the craft of man should find ways of committing fraud which might evade such a definition.” Smith v. Harrison, 49 Tenn. 230, 242. Also, in Metropolitan Life Ins. Co. v. Hedgepath, 182 Tenn. 296, 185 S. W. (2d) 906, 907, Justice Neil said: “Authorities need not be cited to sustain the proposition that fraud, when fully made to appear, vitiates all contracts into which it enters.” In this case at bar the fraud of the defendant completely vitiated the Power of Attorney and also vitiated any rights which the defendant, Van Pelt, received under said Power of Attorney so fraudulently obtained. We cannot see that the fact that the purchaser Hicks paid the earnest money to Van Pelt instead of complainant Brown doing so gives the defendant, Van Pelt, any additional authority to keep the $200 earnest money. He received this earnest money under a contract procured by his fraud, and we think it was within the scope of the pleadings for the Chancellor to order the defendant to pay over the $200 received by defendant, Van Pelt, as earnest *359money in part payment, to complainants, owners of the real estate.
The defendant is not entitled to retain any benefits obtained by his fraud, and the fact that Hicks and wife suffered a pro confesso to go down against them and did not resist the cancellation of the sales contract does not validate the defendant’s retention of said $200 earnest money or part payment.
Therefore, the Assignments of Error of the defendant, Van Pelt, are overruled, and a decree will be entered affirming the decree of the Chancellor. The defendant, Van Pelt, is taxed with the costs of this appeal.
Swepston. P. J., and Avery, J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2697831/ | [Cite as Parker v. Distel Constr., Inc., 2011-Ohio-4727.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
CASSIE PARKER, :
Plaintiff-Appellee, : Case No. 10CA18
vs. :
DISTEL CONSTRUCTION, INC.,
et al., : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Wilson G. Weisenfelder, Jr., RENDIGS, FRY, KIELY &
DENNIS, L.L.P., One West Fourth Street, Suite 900,
Cincinnati, Ohio 45202-3688
COUNSEL FOR APPELLEE: William H. Safranek, P.O. Box 2606, Athens, Ohio 45701
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 9-6-11
ABELE, J.
{¶ 1} This is an appeal from a Jackson County Common Pleas Court judgment that denied
the City of Wellston's, defendant below and appellant herein, request for summary judgment.
Appellant assigns the following error for review:
“THE TRIAL COURT ERRED TO THE PREJUDICE OF THE CITY
OF WELLSTON IN DENYING ITS CLAIM TO IMMUNITY.”
{¶ 2} On September 4, 2007, Cassie Parker, plaintiff below and appellee herein, fell into an
JACKSON, 10CA18 2
approximately twenty-five inch hole. The hole is located at the side of appellant’s water meter and
Parker suffered injuries as a result of the fall.
{¶ 3} On August 26, 2009, appellee filed a complaint against appellant (and others who are
no longer parties to the action). Appellee alleged that appellant negligently failed to safely maintain
the water meter hole, which caused appellee to suffer injuries.
{¶ 4} Appellant requested summary judgment and claimed that (1) it is immune from
liability under R.C. 2744.02(A); and (2) none of the R.C. 2744.02(B) exceptions remove its
immunity. Appellee argued, however, that appellant’s failure to properly maintain the water meter
hole constitutes a proprietary function for which liability may attach under R.C. 2744.02(B)(2).
After consideration of the motion and contrary memoranda, the trial court determined that genuine
issues of material fact exist and denied appellant’s motion. The trial court did not, however, provide
a specific reason for its decision. This appeal followed.
{¶ 5} In its sole assignment of error, appellant asserts that the trial court improperly
determined that it is not entitled to statutory immunity.1 Appellant contends that appellee failed to
demonstrate that any of the exceptions to immunity apply so as to subject appellee to liability for
negligence. In particular, appellant asserts that appellee failed to establish that either R.C.
2744.02(B)(2) or (3) removes its immunity: (1) R.C. 2744.02(B)(2) does not apply because the
maintenance or repair of the water meter pit lid constitutes a governmental function; (2) R.C.
1
We note that the trial court’s decision does not provide a specific reason for denying appellant’s summary
judgment motion, other than to state that genuine issues of material fact remain. The trial court did not mention R.C. Chapter
2744 and did not issue any specific determination as to whether appellant is entitled to statutory immunity. Although the
trial court did not enter a specific finding regarding statutory immunity, the effect of the trial court’s decision is to deny
appellant the benefit of an alleged immunity. That is, by determining that genuine issues of material fact remained, the trial
court necessarily denied appellant the benefit of an alleged immunity.
JACKSON, 10CA18 3
2744.02(B)(3) does not apply because the water meter pit is not located on a public road.
{¶ 6} Appellee contends, however, that appellant may be held liable under R.C.
2744.02(B)(2). Appellee asserts that appellant’s failure to place a lid on the water meter pit
constitutes maintenance of the water supply system, which is a proprietary function under R.C.
2744.01(G)(2)(c). We observe that appellee does not argue that appellant may be held liable
under R.C. 2744.02(B)(3), thus we limit our review to whether R.C. 2744.02(B)(2) removes
appellant’s immunity.
A
SUMMARY JUDGMENT STANDARD
{¶ 7} Appellate courts review trial court summary judgment decisions de novo. Grafton
v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Accordingly, appellate
courts must independently review the record to determine if summary judgment is appropriate. In
other words, appellate courts need not defer to trial court summary judgment decisions. See
Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153;
Morehead v. Conley (1991), 75 Ohio App.3d 409, 411-412, 599 N.E.2d 786. Thus, to determine
whether a trial court properly awarded summary judgment, an appellate court must review the
Civ.R. 56 summary judgment standard as well as the applicable law. Civ.R. 56(C) provides:
Summary judgment shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence in
the pending case, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. No evidence or stipulation may be
considered except as stated in this rule. A summary judgment shall not be rendered
unless it appears from the evidence or stipulation, and only from the evidence or
stipulation, that reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment
JACKSON, 10CA18 4
is made, that party being entitled to have the evidence or stipulation construed most
strongly in the party’s favor.
{¶ 8} Accordingly, trial courts may not grant summary judgment unless the evidence
demonstrates that (1) no genuine issue as to any material fact remains to be litigated, (2) the
moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and after viewing the evidence most strongly in
favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for
summary judgment is made. See, e.g., Vahila v. Hall (1997), 77 Ohio St.3d 421, 429-430, 674
N.E.2d 1164.
B
R.C. CHAPTER 2744
{¶ 9} R.C. Chapter 2744 establishes a three-step analysis to determine whether a political
subdivision is immune from liability. See, e.g., Cramer v. Auglaize Acres, 113 Ohio St.3d 266,
270, 2007-Ohio-1946, 865 N.E.2d 9, ¶14. First, R.C. 2744.02(A)(1) sets forth the general rule
that a political subdivision is immune from tort liability for acts or omissions connected with
governmental or proprietary functions. See, e.g., Cramer; Colbert v. Cleveland, 99 Ohio St.3d
215, 2003-Ohio-3319, 790 N.E.2d 781, at ¶7; Harp v. Cleveland Hts. (2000), 87 Ohio St.3d 506,
509, 721 N.E.2d 1020. The statute states: “Except as provided in division (B) of this section, a
political subdivision is not liable in damages in a civil action for injury, death, or loss to person or
property allegedly caused by any act or omission of the political subdivision or an employee of the
political subdivision in connection with a governmental or proprietary function.”
{¶ 10} Second, R.C. 2744.02(B) lists five exceptions to the general immunity granted to
JACKSON, 10CA18 5
political subdivisions under R.C. 2744.02(A)(1). See, e.g., Cramer; Ryll v. Columbus Fireworks
Display Co., 95 Ohio St.3d 467, 470, 2002-Ohio-2584, 769 N.E.2d 372, at ¶25. As relevant in the
case sub judice, R.C. 2744.02(B)(2) states:
Except as otherwise provided in sections 3314.07 and 3746.24 of the
Revised Code, political subdivisions are liable for injury, death, or loss to person or
property caused by the negligent performance of acts by their employees with
respect to proprietary functions of the political subdivisions.
{¶ 11} Finally, if liability exists under R.C. 2744.02(B), R.C. 2744.03(A) sets forth several
defenses that re-instate a political subdivision’s immunity.2 See Cramer; Colbert at ¶9.
Generally, whether a political subdivision is entitled to statutory immunity under R.C. Chapter
2744 presents a question of law. See, e.g., Conley v. Shearer (1992), 64 Ohio St.3d 284, 292, 595
N.E.2d 862; Murray v. Chillicothe, Ross App. No. 05CA2819, 2005-Ohio-5864, ¶11.
{¶ 12} In the case sub judice, the parties do not dispute that appellant is entitled to the
general grant of immunity under R.C. 2744.02(A)(1). Instead, the dispute focuses on the R.C.
2744.02(B)(2) exception to immunity.
{¶ 13} R.C. 2744.02(B)(2) subjects a political subdivision to liability for “the negligent
performance of acts by their employees with respect to proprietary functions of the political
subdivisions.” Thus, before this provision removes a political subdivision’s immunity, a plaintiff
must demonstrate that the political subdivision’s employees negligently performed a proprietary
function. Accordingly, before R.C. 2744.02(B)(2) will remove a political subdivision’s immunity,
the plaintiff must establish: (1) the elements required to sustain a negligence action-duty, breach,
2
We observe that appellant has not argued on appeal that even if an immunity exception applies, R.C. 2744.03(A)
re-instates its immunity. Our review, therefore, is limited to whether the R.C. 2744.02(B)(2) exception applies.
JACKSON, 10CA18 6
proximate cause, and damages; and (2) that the negligence arose out of a “proprietary function.”
See Essman v. Portsmouth, Scioto App. No. 09CA3325, 2010-Ohio-4837, ¶28, citing Gabel v.
Miami E. School Bd., 169 Ohio App.3d 609, 2006-Ohio-5963, 864 N.E.2d 102, at ¶39-40. A
“proprietary function” includes “[t]he establishment, maintenance, and operation of a utility,
including * * * a municipal corporation water supply system.” R.C. 2744.01(G)(2)(c).
{¶ 14} In the case sub judice, appellant contends that the R.C. 2744.02(B)(2) exception
does not apply to its failure to place a lid on the water meter pit. Appellant contends that the
maintenance or repair of the water meter pit lid is analogous to the maintenance or repair of a
manhole cover, which at least one court has concluded constitutes a governmental function.
Appellant asserts that the water meter pit lid is not part of the water supply system, but instead, is
part of the right-of-way and is intended only to cover the opening to the water meter pit.
{¶ 15} In support of its argument, appellant relies upon Burns v. Upper Arlington, Franklin
App. No. 06AP-680, 2007-Ohio-797. In Burns, the plaintiff tripped over a manhole cover while
walking on a sidewalk. The evidence showed that the placement of the manhole cover created a
raised edge on the sidewalk, which allegedly caused the plaintiff to trip. The plaintiff filed a
complaint that alleged that the city: (1) failed to properly fit and align the manhole cover with the
sidewalk; and (2) negligently failed to maintain the sidewalk in a reasonably safe condition. The
city argued that it was entitled to immunity under R.C. Chapter 2744, and specifically that the
plaintiff could not establish that the R.C. 2744.02(B)(2) exception to immunity applied so as to
remove the general grant of immunity. The city contended that any negligence on its part resulted
from a governmental, not a proprietary, function. The city claimed that its placement of the
manhole cover constituted a governmental function under R.C. 2744.01(C)(2)(e), which defines a
JACKSON, 10CA18 7
governmental function as “* * * the maintenance and repair of * * * sidewalks * * *.” Thus, the
city contended that the placement of the manhole cover was nothing more than a sidewalk
maintenance issue. The plaintiff, however, alleged that the city’s placement of the manhole cover
related to its “maintenance, destruction, operation, and upkeep of a sewer system,” which R.C.
2744.01(G)(2)(d) defines as a proprietary function. The trial court agreed with the plaintiff and
denied the city’s summary judgment motion.
{¶ 16} On appeal, the court framed the issue as “whether aligning the manhole cover would
be considered part of the maintenance of the sidewalk and therefore a governmental function * * *
or part of maintenance of the sewer system and therefore a proprietary function * * *.” Id. at ¶12.
The court concluded that the city’s placement of the manhole cover in the sidewalk constituted a
sidewalk maintenance issue and explained: “Although the manhole cover upon which [the
plaintiff] tripped was intended to provide access to the sewer system, it was not, in and of itself, a
part of that system. It was, instead, intended to form part of the walkway for pedestrian traffic to
use, and was therefore part of the sidewalk.” Id. at ¶15. The court therefore reversed the trial
court’s decision that denied the city summary judgment.
{¶ 17} We do not find the instant case to be substantially similar to Burns. In Burns, the
plaintiff, unlike appellee, never encountered the underground system. Instead, the Burns plaintiff
tripped and fell on a sidewalk. In the case at bar, appellee, unlike the plaintiff in Burns, did not
trip over a manhole cover, and nor did she trip over an object that was part of a sidewalk or part of
a pedestrian walkway. Instead, appellee fell into a water meter pit. Thus, we do not believe that
this case is similar to a plaintiff tripping over an object improperly placed on a sidewalk as in
Burns, but, rather, is an instance of a plaintiff falling into a hole that the city left uncovered. The
JACKSON, 10CA18 8
hole that appellee fell into in the case at bar was the water meter pit. The water meter pit is part
and parcel of the water supply system. Appellant’s attempt to analogize the present case to Burns
by stating that the water meter pit lid is analogous to the sidewalk manhole cover fails to recognize
that in the case at bar, there was no lid. Unlike the plaintiff in Burns, appellee has not claimed
that appellant negligently placed the water meter pit lid on a sidewalk so as to cause her fall.
Instead, she has alleged that appellant negligently maintained the water supply system by failing to
place a lid over the water meter pit so as to prevent her fall.
{¶ 18} We believe that the case sub judice is more analogous to recent cases that have
distinguished Burns. For example, in Scott v. Columbus Dept. of Pub. Utilities, Franklin App.
No. 10AP-391, 2011-Ohio-677, the plaintiff filed a negligence complaint against the city after he
fell into a manhole that did not have a properly attached cover. He alleged that the city negligently
allowed the manhole cover to become improperly anchored. The city asserted that it was entitled
to immunity under R.C. Chapter 2744. The plaintiff argued that R.C. 2744.02(B)(2) applied and
removed the city’s immunity. The trial court agreed with the city and dismissed the plaintiff’s
complaint.
{¶ 19} On appeal, the court considered whether the plaintiff’s complaint alleged negligence
with respect to the maintenance of the sewer system, a proprietary function, or whether it alleged
maintenance and repair of the sidewalk, a governmental function. The court first observed that the
trial court “misstated the issue as whether the manhole cover itself functioned as a part of the
sidewalk or a part of the sewer.” Id. at ¶11. The court clarified that the “central issue” is
“whether the action for which [the plaintiff] seeks to hold the city liable is part of a governmental
function or part of a proprietary function.” Id. The court stated that whether the city is entitled to
JACKSON, 10CA18 9
immunity depends on whether “allowing the manhole cover to become improperly anchored,
relates to the maintenance of the sewer system or to the maintenance of the sidewalk.” Id. The
court ultimately concluded that the plaintiff’s complaint alleged sufficient facts to support his
theory of negligence against the city and that it did not appear beyond doubt that the city was
entitled to immunity based upon the allegations in the complaint.
{¶ 20} In reaching its decision, the court rejected the city’s argument that the plaintiff’s
allegations were analogous to the plaintiff’s allegations in Burns. The court explained:
“The city maintains that the issue in Burns is identical to the issue here and
that Burns is, therefore, dispositive. Specifically, the city contends that the alleged
act here–allowing the manhole cover to become improperly anchored–is
indistinguishable from the alleged improper alignment of the manhole cover in
Burns because both involve the placement of a manhole cover. We disagree. In
Burns, the plaintiff tripped over a manhole cover protruding above the level of the
sidewalk and alleged that Upper Arlington negligently failed to align the manhole
cover with the sidewalk. That the protrusion was a manhole cover was, for the
most part, irrelevant, when the plaintiff was essentially alleging a failure to maintain
the sidewalk. * * * [T]he Burns court differentiated negligence relating to the
manhole cover itself * * * from negligence relating to the underlying portion of the
sewer supporting the manhole cover. In this case, it is reasonable to infer from [the
plaintiff’s] allegation that the city negligently ‘allowed the manhole cover to
become improperly anchored’ that he is alleging negligence with respect to the
city’s maintenance of the underlying support for the manhole cover.”
Id. at ¶16.
{¶ 21} In the earlier case of Martin v. Gahanna, Franklin App. No. 06AP-1175,
2007-Ohio-2651, the court determined that Burns did not apply when the plaintiff stepped into an
uncovered sewer drain. In Martin, the plaintiff filed a negligence complaint against the city and
alleged that the city negligently failed to cover and to inspect the sewer drain. The city requested
summary judgment and asserted that it was entitled to immunity under R.C. Chapter 2744. The
trial court denied the city’s request on the basis of statutory immunity.
JACKSON, 10CA18 10
{¶ 22} On appeal, the city argued that the absence of the sewer grate resulted from a recent
theft, and was therefore not the result of a maintenance or repair issue. The city asserted that
because the absence of the sewer grate did not result from lack of maintenance or repair, “by
default,” it resulted from the “provision or nonprovision, planning or design, construction, or
reconstruction of * * * a sewer system” which is a governmental function under R.C.
2744.01(C)(2)(l) such that it is entitled to immunity. The court agreed with the plaintiff that the
city’s failure to cover the sewer drain constituted a proprietary function. The court stated:
“We find that the need to inspect and replace missing components necessary
for the safe operation of the storm water system clearly falls within the definition of
maintenance or upkeep of a sewer system, and not the provision, design, or
reconstruction of a sewer system.”
Id. at ¶17. The court thus concluded that the city could be liable under R.C. 2744.02(B)(2).
{¶ 23} We believe that the case at bar is more analogous to Scott and Martin than to Burns.
Like the plaintiffs in Scott and Martin, appellee in the case at bar alleges not a failure to maintain
a sidewalk or other walkway, but instead, a failure to properly maintain part of an underground
water system – a water supply system, and in Scott and Martin, a sewer system. All three cases
involve plaintiffs who fell into a hole in the system due to a defect in a cover to those systems. In
Scott, the defect resulted from an improperly attached manhole cover. In Martin, the defect
resulted from the absence of a sewer grate. And, in the case sub judice, the defect results from the
absence of a water meter pit lid. The defect in the case at bar is not the result of a sidewalk
maintenance issue, as in Burns. Instead, the defect alleged in the case at bar is virtually
indistinguishable from the absence of the sewer grate in Martin. The absence of the sewer grate
caused the Martin plaintiff to fall. In the case at bar, the absence of the water meter pit lid caused
JACKSON, 10CA18 11
appellee to fall. Because we find no evidence to suggest that the water meter pit lid related in any
manner to the maintenance of a sidewalk, we reject appellant’s attempt to compare the instant case
to Burns. Instead, we conclude that the water meter pit lid, like a storm sewer grate, is a safety
feature of the underground system that is necessary for its safe operation, i.e., to protect the public
from falling into the holes that lead underground.
{¶ 24} Therefore, we disagree with appellant that the maintenance of the water meter lid is
a governmental function. Rather, the maintenance of the water meter lid is part of the
maintenance of the water supply system–a proprietary function for which appellant may be liable
under R.C. 2744.02(B)(2). Consequently, the trial court properly denied appellant’s summary
judgment motion.
{¶ 25} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s sole
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 Jackson 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.
JACKSON, 10CA18 12
Harsha, P.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/97022/ | 213 U.S. 360 (1909)
SAND FILTRATION CORPORATION OF AMERICA
v.
COWARDIN.
No. 123.
Supreme Court of United States.
Argued April 6, 1909.
Decided April 26, 1909.
APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
Mr. A.S. Worthington, with whom Mr. Charles L. Frailey was on the brief, for appellant.
Mr. Charles Cowles Tucker and Mr. Reginald S. Huidekoper, with whom Mr. J. Miller Kenyon was on the brief, for appellees May and Jekyll.
Mr. J.J. Darlington filed a brief in behalf of appellees Cowardin, Bradley, Clay and Stagg.
MR. JUSTICE DAY delivered the opinion of the court.
This case presents a question as to the proper construction of a certain contract. It arises as follows: Cowardin, Bradley, Clay *361 & Company, hereinafter called the Cowardin Company, had a contract with the Government of the United States for the construction of a filtration plant in the city of Washington. In the partial performance of the contract they had expended about $1,300 in money and had contracted debts somewhat in excess of $14,000. Afterwards, on May 26, 1903, the Cowardin Company sublet the contract to the appellees May and Jekyll. By this contract May and Jekyll agreed to reimburse the Cowardin Company for their expenditures; to pay the liabilities incurred by them, and to complete the work for 90 per cent of the contract price, permitting the Cowardin Company to have 10 per cent thereof as its profit. And further, May and Jekyll agreed to lend the Cowardin Company $10,000, and to furnish $50,000 for the purchase of a plant for doing the work. On August 25, 1903, May and Jekyll made a new contract with the Cowardin Company, surrendering their subcontract, executed a bill of sale to the Cowardin Company of the plant by which the work was being done, and as to the debts which May and Jekyll had contracted the Cowardin Company agreed to assume the same, and to procure the assumption thereof by any one who might undertake to complete the contract. The plant, including that purchased with the $50,000, was to be transferred to the Cowardin Company, and all the property to be conveyed in trust to certain trustees to secure the payment of the debts of May and Jekyll. As to the $10,000 advanced by May and Jekyll under the contract of May 26, 1903, of which $8,000 remained unpaid, the following stipulation was made:
"Inasmuch as the parties of the second part [May and Jekyll] have heretofore advanced to the parties of the first part [Cowardin Company] the sum of $10,000 under the eighth paragraph of said contract of May 26, 1903, and there now remains due to the said parties hereto of the second part $8,000 thereof, $2,000 having been paid thereon, the parties of the first part hereby covenant and agree to repay the parties of the second part, or to their order, the said sum of $8,000 out of the net profits which may be realized by the parties of the first part *362 from the construction or erection of that portion of said filtration plant which they have contracted with the United States to construct or erect. The said $8,000, if the same shall not be sooner voluntarily paid by the parties of the first part to the parties of the second part shall be reserved and paid out of the 10% of the contract price for said work which will be reserved by the United States; and if the parties of the first part shall not themselves continue said work under their contract with the United States, but shall procure some third party or parties to perform the same, or if the same shall be performed by any person or persons on behalf of the parties hereto of the first part appropriate provision shall be made for the reservation and payment of said $8,000 to the parties hereto of the second part; it being distinctly understood and hereby declared to be the purpose of this agreement that the repayment of the $8,000 shall be under the contingency that the parties of the first part shall realize a profit under said contract with the United States, and not otherwise; and that if any profit shall be so realized by them, it shall be subject to the payment of the said $8,000, or so much thereof as said profit will pay and satisfy."
On the same day, August 25, 1903, the Cowardin Company made a contract with one Dean, whereby, in consideration of the sale to Dean and Shibley, afterwards the Sand Filtration Corporation of America, appellant in this case, of the filtration plant and of the employment of appellant by a receiver to be appointed, to complete the work, Dean agreed to pay to the receiver $65,000 in instalments; to complete the work, and further "to comply with the provisions and conditions of one certain agreement entered into between the grantors (Cowardin Company) and May and Jekyll, a copy of which is hereto attached and to be read as a part thereof, including, among other provisions, the payment of the sum of $8,000 to the said May and Jekyll, as in the said agreement is provided, and the payment of which is also assumed by the said grantee (Dean)."
As under the law the Cowardin Company could not assign the contract with the Government, and as the company was in *363 financial difficulties, it was agreed that the receiver to be appointed for the Cowardin Company should enter into a contract with the Sand Filtration Corporation, successor of Dean, for the carrying out of the provisions of the contract of August 25, 1903, with the Cowardin Company. A receiver was appointed and a contract made, and on August 27th a further contract was entered into, whereby it was agreed that the receiver was to deduct from the money to be paid by the Government, as the work progressed, the sum of $65,000, and also the sum of $8,000 therein mentioned, and to pay the same directly to the Cowardin Company instead of paying it to Dean, and then receiving it back from him.
The Sand Filtration Corporation of America, successor to Dean, completed the work, and, as the record shows, at a loss of $100,000 or more. Pleadings were framed and issues made up, presenting to the court the question whether the receiver should be ordered to pay the sum of $8,000 to the Sand Filtration Corporation of America, appellant, or to May and Jekyll, under the contracts hereinbefore set forth. Upon hearing in the Supreme Court of the District of Columbia the court directed that this sum be paid by the receiver to May and Jekyll. From this decree the Sand Filtration Corporation of America appealed to the Court of Appeals of the District of Columbia, and that court affirmed the decree of the Supreme Court of the District. 29 App. D.C. 571. The case was then appealed here.
As we have said, the single question in this case is whether, under the facts recited, this $8,000 should go to the appellant as successor to Dean, or to May and Jekyll, as the courts below have held. It is insisted for appellant that the proper construction of the contract required payment of the $8,000 to May and Jekyll only upon the contingency that a profit should be realized under the construction contract with the United States, that is to say, if the construction of the filtration plant proved to be a profitable job then May and Jekyll were to be paid $8,000, or so much thereof as the profits would pay. The record discloses that appellant, successor of Dean, not only *364 made no profits, but on the contrary lost a large sum of money.
Upon the pleadings and testimony the lower courts have found, and we accept the finding in the absence of a clear showing of its incorrectness, that, without doing the work, the Cowardin Company has made out of the contract a sum in excess of $8,000 paid from the sums coming from the United States on account of the contract, in manner aforesaid.
The object of construction is to effectuate the intention of the parties in making a given contract. When the contract is in writing the language used should be interpreted in the light of the circumstances surrounding the parties at the time the contract was made. It is contended by the learned counsel for the appellant that the agreements of August 25, 1903, were cotemporaneous, and must be construed together as one agreement, and that the effect of such construction is to require the payment of $8,000 to May and Jekyll only in the event that the contract should prove profitable, and as no profit was realized from the construction nothing is to be paid. But while these contracts were dated the same day, whether they were executed at the same time or not does not appear, and certainly Dean was not in privity with May and Jekyll. The $8,000 was to be paid out of moneys reserved coming from the Government, and upon the contingency that a profit should be realized by the Cowardin Company. There was no agreement that the payment of this sum should be upon the contingency that any sub-contractor, such as Dean and his successor, should make a profit out of the contract. If such was the intention of the parties it is not so written in the contract. May and Jekyll were to have the money advanced by them repaid if "the party of the first part," the Cowardin Company, "shall realize a profit, under said contract." It is clear that the Cowardin Company did make a profit, and we are unable to see that it makes any difference that it was realized in the manner we have detailed, rather than from the construction of the work. The substance of the agreement between the Cowardin Company and May *365 and Jekyll looked to the repayment of the money advanced in case the Cowardin Company realized a profit. This it has done, and we think the conditions of the contract have been kept.
It is suggested by the learned counsel for the plaintiff in error that as the profit of $65,000 was realized by the Cowardin Company by the agreements of August 25, 1903, and as they were contemporaneous, the agreement for payment of the $8,000 only in the contingency of profit cannot mean the $65,000 so realized by the execution of the papers, but had reference to future profits in doing the work.
But it is to be noted that the Cowardin Company was the only party contracting with the United States, and had Dean thrown up the contract or failed to complete the construction of the work the Cowardin Company would still have been held on their contract and bond. Until Dean or his successor completed the work the Cowardin Company was not absolved from liability so far as the Government was concerned, and it could not be known whether a profit would be made or not.
As the Cowardin Company did realize such profit as required the payment of the $8,000 to May and Jekyll by the receiver out of the sums received from the Government, the courts below were right in so ordering.
The judgment of the Court of Appeals of the District of Columbia is affirmed.
Affirmed.
Dissenting: MR. JUSTICE McKENNA and MR. JUSTICE MOODY. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/97026/ | 213 U.S. 453 (1909)
MANSON
v.
WILLIAMS, TRUSTEE IN BANKRUPTCY OF HUDSON CLOTHING COMPANY.
No. 169.
Supreme Court of United States.
Argued April 20, 21, 1909.
Decided May 3, 1909.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT.
Mr. John W. Manson, with whom Mr. Harry R. Coolidge was on the brief, for appellants.
*454 Mr. John S. Williams, with whom Mr. Albert S. Woodman was on the brief, for appellee.
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a petition by the appellee, the trustee in bankruptcy of the Hudson Clothing Company, that the appellants, the trustees in bankruptcy of Henry Hudson, pay over to the appellee the proceeds of a stock of goods alleged to have belonged to the company. The referee in bankruptcy made an order as prayed, which was sustained on the principal matter by the District Court, 148 Fed. Rep. 305; and the decree of that court was affirmed by the Circuit Court of Appeals. 153 Fed. Rep. 525; S.C., 82 C.C.A. 475. A further appeal has been taken to this court. Hewit v. Berlin Machine Works, 194 U.S. 296.
The facts to be gathered from the opinion of the Circuit Court of Appeals and admitted are these. Henry Hudson became the owner of a stock of goods and desired to sell them. He also wished to help his brother James, and therefore put him in to do the selling. In the beginning he contemplated forming a corporation, turning the goods over to it and taking most of the stock as security, but letting James take the profits. This plan, however, was allowed to slumber, and the business was carried on by James for over two years. From an early moment James adopted the name of Hudson Clothing Company, using it as a sign, and in advertisements and on bill-heads. This was known to Henry, and when he advanced money to the business, as he did, he charged it on his books to the company. The bank account was kept with James, the bank book having the name Hudson Clothing Company above. Some of the exhibits in evidence have, besides the name of the company, the words "Henry Hudson, Pres.," and "James Hudson, Treas. and Mgr." There was no act of transfer on the part of Henry, but when he took goods from the shop he paid for them in the same way as if he had bought *455 them elsewhere. Both the District Court and the Circuit Court of Appeals have found as a fact that the brothers were partners, and that the goods belonged to the firm. In such cases this court as a rule will not disturb the findings, but it has done so in some instances, Darlington v. Turner, 202 U.S. 195, 220, and in the case at bar the appellants contend that there really was no evidence to justify the result reached.
The appellee says that the question is concluded by the adjudication putting the company into bankruptcy, that being an adjudication against the two brothers. On the other hand, the record shows that the trustees of Henry, although they had filed a denial and answer, were not heard on that question. The principle of law is plain. The adjudication put the two brothers into bankruptcy for the purpose of administering whatever property there might be, as against all the world. But it did not establish the facts upon which it was founded, no matter how necessary the connection, except as against parties entitled to be heard. Tilt v. Kelsey, 207 U.S. 43, 52. If the trustees of Henry were not entitled to be heard, it is because they had no concern with whether the alleged firm was wound up in bankruptcy or not, but only with the facts upon which creditors sought to wind it up, that is to say, the existence of the partnership and the title to the partnership assets, and these facts would remain open to dispute. As the trustees of Henry were not heard, it would come with bad grace from one who might have urged the foregoing considerations, to argue here that they are bound to admit anything except that Henry and his brother are in bankruptcy as partners. Furthermore, we gather from the opinion of the District Judge that all parties requested him to examine the evidence, and that the defense of res judicata really was waived. But as the partnership might have been a partnership in profits only, leaving the title to the capital in Henry alone, the adjudication, even if it established that there had been a partnership, could not conclude anything as to the title to the assets, the matter with which we now are concerned.
*456 We come back then to the question whether the findings of the two courts below are so clearly unwarranted as to call upon us to reconsider the evidence and to reverse the decree. In the first place we may lay on one side the fact that the parties began with the intent to form a corporation. They did not understand that they were acting as a corporation, nor did their dealings so far purport to be dealings of a corporation as to preclude the finding that was made. Now suppose that we take nothing more than the facts that one man furnishes capital and another his personal service in disposing of it, and that the latter is admitted to be interested in the profits if any, and at the same time not to be a debtor of the former. We have a right to infer that if a man furnishes capital he expects some gain from it. But as, in the case supposed, he is not a creditor and will not get interest, his gain must come from profits of the business. Some kind of joint interest therefore may be inferred, and the Circuit Court of Appeals would have had some warrant from these facts alone for concluding that Henry would have had a right to share the profits equally with James.
We are aware that there is evidence looking the other way, but that is not the question. On the other hand, the inference is strengthened by the facts that we have mentioned. Henry Hudson knew the name under which the business was done, and is likely to have known that his name sometimes was exhibited as president. It is true that the terms suggest a corporation, but under our usages not necessarily, and he at least knew that there was no corporation. He paid for the goods he bought, as if other interests were concerned. We mention these facts as admissions by conduct. Apart from the findings of the two courts it is unlikely that if great profits had been realized he would not have demanded a share. As to James, not only is it admitted that he was interested in profits, but there is some evidence that he contributed to the assets, as we shall explain.
If we take it as established that both brothers were interested *457 in the business, it is not a difficult step to infer that the capital of the business was firm capital. Whether capital shall be attributed to the firm or to a partner is a matter that often escapes the attention of the members. For if there is a joint liability for debts it does not matter very much to the party furnishing the capital whether he owns it or whether he charges it to the firm. In a case where two partners contributed capital and two partners contributed time it was held that the capital belonged to the firm and that those who contributed time were bound to make good their proportion of the loss. Whitcomb v. Converse, 119 Massachusetts, 38. Moreover, when James went into the business a thousand dollars belonging to him were deposited in his name undistinguished from the deposits on the business account. The money or a part of it was used to pay liabilities of Henry in connection with the stock in trade. It is true that ultimately more than that sum was used in paying James's outstanding debts, but the mingling of funds tends to show a common interest. The facts that we have mentioned seem to us to constitute some evidence that the relation between the brothers was a partnership by implied understanding until a corporation should be formed. It does not matter that it was not formally recognized or that they may not have used the name to themselves if that is the fair result of what they did understand and intend. We do not say that we necessarily should have come to this conclusion if the case had been tried before us in the first instance, but upon a pure question of fact the error, if there was one, is not so plain as to call upon us to depart from our usual rule.
Decree affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/97036/ | 214 U.S. 91 (1909)
WELCH
v.
SWASEY ET AL., AS THE BOARD OF APPEAL FROM THE BUILDING COMMISSIONER OF THE CITY OF BOSTON.
No. 153.
Supreme Court of United States.
Argued April 15, 16, 1909.
Decided May 17, 1909.
ERROR TO THE SUPREME JUDICIAL COURT OF THE STATE OF MASSACHUSETTS.
*95 Mr. Burton Edward Eames, with whom Mr. Charles H. *96 Tyler and Mr. Owen D. Young were on the brief, for plaintiff in error.
*101 Mr. Thomas M. Babson for defendant in error.
*103 MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.
The ground of objection of plaintiff in error to this legislation is that the statutes unduly and unreasonably infringe upon his constitutional rights, (a) As to taking of property without compensation; (b) As to denial of equal protection of the laws.
Plaintiff in error refers to the existence of a general law in Massachusetts applicable to every city therein, limiting the height of all buildings to one hundred and twenty-five feet above the grade of the street (acts of 1891, ch. 355), and states that he does not attack the validity of that act in any respect, but concedes that it is constitutional and valid. See also on same subject acts of 1892, ch. 419, § 25, making such limitation as to the City of Boston. His objection is directed to the particular statutes, because they provide for a much lower limit in certain parts of the City of Boston, to be designated by a commission, and because a general restriction of height as low as eighty or one hundred feet over any substantial portion of the city is, as he contends, an unreasonable infringement upon his rights of property; also that the application of those limits to districts B, which comprise the greater part of the City of Boston, leaving the general one hundred and twenty-five feet limit in force in those portions of the city, which *104 the commission should designate (being the commercial districts), is an unreasonable and arbitrary denial of equal rights to the plaintiff in error and others in like situation.
Stating his objections more in detail, the plaintiff in error contends that the purposes of the acts are not such as justify the exercise of what is termed the police power, because, in fact, their real purpose was of an aesthetic nature, designed purely to preserve architectural symmetry and regular sky-lines, and that such power cannot be exercised for such a purpose. It is further objected that the infringement upon property rights by these acts is unreasonable and disproportioned to any public necessity, and also that the distinction between one hundred and twenty-five feet for the height of buildings in the commercial districts described in the acts, and eighty to one hundred feet in certain other or so-called residential districts, is wholly unjustifiable and arbitrary, having no well-founded reason for such distinction, and is without the least reference to the public safety, as from fire, and inefficient as means to any appropriate end to be attained by such laws.
In relation to these objections the counsel for the plaintiff in error, in presenting his case at bar, made a very clear and able argument.
Under the concession of counsel, that the law limiting the height of buildings to one hundred and twenty-five feet is valid, we have to deal only with the question of the validity of the provisions stated in these statutes and in the conditions provided for by the commissions, limiting the height in districts B between eighty and one hundred feet.
We do not understand that the plaintiff in error makes the objection of illegality arising from an alleged delegation of legislative power to the commissions provided for by the statutes. At all events, it does not raise a Federal question. The state court holds that kind of legislation to be valid under the state constitution and this court will follow its determination upon that question.
We come, then, to an examination of the question whether *105 these statutes with reference to limitations on height between eighty and one hundred feet and in no case greater than one hundred feet are valid. There is here a discrimination or classification between sections of the city, one of which, the business or commercial part, has a limitation of one hundred and twenty-five feet, and the other, used for residential purposes, has a permitted height of buildings from eighty to one hundred feet.
The statutes have been passed under the exercise of so-called police power, and they must have some fair tendency to accomplish, or aid in the accomplishment of some purpose, for which the legislature may use the power. If the statutes are not of that kind, then their passage cannot be justified under that power. These principles have been so frequently decided as not to require the citation of many authorities. If the means employed, pursuant to the statute, have no real, substantial relation to a public object which government can accomplish; if the statutes are arbitrary and unreasonable and beyond the necessities of the case; the courts will declare their invalidity. The following are a few of the many cases upon this subject: Mugler v. Kansas, 123 U.S. 623, 661; Minnesota v. Barber, 136 U.S. 313, 320; Jacobson v. Massachusetts, 197 U.S. 11, 28; Lochner v. New York, 198 U.S. 45, 57; Chicago Railway Company v. Drainage Commissioners, 200 U.S. 561, 593.
In passing upon questions of this character as to the validity and reasonableness of a discrimination or classification in relation to limitations as to height of buildings in a large city, the matter of locality assumes an important aspect. The particular circumstances prevailing at the place or in the State where the law is to become operative; whether the statute is really adapted, regard being had to all the different and material facts, to bring about the results desired from its passage; whether it is well calculated to promote the general and public welfare, are all matters which the state court is familiar with, but a like familiarity cannot be ascribed to this court, assuming *106 judicial notice may be taken of what is or ought to be generally known. For such reason this court, in cases of this kind, feels the greatest reluctance in interfering with the well-considered judgments of the courts of a State whose people are to be affected by the operation of the law. The highest court of the State in which statutes of the kind under consideration are passed is more familiar with the particular causes which led to their passage (although they may be of a public nature) and with the general situation surrounding the subject-matter of the legislation than this court can possibly be. We do not, of course, intend to say that under such circumstances the judgment of the state court upon the question will be regarded as conclusive, but simply that it is entitled to the very greatest respect, and will only be interfered with, in cases of this kind, where the decision is, in our judgment, plainly wrong. In this case the Supreme Judicial Court of the State holds the legislation valid, and that there is a fair reason for the discrimination between the height of buildings in the residential as compared with the commercial districts. That court has also held that regulations in regard to the height of buildings, and in regard to their mode of construction in cities, made by legislative enactments for the safety, comfort or convenience of the people and for the benefit of property owners generally, are valid. Attorney-General v. Williams, 174 Massachusetts, 476. We concur in that view, assuming, of course, that the height and conditions provided for can be plainly seen to be not unreasonable or inappropriate.
In relation to the discrimination or classification made between the commercial and the residential portion of the city, the state court holds in this case that there is reasonable ground therefor, in the very great value of the land and the demand for space in those parts of Boston where a greater number of buildings are used for the purposes of business or commercially than where the buildings are situated in the residential portion of the city, and where no such reasons exist for high buildings. While so deciding the court cited, with *107 approval, Commonwealth v. Boston Advertising Company, 188 Massachusetts, 348, which holds that the police power cannot be exercised for a merely aesthetic purpose. The court distinguishes between the two cases and sustains the present statutes. As to the condition adopted by the commission for permitting the erection, in either of the districts B, that is, the residential portion, of buildings of over eighty feet, but never more than one hundred, that the width on each and every public street on which the building stands shall be at least one-half its height, the court refuses to hold that such condition was entirely for aesthetic reasons. The Chief Justice said: "We conceive that the safety of adjoining buildings, in view of the risk of the falling of walls after a fire, may have entered into the purpose of the commissioners. We are of opinion that the statutes and orders of the commissioners are constitutional."
We are not prepared to hold that this limitation of eighty to one hundred feet, while in fact a discrimination or classification, is so unreasonable that it deprives the owner of the property of its profitable use without justification, and that he is therefore entitled under the Constitution to compensation for such invasion of his rights. The discrimination thus made is, as we think, reasonable, and is justified by the police power.
It might well be supposed that taller buildings in the commercial section of the city might be less dangerous in case of fire than in the residential portion. This court is not familiar with the actual facts, but it may be that in this limited commercial area the high buildings are generally of fireproof construction; that the fire engines are more numerous and much closer together than in the residential portion, and that an unlimited supply of salt water can be more readily introduced from the harbor into the pipes, and that few women or children are found there in the daytime and very few people sleep there at night. And there may in the residential part be more wooden buildings, the fire apparatus may be more widely scattered and so situated that it would be more difficult to obtain the necessary amount of water, as the residence quarters *108 are more remote from the water front, and that many women and children spend the day in that section, and the opinion is not strained that an undiscovered fire at night might cause great loss of life in a very high apartment house in that district. These are matters which it must be presumed were known by the legislature, and whether or not such were the facts was a question, among others, for the legislature to determine. They are asserted as facts in the brief of the counsel for the City of Boston. If they are, it would seem that ample justification is therein found for the passage of the statutes, and that the plaintiff in error is not entitled to compensation for the reasonable interference with his property rights by the statutes. That in addition to these sufficient facts, considerations of an aesthetic nature also entered into the reasons for their passage, would not invalidate them. Under these circumstances there is no unreasonable interference with the rights of property of the plaintiff in error, nor do the statutes deprive him of the equal protection of the laws. The reasons contained in the opinion of the state court are in our view sufficient to justify their enactment. The judgment is therefore
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/97049/ | 214 U.S. 196
29 S.Ct. 635
53 L.Ed. 965
W. O. ROGERS, JR., ELLEN G. M. Rogers, John B. Martin, et al., Plffs. in Err.,v.JOSEPH T. JONES, the County of Harrison, et al.
No. 196.
Submitted April 27, 1909.
Decided May 24, 1909.
This was a bill in equity brought by Rogers and others, plaintiffs in error, November 11, 1903, in the chancery court for Harrison county, Mississippi, to remove certain alleged clouds from the title to lands situated in that county, and to be put in possession of said lands, against J. T. Jones, Harrison county, and the persons constituting the board of supervisors of the county, as individuals and as composing that board.
Defendants demurred, and the demurrer was overruled by the chancellor. An appeal was taken from this decree to the supreme court of Mississippi, where the decree of the lower court was reversed and the cause remanded. Jones v. Rogers, 85 Miss. 802, 38 So. 742. Thereupon plaintiffs in error filed an amended bill. To the amended bill Jones and the county severally filed demurrers and also answers denying certain allegations of fraud. On hearing, the chancellor sustained the demurrers, and plaintiffs in error refusing to amend or plead further, the amended bill was dismissed December 23, 1905. From this decree plaintiffs in error appealed to the state supreme court, where it was affirmed October 22, 1906, and from this judgment plaintiffs in error have prosecuted the pending writ of error.
The material averments of the amended bill were that plaintiffs in error claimed title to certain lands described in the bill, by virtue of a purchase of said lands by 'their ancestor,' John Martin, at a sale of said lands on October 28, 1839, made by the United States marshal under an execution on a judgment of the United States circuit court for the southern district of Mississippi, against one James McLaren.
That plaintiffs in error are the 'legal desecendants and sole surviving heirs at law of John Martin, deceased, who died intestate in the city of New Orleans and state of Louisiana, during the year 1848.' That Martin, at the time of his death, was seised and possessed of, in fee simple, in addition to other lands, certain described lands or parcels of land, which include the lands in controversy, situated in the town of Gulfport, county of Harrison (Hancock county at the time of the sale), and state of Mississippi. That plaintiffs in error are tenants in common, and all derived their title 'from their common ancestor, John Martin, by descent.' That James McLaren acquired said lands by sales from the United States government, dated December 11, 1834, and a patent dated January 5, 1841.
That, at the sale of the land under an execution on the judgment against McLaren, Martin became the highest and best bidder at and for the sum of $760, and the same was knocked off to him by the United States marshal, and the purchase money was then and there paid by Martin to the marshal, and he was then and there put into possession, and so remained until his death, in the year 1848.
The amended bill further averred that the land was in Harrison county, Mississippi, and that John Martin never sold nor made any disposition of any kind of the lands; that plaintiffs in error have been all the while in constructive possession of the lands since the death of John Martin, in 1848, and that no person or persons ever went into actual possession of the lands until the county of Harrison or the board of supervisors thereof took possession under deed of June 4, 1902, from J. T. Jones.
The bill alleged upon belief that, at the sale, a deed to the lands was made by the marshal to John Martin, and, in this connection, the bill further alleged that another sale of lands was made on the same execution, and the deeds were made by the marshal to the purchasers at said sale.
That McLaren died intestate, leaving no heirs at law, either lineal or collateral, and that the lands never escheated to the state of Mississippi.
The bill further alleged that, while plaintiffs in error were minors, the administrator of McLaren procured a certified copy of the judgment and execution and proceedings of the sale, and, with the purpose of depriving plaintiffs in error of their legal right and title to the lands, organized a company to take charge of the lands, concealing the facts of the said sale. That the company kept the facts of the real ownership from the plaintiffs in error, and sold some of the lands without knowledge of their legal rights to said property until the last four or five years. That as soon as the fact of the purchase and ownership of the lands by John Martin was made known to them, plaintiffs in error at once began to take the necessary legal steps to begin suit to establish the claim.
The bill also alleged that defendants in error had full notice of the claim to the title of plaintiffs in error, but they accepted the gift of the land in controversy from J. T. Jones, and had full knowledge of the fraud that had been practised upon them from its beginning to the present time. That on June 4, 1902, Jones conveyed by deed the land in Gulfport, as a gift, to the board of supervisors of Harrison county, with the condition that, should the county of Harrison at any time cease to use the lands for the courthouse, they should revert to Jones.
The bill further stated that if the supreme court of Mississippi should decide against the validity of the marshal's sale under the judgment and execution, plaintiffs in error 'claim the right and benefit of an appeal from the final decree to the Supreme Court of the United States.'
The original bill had averred, 'par parenthesis, that they are claiming their rights and title to this property under a marshal's sale made under and by virtue of the laws and Constitution of the United States of America, and they now and here desire to lay the proper predicate, so that they may have these proceedings in this case revised and reviewed by the Supreme Court of the United States, in case the decision of the supreme court of the state of Mississippi is adverse to their lawful, just, and bona fide claim, having derived the same from the patentee of these lands.'
The answers of the supervisors and of Jones denied notice or knowledge of any fraud on complainants, and, having answered the bill for the purposes of that denial, prayed the judgment of the court on the demurrers.
Messrs. Frank Johnston A. G. Harper for plaintiffs in error.
[Argument of Counsel from pages 199-201 intentionally omitted]
Messrs. James H. Neville and Walter A. White for defendants in error.
Statement by Mr. Chief Justice Fuller:
[Argument of Counsel from pages 201-203 intentionally omitted]
Mr. Chief Justice Fuller delivered the opinion of the court:
1
In entering the decree of December 23, 1905, the chancellor manifestly proceeded on the decision of the supreme court of Mississippi, reported 85 Miss. 802, 38 So. 742, as did the supreme court in affirming, October 22, 1906, the chancellor's decree. To this decree the pending writ of error was allowed and issued September 18, 1907.
2
The contention is that, in determining the rights of plaintiffs in error, the Mississippi supreme court put a wrong construction upon the special act of Congress of February 16, 1839, [5 Stat. at L. 317, chap. 27], referring to the time and place for the making of judicial sales in Mississippi, in that it held that the marshal's sale relied on as the foundation of title was made at the wrong place. But the supreme court made other and decisive rulings, as well as that in reference to the place of the alleged sale.
3
In the first place, that court held that the alleged return on the writ of fieri facias did not describe the lands in controversy, and therefore could not confer title, even though regular and valid. The act of Congress of February 16, 1839, did not attempt to define what is and what is not a good and valid description of real estate, or to make any rule by which a purchaser at a marshal's sale could take possession of lands other than those specifically described in the process. The question of a sufficient description was a question of general law.
4
In the second place, the court held that, under the Mississippi statute authorizing suits of the character then before the court, plaintiffs in error had not deraigned a title to the lands in controversy, which, under the Mississippi statute under which the suit was instituted, was a fatal objection to the bill.
5
In the third place, the court held that the claim of plaintiffs in error was barred by the Mississippi statute of limitations, in that it failed to show possession by the plaintiffs, or their ancestor, during the sixty-four years that intervened between the marshal's sale and the bringing of the suit, and did not, as required by the rules of practice in courts of equity in Mississippi, show that it was the defendants or those in privity with them who had fraudulently canceled from plaintiffs the evidence of their claim.
6
It is true that the supreme court of Mississippi in the subsequent case of Kennedy v. Sanders, 90 Miss. 524, 43 So. 913, decided May 20, 1907, overruled the ruling in Jones v. Rogers, applying the ten-year statute of limitations, and quoting what the court then observed in that regard, said that 'this announcement was not necessary to the decision in Jones v. Rogers, for the court had already held that the complainants in that case had deraigned no title.' And it will have been perceived that this writ of error runs to the judgment of the supreme court of October 22, 1906.
7
The result is, therefore, that this writ of error comes within the rule that where the disposition of a Federal question was not necessary to the determination of the cause, and the judgment is based on a distinct ground or grounds broad enough to sustain it, over which this court has no jurisdiction, the writ of error cannot be maintained.
8
Writ of error dismissed.
9
Mr. Justice White took no part in the consideration and disposition of this case. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/97050/ | 214 U.S. 205 (1909)
STATE OF WASHINGTON
v.
STATE OF OREGON.
No. 3, Original.
Supreme Court of United States.
Petition filed March 8, 1909.
Decided May 24, 1909.
ON PETITION FOR REHEARING.
*206 Mr. George Turner, Mr. E.C. Macdonald, Mr. W.P. Bell, Attorney General of the State of Washington, and Mr. S.H. Piles, for complainant, in support of the petition for rehearing.
Mr. A.M. Crawford, Attorney General of the State of Oregon, Mr. I.H. Van Winkle, Mr. Harrison Allen, Mr. C.W. Fulton and Mr. A.M. Smith, for defendant contra the petition for rehearing.
*214 MR. JUSTICE BREWER delivered the opinion of the court.
This case was decided on November 16, 1908, substantially in favor of the State of Oregon. 211 U.S. 127. On February 17 of this year a petition for rehearing was presented by the State of Washington. On examination of that petition we entered an order directing that the parties have leave to file briefs upon the questions. They have done so, and we have reexamined the case with great care.
There are practically two matters presented; one, whether the boundary near the mouth of the Columbia River was and is the channel north of Sand Island. We held that it was, and with that conclusion we are still satisfied. It is unnecessary to restate the reasons therefor. We may, however, refer to Missouri v. Kentucky, 11 Wall. 395, as much in point. That was a controversy between those two States as to the title of Wolf Island. The treaty between France, Spain and England in February, 1763, stipulated that the middle of the Mississippi should be the boundary between the British and French territories on the continent of North America. This was recognized by the treaty of peace with Great Britain in 1783, and different treaties since then. The boundaries of Missouri when she was admitted into the Union as a State in 1820 were fixed on this basis. Kentucky had succeeded in 1792 to the right and possession of Virginia, which, by virtue of the treaties referred to, extended to the middle of the bed of the Mississippi. The main channel of the Mississippi had been up to at least 1820 west of the island. There was testimony that since then it had changed to the east side. Nevertheless the court held that the island remained still a part of Kentucky, saying (p. 401):
"It follows, therefore, that if Wolf Island in 1763, or in 1820, or at any intermediate period between these dates, was east of this line, the jurisdiction of Kentucky rightfully attached to it. If the river has subsequently turned its course, and now runs east of the island, the status of the parties to this controversy is not altered by it, for the channel which the *215 river abandoned remains, as before, the boundary between the States and the island does not, in consequence of this action of the water, change its owner."
So whatever changes have come in the north channel, and although the volume of water and the depth of that channel have been constantly diminishing, yet, as all resulted from processes of accretion, or, perhaps, also of late years from the jetties constructed by Congress at the mouth of the river, the boundary is still that channel, the precise line of separation being the varying center of that channel. Jefferis v. East Omaha Land Co., 134 U.S. 178; Nebraska v. Iowa, 143 U.S. 359; Iowa v. Illinois, 147 U.S. 1; Missouri v. Nebraska, 196 U.S. 23; Louisiana v. Mississippi, 202 U.S. 1.
The other question arises in this way. The act admitting Oregon, after naming as the commencement of the boundary "a point due west and opposite the middle of the north ship channel of the Columbia River," adds "thence easterly, to and up the middle channel of said river, and, where it is divided by islands, up the middle of the widest channel thereof to a point near Fort Walla Walla." With reference to this we said: "The testimony fails to show anything calling for consideration in respect to the last clause in the quotation from the boundary of Oregon. The channel is not divided by islands." Now, it is alleged that there is set forth in the bill of complaint and admitted in the answer that a controversy has arisen as to the boundary lines, and that both of said States claim and assume to exercise jurisdiction over numerous islands and sands in said Columbia River, sixteen of which are enumerated by name.
While sixteen islands and sands are mentioned, yet in the brief filed by the plaintiff on the application for a rehearing it is stated that, outside of Sand Island, the title to which is, as shown in the former opinion settled by the decision of the first question, only two, Desdemona Sands and Snag Island, can be called islands, the remainder being entirely submerged and only visible at low tide. These two, therefore, are all that can come within the definition in the boundary.
*216 That speaks of "the middle channel of said river," and counsel contend that there is no pretense of three channels, and therefore the language should properly be construed as the middle of the main channel of said river, and we are inclined to think that that is the true construction. But it must be remembered that the boundary in the first instance passes around the north of Sand Island, in what was known as the north channel, and it does not strike any channel which deserves to be called the main channel until it has passed to the eastward of Sand Island. While the testimony is not satisfactory as to the point, at the time of the admission of the State of Oregon, at which this north channel, after passing Sand Island, touched any other channel, we are of the opinion that it must have been at a point east and north of Desdemona Sands. Of course, in considering this matter we assume that the contention of the State of Washington is correct, that Desdemona Sands could have then properly been termed an island.
With reference to Snag Island, the question is a difficult one. We agree with counsel that the term "widest channel" does not mean the broadest expanse of water. There must be in the first instance a channel that is, a flow of water deep enough to be used and in fact used by vessels in passing up and down the river; but it does not mean the deepest channel but simply the widest expanse of water which can reasonably be called a channel. Now, close to Snag Island there appear several channels, the principal ones being Woody Island channel and Cordell channel, both used at different times by vessels navigating the river. The Cordell channel runs to the north of Snag Island, the Woody channel to the south, while the boundary claimed by the State of Oregon runs in a channel far to the north of both Woody Island and Cordell channels.
Further, it appears that in December, 1877, the State of Oregon conveyed Snag Island, in consideration of the sum of $143.75, to J.W. and V. Cook. While of course this is not conclusive, yet taken in connection with the fact that the *217 State of Washington has never attempted to interfere with the jurisdiction of the State of Oregon over Snag Island, and the doubt that hangs about the position and depth and width of the various channels in the vicinity at the time of the admission of the State of Oregon, we hold that that island is within its territorial limits.
It must be borne in mind that an inquiry of this kind is attended with much difficulty. Here is a river of great width, three miles or so at certain places, whose bed is largely of sand, and whose channels have been naturally affected by the flow of the water, and also of late years by the jetties constructed by the Government in order to facilitate navigation. Congress, evidently recognizing the difficulty which attended the location of the exact boundaries, provided that the States of Washington and Oregon should have concurrent "jurisdiction in civil and criminal cases upon the Columbia River." Yet this provision does not determine the boundaries between the two States, and has proved insufficient to settle the disputes between them as to things done upon the Columbia River. Nielsen v. Oregon, 212 U.S. 315.
We may be pardoned if, in closing this opinion, we refer to the following:
"Joint Resolution To enable the States of Mississippi and Arkansas to agree upon a boundary line and to determine the jurisdiction of crimes committed on the Mississippi River and adjacent territory.
`Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the consent of the Congress of the United States is hereby given to the States of Mississippi and Arkansas to enter into such agreement or compact as they may deem desirable or necessary, not in conflict with the Constitution of the United States, or any law thereof, to fix the boundary line between said States, where the Mississippi River now, or formerly, formed the said boundary line and to cede respectively each to the other such *218 tracts or parcels of the territory of each State as may have become separated from the main body thereof by changes in the course or channel of the Mississippi River and also to adjudge and settle the jurisdiction to be exercised by said States, respectively, over offenses arising out of the violation of the laws of said States upon the waters of the Mississippi River.
"Approved January 26, 1909."
Similar ones have passed Congress in reference to the boundaries between Mississippi and Louisiana and Tennessee and Arkansas. We submit to the States of Washington and Oregon whether it will not be wise for them to pursue the same course, and, with the consent of Congress, through the aid of commissioners, adjust, as far as possible, the present appropriate boundaries between the two States and their respective jurisdiction.
The petition for rehearing is
Denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/97052/ | 214 U.S. 224 (1909)
CABRERA
v.
AMERICAN COLONIAL BANK.
No. 136.
Supreme Court of United States.
Submitted April 7, 1909.
Decided May 24, 1909.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR PORTO RICO.
*229 Mr. Francis H. Dexter for appellants.
Mr. N.B.K. Pettingill for appellee.
MR. JUSTICE McKENNA, after making the foregoing statement, delivered the opinion of the court.
Appellants, to sustain their contention that the bill of sale *230 was an absolute conveyance and accomplished payment of the debts to the bank, quote provisions of the Spanish Civil Code which, it is said, was in force in Porto Rico until 1902, which provides that the obligations of contracts must be complied with according to their terms, that their provisions when clear and explicit must control, and that there can be no evidence of the terms of the agreement other than the contents of the writing, unless "a mistake or imperfection of the writing is put in issue by the pleadings" or its "validity" is the fact in dispute.[1]
But these are also the principles of the common law, and absolutely necessary if the written instrument is to be given a distinctive sanction of the agreement of the parties. But there are well-recognized exceptions. The face of an instrument is not always conclusive of its purpose. In equity, extrinsic evidence is admitted to show that a conveyance absolute on its face was intended as security. The rule regards the circumstance of the parties and executes their real intention, and prevents either of the parties to the instrument committing a fraud on the other by claiming it as an absolute conveyance, notwithstanding it was given and accepted as security. In other words, the real transaction is permitted to be *231 proved. This court said in Peugh v. Davis, 96 U.S. 332, 336, and repeated it in Brick v. Brick, 98 U.S. 516: "As the equity upon which the court acts in such cases arises from the real character of the transaction, any evidence, written or oral, tending to show this is admissible." The rule which excludes parol testimony, the court further said, has reference to the language used by the parties and does not forbid an inquiry into their object in executing and receiving the instrument. Hughes v. Edwards, 9 Wheat. 489; Russell v. Southard, 12 How. 139; Babcock v. Wyman, 19 How. 289. In Morgan's Assignees v. Strum, the rule of equity was enforced against the bill of sale of a vessel, though it was enrolled and also insured in the name of the transferee. See Livingston v. Story, 11 Pet. 351.
It is not contended that the equitable rule is explicit in the Porto Rican code; but it is contended that the power to enforce the rule is given by § 34 of the act of Congress of April 12, 1900, which conferred upon District Courts of Porto Rico, "in addition to the ordinary jurisdiction of Districts Courts of the United States, jurisdiction of all cases cognizant in the Circuit Courts of the United States," and that they should "proceed therein in the same manner as a Circuit Court." The deduction from this is that the District Court, having the "ordinary jurisdiction" of both Circuit and District Courts, may "proceed in the consideration of any case within that jurisdiction on the same principles," depending on the nature of the case, as those courts may.
Appellee, however, says that it is not necessary to insist upon that proposition because the question presented is the "kind of evidence" which the court was entitled to receive and consider, and the case of Horton et al. v. Robert, 3 Castro's Decisiones de Puerto Rico, 410, 415, is adduced to sustain the decision of the District Court in admitting evidence to explain the bill of sale in controversy. The English translation of the decision, given by the appellee, is as follows:
"It seems that the defendant believes, and his whole contention *232 is based on this belief, that for a mortgage to be declared usurious the usury must appear from the document itself. Such an affirmation would convert the law of usury into a dead letter, and is directly in conflict with section 25 of the Law of Evidence of Porto Rico. The appellee also presumes that the object of a written contract cannot constitute the subject of investigation by a court, upon examining into its validity, but that the court must presume that it has been stated correctly in the contract itself. This presumption of the appellee is contrary to the second subdivision of section 101 of the Law of Evidence of Porto Rico and to the law established by the American courts. No matter what motive or consideration is expressed in a written contract, the truth of its provisions is not conclusively presumed, but the same can always be the subject of investigation before a court, and therefore proof can always be proposed and received in order to demonstrate what was the true motive or consideration of the obligation which may be established. See also paragraph 38 of section 102 of the Law of Evidence of Porto Rico."
The law of evidence referred to is inserted in the margin.[1a]
Horton v. Robert seems to interpret the code as permitting *233 the application of the equitable rule, and defines the word "consideration" in § 101 to comprehend the motive or purpose of the instrument. If there is any decision or statute which militates with this conclusion, we feel sure that appellants would have cited it. But we need not distinguish between motive and consideration. The testimony was addressed to the consideration of the bill of sale in its strictest sense. On the face of the instrument the bank engaged to give up its debt for the stock of goods. This then constituted the consideration as expressed, but the testimony explaining it showed that it was not the real consideration, that the real consideration was to keep Suarez & Co. a going concern, and to give the bank additional security. More than this it is not necessary to decide, and we shall not consider, therefore, the contention of appellee and the citations to support it, that the law of Spain "permits what our own does not the admission of oral *234 testimony regarding all the terms of a contract upon equal footing with the writing which evidences it."
It is, however, contended that, if it should be held that the bill of sale did not pay or discharge the debt, appellant Maria de las Nieves was (a) but a guarantor, and her liability must be determined as such. (b) The deed of sale was but a novation. (c) It constituted under all the circumstances a modification of the security and released her, the guarantor.
All these objections seem (we say seem, because the argument to support them is somewhat involved) to rest on the contention that the bill of sale was not taken as an additional security, and is, therefore, answered by what has been said. Whether she was a guarantor or not, that could not make a mortgage of her real estate any less effective or make the bill of sale something other than what it was. Joyce v. Auten, 179 U.S. 591.
It is next contended by appellants that the bank "acquired no specific right or interest in the inheritance or participations of appellant Maria de las Nieves Cabrera y Pruna, in the estate of her deceased mother," because, as it is further contended, "that her interest in the estate of her mother had not yet been divided or assigned." There was an allegation in the bill that such interest was covered by the mortgage, which was not denied. Besides, it does not appear that the point was made in the lower court, and counsel say here, after quoting some very general provisions of the Civil Code of Porto Rico, and articles 110 and 111 of the mortgage law, "As we more confidently rely upon the other points in this case, we do not enter into a discussion of the law bearing on this point." We leave the point where counsel has left it. We do not feel called upon to compare the provisions which he has cited with those cited by counsel for appellee, which, it is contended, have a contrary effect, and establish that an heir or devisee has an interest in the inheritance, before the division, which he may sell or mortgage.
It is enough to say that the provisions quoted by appellants *235 do not sustain their contention. They quote article 1874 of the Civil Code, in force at the time the mortgage was given, as confining a mortgage contract to real property and to rights in real estate which can be alienated according to law. There is no attempt to define such rights other than to quote article 108 of the mortgage law as follows:
"Article 108. The following are not mortgageable:
* * * * * * * *
"(5) The property right in things which, although they will be owned in the future, are not yet recorded in the name of the person who will have a right to own them."
But the interest of Maria de las Nieves in her mother's estate had accrued, and, because it was an undivided interest, did not make it a "property right" to be "owned in the future."
Articles 110 and 111 of the mortgage law are clearly not applicable. They only refer to what incidents of an estate the mortgage of it extends, as improvements, crops, rents, &c.
It is finally contended that if Maria de las Nieves is responsible at all it is only for a part of the debt. This contention is answered in effect by what we have already said. Whether as principal or surety, she bound herself to the bank for the whole debt mortgaged her property for the whole debt, and her liability extends to the whole debt.
Decree affirmed.
NOTES
[1] "Obligations arising from contracts have legal force between the contracting parties, and must be fulfilled in accordance with their stipulations." Article 1091.
"Contracts shall be binding, whatever may be the form in which they may have been executed, provided the essential conditions required for their validity exist." Article 1278.
"If the terms of a contract are clear and leave no doubt as to the intentions of the contracting parties, the literal sense of its stipulations shall be observed." Article 1281.
"Commercial contracts shall be executed and complied with in good faith according to the terms in which they were made and drafted, without evading the honest, proper and usual significance of the written or spoken words with arbitrary interpretations, nor limiting the effects which are naturally derived from the manner in which the contractors may have explained their wishes and contracted their obligations." Article 57, Code of Commerce, 1897, p. 24.
[1a] SEC. 25. When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing, except in the following cases:
1. Where a mistake or imperfection of the writing is put in issue by the pleadings;
2. Where the validity of the agreement is the fact in dispute.
But this section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in section twenty-eight, or to explain an intrinsic ambiguity, or to establish illegality or fraud. The term "agreement" includes deeds and wills, as well as contracts between parties.
SEC. 28. For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret.
"SEC. 101. The following presumptions, and no others, are deemed conclusive: . . .
"2. The truth of the facts recited, from the recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title; but this rule does not apply to the recital or a consideration. . . .
"SEC. 102. All other presumptions are satisfactory, if uncontradicted. They are denominated disputable presumptions and may be controverted by other evidence. The following are of that kind: . . .
"38. That there was a good and sufficient consideration for a written contract. . . .
"SEC. 107. No evidence shall be considered as conclusive or unanswerable, unless so declared by this act. Laws of Porto Rico, 1905, Pages 73, 74, 87, 88, 90."
In the same connection should be considered Article 1186 of the Civil Code of Porto Rico, which reads as follows:
"Public instruments are evidence even against a third person of the fact which gave rise to their execution and of the date of the latter.
"They shall also be evidence against the contracting parties and their legal representatives with regard to the declarations the former may have made therein." Revised Statutes and Codes of Porto Rico, 1902. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/97056/ | 214 U.S. 268 (1909)
TUPINO
v.
LA COMPANIA GENERAL DE TABACOS DE FILIPINAS.
No. 148.
Supreme Court of United States.
Argued April 14, 15, 1909.
Decided May 24, 1909.
ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.
*269 Mr. John C. Gittings, with whom Mr. William Steele Grey and Mr. Justin M. Chamberlain were on the brief, for plaintiffs in error.
Mr. Aldis B. Browne, with whom Mr. Alexander Britton, Mr. W.A. Kincaid and Mr. A.H. Blount were on the brief, for defendant in error.
MR. JUSTICE MOODY delivered the opinion of the court.
The defendant in error brought this action for the recovery of certain lands, in the Court of First Instance of the Philippine Islands, against eighty-four persons, who are now the plaintiffs in error. The prayer of the complaint was for restoration of possession, for damages and an injunction against further disturbance of the plaintiff's right. The Court of First Instance rendered judgment for the plaintiff, awarding the relief prayed for, and the judgment was affirmed by the Supreme Court of the Philippine Islands. The case is now here upon writ of error, accompanied by a large number of assignments of error. The defendant in error has moved to dismiss the writ for lack of jurisdiction of this court to entertain it, and that motion must first receive consideration.
The jurisdiction of this court is rested by the plaintiffs in error solely upon the ground that the value of the real estate in controversy exceeds the sum of $25,000. Section 10 of act approved July 1, 1902, part 1, 32 Stat. 691, 695. The disposition of the motion to dismiss turns upon the question whether, within the true meaning of the statute, land of the value of $25,000 was in controversy. In the solution of this question it is useful to examine the pleadings, the course of the trial and the judgment.
*270 The company alleged itself to be the owner of lands known as the Hacienda de San Luis y la Concepcion, having certain defined boundaries and an area of some four thousand hectareas. The complaint further alleged "that the defendants above named, for more than one and less than six years ago, illegally seized and continued to hold certain portions of the said property," having an "area of four hundred and forty-six hectareas, seventy-nine areas and four centiareas as to the fields, and four hectareas, approximately, as to the lots on which their houses and warehouses are built, distributed among distinct and separate parcels, but all within the perimeter of the said estate above described, and for a better understanding thereof the following statement is given of the parcels held by each one of the defendants." There then follows eighty-four separate descriptions of the separate holdings of each of the defendants. The case of Miguel Tupino is agreed upon by the parties as typical of the others, and the allegation with respect to him is, "Miguel Tupino has a lot of six areas with a dwelling and two warehouses thereon, and two fields, containing four hectareas and fifty areas and two hectareas and twenty-five areas, respectively." Then follows an allegation that "the plaintiff has been damaged in the sum of nine thousand Mexican pesos by reason of the unlawful detention above described," and the complaint closes with the prayer before stated.
Each of the defendants filed separate answers. The answer of Tupino may be taken as a type. In it he denies the title of the plaintiff and that it suffered the damages alleged; denies, specifically, that the plaintiff had a record title to the portion of the land described as possessed by him; denies that that portion of the land was situated within the boundaries of the Hacienda de San Luis y la Concepcion; denies that the plaintiff is the owner of the portion of the land described as possessed by the defendant or any part thereof, or that the plaintiff has ever been entitled to the possession thereof; denies that the plaintiff has any interest in the portion of the land *271 described as possessed by the defendant or ever has had any; denies that the defendant has unlawfully withheld from the plaintiff the portion of land described as possessed by the defendant.
In the opinion of the Judge of the Court of First Instance he describes the defense in part as being "That each and every one of them (the defendants) is the owner of the parcel of land occupied by him, because it has been cultivated and possessed by some of them for more than ten years and by all of them for more than one year."
After the Supreme Court of the Philippine Islands had rendered its judgment the defendants made a motion for a rehearing, in which they complained that the court had over-looked an assignment of error in assessing damages jointly against all the defendants, and said, in this connection, "inasmuch as each of said defendants is alleged by plaintiff, and found by the trial court, to be occupying a distinct and separate parcel of land, with no privity or community of interest with his codefendants, and each of said defendants has filed a separate answer for such distinct parcel and maintained a separate defense."
It is very clear, although the plaintiff claimed under a single title all the land occupied separately by the various defendants, that the action itself was not against the defendants as joint disseisors, but was an action against each of them separately as the holder of a distinct parcel or parcels of land. There was no allegation, in either the complaint or the answer, of joint ownership or joint possession or joint action of any kind. The proceeding, in effect, consisted of eighty-four separate and distinct actions against the eighty-four defendants. The complaint alleged that each defendant was in possession of a separate and distinct parcel of land described separately, however inadequately. The answer of each defendant, while denying in toto the title of the plaintiff, in other respects related solely to the tract of land alleged to be unlawfully held by that particular defendant. Undoubtedly, where a complaint alleges *272 a joint entry and ouster, and the answer takes issue, without setting up separate claims to distinct parcels by the several defendants, and the judgment for the recovery of possession is against all the defendants jointly, then the measure of appellate jurisdiction is the value of the whole land. Friend v. Wise, 111 U.S. 797. But where the pleadings show that there was no allegation of joint ownership or joint possession, and that the controversy with each defendant related to a separate and distinct lot of land, and the judgment is rendered separately against the defendants, then the measure of jurisdiction on appeal or writ of error is not the value of the whole land, but the value of each part separately. Tupper v. Wise, 110 U.S. 398, where it was said: "The rule is well settled that distinct judgments in favor of or against distinct parties, though in the same record, cannot be joined to give this court jurisdiction."
We think that the case at bar falls within the rule of Tupper v. Wise. It appears in point of fact that the value of the whole land, which the plaintiff sought to recover in separate parcels from the eighty-four defendants exceeds $25,000. But it also appears that the value of the land in controversy with any one of the defendants is far less than $25,000.
Stopping at this point, it would follow that the writ of error should be dismissed. But the form of the judgment in this case is peculiar and must receive consideration before the motion to dismiss is finally disposed of. The judgment of the Supreme Court of the Philippine Islands simply affirmed the judgment of the Court of First Instance. In that court, as there was no formal judgment, the terms of it must be gathered from the opinion of the Judge. The opinion concludes as follows:
"I decide; First, that the Compania General de Tabacos de Filipinas shall be restored by the sheriff or by any of his deputies, to the possession of the hacienda San Luis y la Concepcion by giving possession thereof to D. Miguel Macias y Toro, or any other person lawfully representing the said company. *273. . . Third, that both the present defendants as well as those declared in default, be required to immediately vacate the said hacienda or be evicted therefrom, together with their houses and warehouses. Fourth, that the preliminary injunction issued on the 15th of November last, and modified on the third inst., be regarded as perpetual from this date, and the injunction bond of $10,000 given is to be cancelled after the proper legal formalities. The tobacco in the hands of the receiver will be delivered to the Compania General, and the bond given by the receiver cancelled, after rendition by him of the accounts of his receivership. Fifth, and last, that the defendants present, and those in default, pay the costs and damages in the sum of nine thousand Mexican pesos; and finally, that the said defendants are enjoined absolutely from performing any act hereafter tending in the slightest degree to disturb the possession by the Compania General of the lands comprised within the hacienda of San Luis y la Concepcion. So ordered."
If this language is to be taken as expressing the judgment of the court, it certainly has some tendency to show that the judgment for the restoration of the lands was a joint one against all the defendants. But we are not inclined to scrutinize too strictly the language of a learned Judge trained in another system of jurisprudence than our own, and in view of the separate issues clearly made by the pleadings and the prayer of the complaint that the plaintiff be restored "to the possession of the various parcels of the said estate above indicated, after the eviction or expulsion therefrom of all the defendants, including the houses and warehouses which they have erected thereon," we construe this judgment to run separately against each defendant for that part of the land of which he was alleged and found to be in possession. It was so treated by the Judge of the Supreme Court of the Philippine Islands, in refusing to allow a writ of error. The judgment for damages appears to be, so far as we can see, a joint judgment against all the defendants. But even the whole amount *274 of the damages, 9,000 Mexican pesos, added to the value of the land in controversy with any of the defendants, does not make a sum exceeding $25,000. We think, therefore, that the writ of error must be dismissed.
It may not be improper to say that if we had jurisdiction on this writ of error we should find grave difficulty in sustaining the joint judgment for damages against all the defendants, if, indeed, we have properly construed it to be joint. But we have no such jurisdiction, and therefore refrain from deciding that point. Doubtless, if there is anything in it, some way may be found, by application to the Supreme Court of the Philippine Islands, to correct the error, if any exists.
Writ of error dismissed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/97088/ | 215 U.S. 50 (1909)
UNITED STATES
v.
UNION SUPPLY COMPANY.
No. 120.
Supreme Court of United States.
Argued October 13, 14, 1909.
Decided November 8, 1909.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY.
*51 The Solicitor General for plaintiff in error.
Mr. Isaac R. Hitt, Jr., for defendant in error.
*53 MR. JUSTICE HOLMES delivered the opinion of the court.
This is an indictment of a corporation for wilfully violating *54 the sixth section of the act of Congress of May 9, 1902, c. 784, § 6, 32 Stat. 193, 197. That section requires "wholesale dealers" in oleomargarine, etc., to keep certain books and to make certain returns. It then goes on as follows: "And any person who wilfully violates any of the provisions of this section shall, for each such offense, be fined not less than fifty dollars and not exceeding five hundred dollars, and imprisoned not less than thirty days nor more than six months." The corporation moved to quash the indictment and the District Court quashed it on the ground that the section is not applicable to corporations. Thereupon the United States brought this writ of error.
The argument for the defendant in error is drawn from an earlier decision by the same court. It is that § 5 applies in express terms to corporations, and gives the court discretionary power to punish by either fine or imprisonment, or both, whereas in § 6 both punishments are imposed in all cases and corporations are not mentioned; that it is impossible to imprison a corporation, and that the statute warrants no sentence that does not comply with its terms. United States v. Braun & Fitts, 158 Fed. Rep. 456. We are of opinion that this reasoning is unsound. In the first place, taking up the argument, drawn from § 5, that corporations were omitted intentionally from the requirements of § 6, it is to be noticed that the sixth section of the present act copies its requirements from the act of October 1, 1890, c. 1244, § 41, 26 Stat. 567, 621, which did not contain the penal clause. In its earlier form the enactment clearly applied to corporations, and when the same words were repeated in the later act it is not to be supposed that their meaning was changed. The words "wholesale dealers" are as apt to embrace corporations here as they are in § 2, requiring such dealers to pay certain taxes. We have no doubt that they were intended to embrace them. The words "any person" in the penal clause are as broad as "wholesale dealers" in the part prescribing the duties. U.S. Rev. Stat., § 1. It is impossible to believe that corporations were intentionally *55 excluded. They are as much within the mischief aimed at as private persons, and as capable of a "wilful" breach of the law. New York Central & Hudson River R.R. v. United States, 212 U.S. 481. If the defendant escapes, it does so on the single ground that as it cannot suffer both parts of the punishment it need not suffer one.
It seems to us that a reasonable interpretation of the words used does not lead to such a result. If we compare § 5, the application of one of the penalties rather than of both is made to depend not on the character of the defendant, but on the discretion of the judge; yet there corporations are mentioned in terms. See Hawke v. E. Hulton & Co. Limited, (1909) 2 K.B. 93, 98. And if we free our minds from the notion that criminal statutes must be construed by some artificial and conventional rule, the natural inference, when a statute prescribes two independent penalties, is that it means to inflict them so far as it can, and that if one of them is impossible, it does not mean on that account to let the defendant escape. See Commonwealth v. Pulaski County Agricultural & Mechanical Association, 92 Kentucky, 197, 201. In Hawke v. E. Hulton & Co. (1909), 2 K.B. 93, it was held that the words "any person" in one section of a penal act did not embrace a corporation notwithstanding a statute like our Rev. Stat., § 1. But that was not so much on the ground that imprisonment was contemplated as a punishment, as because the person convicted was to be "deemed a rogue and a vagabond." Moreover it was thought that corporations could be reached under another section of the act.
Judgment reversed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/97686/ | 225 U.S. 651 (1912)
PICKFORD
v.
TALBOTT.
No. 512.
Supreme Court of United States.
Argued April 29, 1912.
Decided June 7, 1912.
APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
*652 Mr. Henry E. Davis, with whom Mr. Samuel Maddox and Mr. H. Prescott Gatley were on the brief, for appellants.
Mr. John Ridout for appellee.
MR. JUSTICE PITNEY delivered the opinion of the court.
This was an equity action, brought by the appellants against the appellee and others, in the Supreme Court of the District of Columbia, to obtain an injunction restraining the enforcement of a judgment theretofore recovered by the appellee against the appellants in an action for libel. That action was on the law side of the Supreme Court of the District, and resulted in a verdict and judgment for $8,500 damages, which on review was affirmed by the Court of Appeals (28 App. D.C. 498) and by this court (211 U.S. 199).
The present action was commenced after the final affirmance of the judgment at law. Upon the filing of the bill of complaint herein, with accompanying exhibits, the court made a temporary restraining order. This was continued until the final hearing, and that hearing resulted in a decree granting a perpetual injunction against the enforcement of the judgment. The defendants in the equity action, other than the present appellee, were joined for reasons not now material. He alone appealed from the final decree to the Court of Appeals of the District, which reversed the decree and ordered the cause to be remanded to the court below, with direction to dismiss the bill of complaint (36 App. D.C. 289). From the decree of reversal Pickford and Walter have appealed to this court, thus presenting for our decision the question whether, upon the pleadings and proofs, they are entitled to an injunction restraining the enforcement of Talbott's judgment against them.
*653 The equitable jurisdiction is invoked upon the ground that after the conclusion of the litigation at law the appellants discovered certain evidence which, if known at the time, might and would have enabled them to make a different defense in the court of law, and which it is alleged would assuredly have led to a different result there; it being insisted that the appellants were not at fault in failing to discover the evidence referred to.
A brief history of the controversy between the parties is essential to an understanding of the questions presented.
In the month of March, 1901, while the appellee, Talbott, was State's attorney for Montgomery County, Maryland, an indictment was returned by the grand jury of that county charging Pickford and Walter, the appellants, and two others named in the indictment, with having unlawfully, wilfully and maliciously set fire to and burned a certain untenanted dwelling house, the property of said Pickford and Walter. A dwelling house owned by them, situate in Montgomery County, had in fact been destroyed by fire in the latter part of the year 1897, and the fire insurance companies, after some demur, had paid to the owners sums aggregating $22,500. It is said to have been the purpose of the indictment to attribute to the defendants named therein an attempt to defraud the insurance companies. Three of those defendants (including Walter, but not Pickford), being arrested in the District of Columbia, where they resided, sued out writs of habeas corpus in the District, and were released on the ground that the indictment did not set forth any crime. Pickford surrendered himself in Montgomery County and gave bail to answer the indictment, and his trial was set down for a day in the following November before the Circuit Court. He duly appeared, but Talbott, as State's attorney, asked for a postponement on the ground that he was not ready for trial. The court strongly intimated that there ought to be no postponement, and upon this intimation (and *654 perhaps partly because of the question that had been raised about the sufficiency of the indictment) Talbott entered a nolle prosequi as to Pickford. Later, he did the same with respect to Walter.
Thereafter, and in the month of December, 1901, Pickford and Walter procured to be published in the columns of a newspaper in Washington an article concerning Talbott which was the ground of his action against them for libel. A copy of the article was included in the declaration in that suit and was attached to and made a part of the bill of complaint herein. Through some inadvertence it was omitted in the printing of the record, but upon the argument we were, by consent of counsel, referred for information as to its contents to the record that was here on the former occasion (211 U.S. 199). The article purported to show "the true inwardness of the criminal scheme that culminated in this nefarious indictment," and declared that "we shall state the facts as we have learned them after a thorough investigation." It charged Talbott, as State's attorney, with participation in an alleged conspiracy to force Pickford and Walter, by means of an unfounded indictment, to repay to the insurance companies the moneys that had been paid by them to Pickford and Walter for the fire loss.
The libel suit was commenced in the year 1902. The final affirmance of the judgment therein was on November 30, 1908. The present action was begun in the following month of January.
The bill of complaint avers that at the time of the filing of the declaration in the libel suit the complainants believed it to be true (the ground of that belief is not distinctly averred) that Talbott had caused the indictment to be procured for the purpose of obtaining from the insurance companies certain large sums of money, and had thus used his public office for his personal gain; that they so informed their counsel before the filing of their pleas, *655 but were advised by counsel that should they attempt to justify the publication of the article by pleading the truth thereof, and fail to make good such plea by evidence to the satisfaction of the court and jury, the attempt at justification would be held to be a repetition and republication of the libel, and would aggravate the damages to be recovered in the action; that they were, on the other hand, advised by their counsel that if they should plead "not guilty" to the declaration they would probably be excluded from endeavoring to prove the truth of the alleged libel; and that the complainants, being unable, after due diligence, to procure and submit to their counsel evidence which in the opinion of counsel might properly and safely be offered on the trial of the action in justification of the alleged libel and in proof of the truth thereof, were compelled to confine, and did confine, their defense to the general issue, and were thereby deprived of the opportunity to offer evidence tending to prove its truth; but that upon the trial they were permitted to introduce, and did introduce (not in justification of the alleged libel nor to prove the truth thereof, but to show absence of malice on their part and thus to mitigate the damages), sundry matters and things which are set forth at great length in the bill, all of which, it is averred, were known to the complainants at and before the composition and publication of the libel.
So far as appears, the matters thus recited furnished the sole basis for their alleged belief that Talbott had prostituted his office in the manner alleged in the newspaper article. Without repeating them here, it is enough to say that it those matters did in fact constitute their whole case against Talbott, their counsel was probably correct in his judgment that a plea of justification, supported by such evidence alone, would be deemed a republication of the libel and a ground for allowing increased damages against them.
The bill of complaint further avers that before pleading *656 to the declaration the appellants and their counsel diligently inquired of every person believed to have any possible knowledge in the premises, with the view to obtaining and producing testimony tending to support a plea of justification and to prove the truth of the matter alleged as libelous, but without avail.
It also alleges that the like diligent inquiries were continued after the trial of the cause down to the filing of the bill, but wholly without result until the twenty-ninth day of December, 1908, when, in an accidental meeting between one of the counsel for the appellants and Hon. James B. Henderson, one of the judges of the Circuit Court for Montgomery County, who held that office at the time of the indictment referred to, Judge Henderson informed counsel of a conversation said to have taken place between him and Talbott while the indictment was pending, in which conversation Talbott stated to the judge in substance that he was keeping the indictment alive in order to assist the insurance companies in an effort to recover from Pickford and Walter the moneys that had been paid to them for the fire loss; and that he, Talbott, or his firm, would get a large fee out of the business.
The bill rests the prayer for relief against the judgment at law solely upon the ground that the evidence of Judge Henderson, taken in connection with the other matters and things that were given in evidence on the trial of the libel suit as mentioned, would have caused the jury to render a verdict in favor of the defendants, Pickford and Walter.
Talbott answered the bill, fully and specifically denying all allegations thereof that attributed improper conduct to him, and expressly denying the alleged conversation between him and Judge Henderson, and denying that he had kept the indictment alive for personal gain, and every other improper inference deducible from the alleged conversation. The answer called upon complainants to make *657 strict proof of the averments of the bill respecting the conferences between complainants and their counsel and respecting what was done by them about the preparation of their defense in the action at law, and denied that if the truth of the libelous matter had been pleaded and the evidence of Judge Henderson introduced the result of the trial would have been different; averring that if the pleadings had been such as to admit his testimony the door would have been opened for the admission of other evidence unfavorable to the complaints.
After the filing of this answer the complainants, by leave of the court, amended and supplemented their original bill of complaint by the addition of a considerable amount of new matter. Included in it is an averment that the indictment of Pickford and Walter, as above mentioned, was in fact caused by and through a conspiracy between Talbott and others, with the object of extorting money from the complainants, and that everything done by Talbott in reference to the indictment was done in pursuance of that conspiracy. To this, by a further answer, Talbott entered an unequivocal denial.
Upon these pleadings, and upon proofs submitted by the respective parties in support thereof, the cause was brought to final hearing, with the result already mentioned.
The principles upon which the decision of the case must turn are entirely familiar. In order to warrant the inter-position of a court of equity to restrain the enforcement of a judgment at law, it is, of course, not sufficient for the defeated party to show that because of some newly discovered evidence pertaining to an issue in the case, or because of some newly discovered fact that might have been put in issue, he would probably have a better prospect of success on a retrial of the action. He must show something to render it manifestly unconscionable for his successful adversary to enforce the judgment.
*658 As Chief Justice Marshall said: "Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law; or of which he might have availed himself at law, but was prevented by fraud or accident unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery." Marine Ins. Co. v. Hodgson, 7 Cranch, 332, 336. Or, as Mr. Justice Curtis expressed it, in Hendrickson v. Hinckley, 17 How. 443, 445: "A court of equity does not interfere with judgments at law, unless the complainant has an equitable defense, of which he could not avail himself at law, because it did not amount to a legal defense, or had a good defense at law, which he was prevented from availing himself of by fraud or accident, unmixed with negligence of himself or his agents."
One who seeks relief in equity against a judgment at law on the ground that through accident or mistake alone, unmixed with fraud, he has lost the benefit of a defense that would have been available in the court of law, must show entire freedom from fault or neglect on the part of himself and his agents, and must also make it manifest that the judgment against him is wrong on the merits, that he ought in justice to prevail, and that upon a retrial, with the aid of the newly discovered matter of fact or of evidence, it is reasonably certain that he will prevail. Pom. Eq. Jur. (3d ed.) §§ 1364, 1365, and notes.
The trial court rested its decision adverse to Talbott upon the theory that if it were true that he had misused his office as State's attorney, and, because of spite or for any other selfish or personal reason, had wrongfully procured an unjust indictment against Pickford and Walter, *659 he ought not, in equity and good conscience, to be permitted to collect damages against them for publishing his misconduct, because he would thereby be taking advantage of his own wrong. The court recognized that this theory was applicable only if the statements made in the libelous article were true; and, accepting Judge Henderson's testimony as conclusive upon that issue, the court held it to be unconscionable for Talbott to enforce his judgment. We find it unnecessary to test the correctness of the theory, because, like the Court of Appeals, we differ with the trial court upon the question of fact. Under the pleadings, the burden was upon the complainants (now appellants) to prove the official misconduct of Talbott, and this they failed to prove.
The Court of Appeals, correctly considering that most of the evidence was wholly irrelevant to the issues, and that substantially the only material evidence in support of the bill was that of Judge Henderson, and reviewing his testimony in extenso, came to the conclusion that it not only did not conclusively establish the truth of the matters alleged in the libelous article, but did not render it clear beyond reasonable doubt that it would produce a verdict favorable to the complainants if a new trial of the libel suit should be had. Attention was called to the fact that Judge Henderson testified to a conversation had with Talbott about nine years before, of which he had no memorandum to refresh his memory; that his examination showed his memory to be not entirely reliable; that Talbott expressly denied making the incriminatory statements attributed to him; that it was improbable that a lawyer of his standing, holding the important office of State's attorney, would, without apparent motive, deliberately make an admission to any one, much less to the judge of his circuit, that he was using the powers and opportunities of his office for private gain; and that it was improbable that such an admission if made under such circumstances, *660 would go unrebuked at the time. With this view we agree.
All question of fraud in the procurement of the judgment at law is thus eliminated. Indeed, counsel for appellants disavow any reliance upon fraud as a ground of relief. To quote from the brief: "The bill makes no averment whatever as to any fraud on the part of the appellee, plaintiff in the law suit, in procuring the judgment in question; the ground on which relief is prayed is accident, as distinguished from fraud."
Next, we agree with the Court of Appeals that, assuming the newly discovered evidence elicited from Judge Henderson would otherwise be sufficient ground for restraining the enforcement of the judgment, it was incumbent upon the appellants under the pleadings in the present action to prove that their failure to discover evidence of the truth of the libel and plead the same by way of defense in the action at law was not attributable to their own want of diligence. The bill alleges that they made diligent but unsuccessful efforts to discover such evidence, both before and after the filing of their plea. The answer calls for strict proof of this. But the averment is left entirely unsupported by the proofs in the case. Neither Pickford nor Walter nor their counsel in the libel suit gave any evidence tending to show any effort, diligent or otherwise, to discover evidence of the truth of the libel.
We do not hold them negligent merely because of not having sooner discovered that Judge Henderson was available as a witness. He himself testified to the effect that, because of the character of the communication, he was careful not to reveal what was said by Mr. Talbott to him until after the conclusion of the libel suit. But, assuming that what was charged against Mr. Talbott in the newspaper article was true, it is not to be assumed that diligent efforts would have discovered no other evidence of its truth. All of Talbott's dealings with the insurance *661 companies and with the other persons concerned in his alleged misconduct were within the range of investigation, had diligence been exercised.
Again, one of the peculiar features presented by this case is the following: Appellants, coming into equity for relief on the basis of Judge Henderson's evidence, rely upon it not as newly discovered evidence alone, but as evidence of a newly discovered fact. Merely as evidence it would not have been admissible on the former trial, justification not having been pleaded. It is upon the fact alleged to have been disclosed by Judge Henderson the fact being Mr. Talbott's alleged misconduct, and not merely his alleged admission of it that appellants are relying as a newly discovered defense to the action for libel. Now, the settled rule in equity is that a defense is not to be deemed "newly discovered," or as lost by "accident or mistake," if it was or ought to have been within the knowledge of the party when he was called upon for his defense in the action at law. As Lord Hardwicke said, "As to relieving against verdicts, for being contrary to equity, those cases are, where the plaintiff knew the fact of his own knowledge to be otherwise than what the jury find by their verdict, and the defendant was ignorant of it at the trial." Williams v. Lee, 3 Atk. 223, 224. Chancellor Kent said: "The general rule is, that this court will not relieve against a judgment at law, on the ground of its being contrary to equity, unless the defendant below was ignorant of the fact in question, pending the suit, or it could not have been received as a defense." Lansing v. Eddy, 1 Johns. Ch. 49, 51. See also Taylor v. Nashville & C. Railroad Co., 86 Tennessee, 228, and cases cited.
But how can the appellants be heard to say that when making their defense at law they were ignorant of the truth of the matters charged against Talbott in the newspaper article, when they themselves were the authors of those charges? Not only do the verdict and judgment in *662 the libel suit legally establish their responsibility for the published accusation, but such responsibility is tacitly admitted in the bill of complaint herein, and there is nothing to throw doubt upon it.
Upon the whole case, therefore, it cannot be said that appellants omitted to plead justification in the libel suit because of any "accident" or "mistake" within the meaning of the equitable rule. That defense was considered by them and their counsel and deliberately and advisedly rejected because (a) it could not be sustained, and (b) a failure to sustain it would probably embarrass them in their defense under the general issue, or rather, would render it probable that in the anticipated event of the plaintiff prevailing over them on the general issue, increased damages would be awarded against them because of the reiteration of the libel in a plea of justification. And if when called upon to make defense in the libel suit they had no sufficient evidence at hand to maintain the truth of the published matter, this must on the present record be attributed to one or the other of two causes. One is, that the published matter was in fact untrue; the other is, that they did not use proper diligence to discover evidence of its truth. Either explanation leaves them without claim to relief in this action.
The question whether appellants, because of having originally made a public accusation of malfeasance in office against the appellee without having evidence of the truth of the accusation sufficient even to warrant prudent counsel in making an issue of it in a libel suit are barred from relief in equity under the doctrine of "clean hands," it is unnecessary to consider.
It seems to us that the case of the appellants is without merit, and the decree under review will be
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3033642/ | FILED
NOT FOR PUBLICATION FEB 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAYMOND RAMIREZ, No. 09-55227
Petitioner - Appellant, D.C. No. 5:00-cv-00195-VAP-SH
v.
MEMORANDUM *
JAMES E. TILTON, Secretary of the
California Department of Corrections and
Rehabilitation,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted January 15, 2010
Pasadena, California
Before: GOODWIN, SCHROEDER and FISHER, Circuit Judges.
Raymond Ramirez appeals the denial of his petition for a writ of habeas
corpus. We affirm.
The California Supreme Court’s decision denying Ramirez’s habeas petition
was not an unreasonable application of the “narrow proportionality principle that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
applies to noncapital sentences.” Ewing v. California, 538 U.S. 11, 20 (2003)
(internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
Possession of any quantity of illegal drugs is no less serious than the theft offenses
that the Supreme Court has found not to raise an inference of gross
disproportionality. See Taylor v. Lewis, 460 F.3d 1093, 1099 (9th Cir. 2006). Nor
does Ramirez’s criminal history raise such an inference, because an attempt to
restrain a victim in her home is “marked by . . . the threat of violence.” Solem v.
Helm, 463 U.S. 277, 292-93, 296 (1983). If the gravity of a petitioner’s triggering
offense and criminal history does not create an inference of gross
disproportionality, we need not proceed to intrajurisdictional and interjurisdictional
comparisons. See Harmelin v. Michigan, 501 U.S. 957, 1004 (1991) (Kennedy, J.,
concurring in part and concurring in judgment); Rios v. Garcia, 390 F.3d 1082,
1086 (9th Cir. 2004).
AFFIRMED.
2 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3033646/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2777
___________
Eric L. Wesson, *
*
Appellant, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
United States of America, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: February 26, 2004
Filed: February 27, 2004
___________
Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
Eric L. Wesson appeals the district court’s* order dismissing as time-barred
Wesson’s Federal Tort Claims Act (FTCA) suit against the United States. Under 28
U.S.C. § 2401(b), an FTCA claim against the United States is barred unless presented
to the appropriate federal agency within two years after the claim accrues. Wesson
presented his claim to the Veteran’s Administration in July 2001, and we agree with
the district court Wesson knew of the alleged injury and suspected its cause by at
*
The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
least August 1993. See Motley v. United States, 295 F.3d 820, 822 (8th Cir. 2002).
Accordingly, we affirm. See 8th Cir. R. 47B.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1192645/ | 509 P.2d 356 (1973)
29 Utah 2d 327
L.W. FLYNN, dba L.W. Flynn Construction Company, Plaintiff and Appellant,
v.
W.P. HARLIN CONSTRUCTION COMPANY et al., Defendants and Respondents.
No. 12855.
Supreme Court of Utah.
April 17, 1973.
*357 James A. McIntosh, Salt Lake City, for plaintiff-appellant.
Elliott Lee Pratt of Clyde, Mecham & Pratt, Salt Lake City, for defendants-respondents.
CROCKETT, Justice:
L.W. Flynn who had the subcontract for cement work installations in building the Biological Science Building at the University of Utah sued Harlin Construction Co. and Morrin and Son Co., general contractors, alleging that defendants had: (1) wrongfully terminated his subcontract, which (2) caused him to lose the benefits therefrom, and (3) converted certain of his equipment and materials. After five days of trial to a jury of the usual eight members, one of them asked to be excused for personal reasons. Upon stipulation of the parties the juror was excused and the trial continued with seven jurors as permitted by our law.[1] The issues were submitted on special verdicts upon which the jury found in favor of the plaintiff on each of the propositions just stated, and assessed damages of $20,000 on (2) above, and $5,000 on (3) above.
Subsequently, the trial judge revived consideration of defendants' motions for directed verdicts on those issues. He denied the motions and refused to overturn the jury's findings as to (1), the finding of wrongful termination of the subcontract and as to (3), the $5,000 award for conversion of equipment and materials. However, as to (2), the assessment of $20,000 damages for the breach, he granted defendant's motion for a directed verdict, indicating that in his opinion there was insufficient evidence to sustain that finding.
Plaintiff appeals, seeking restoration of the jury's verdict on that issue. Defendant's cross-appeal, asking elimination of the $5,000 damage for conversion of plaintiff's property.
The desirability of brevity in the opinions of this court, which are published extensively and expensively, require that the evidence presented in eight days of trial be only in summary; and because the trial court took the issue of concern here *358 from the jury, we survey the evidence in the light favorable to the jury's verdict.[2]
The subcontract by which the plaintiff Flynn undertook to do the cement work in the Biological Science Building was executed on November 16, 1965. Stated in generality, he was to set the forms for the second and third floors and the roof, and to pour and install the cement work for all of the floors of the building, including those above mentioned and the first floor and the basement. Because of certain delays Flynn's work did not get under way until February, 1966. Thereafter there were other delays occasioned by bad weather and other causes, including lack of coordination in sequence of work of subcontractors. But the jury findings indicate that Harlin was not justified in blaming Flynn. Nevertheless, on May 13, 1966, defendants gave Flynn notice that his subcontract was terminated. Flynn left the job, but his workmen continued on, becoming employees of the defendants, and the project progressed to completion, using materials and supplies that had been brought onto the job by Flynn and his crews.
There is no disagreement that the measure of damages for breach of a construction contract which prevents its performance is the amount the contractor would have received for finishing the project, less whatever would have been the reasonable expenses in doing so.[3] The controversy is over two basic issues of fact, the determination of which are essential to the proper application of that rule.
The first is: what portion of the work had been done by May 13 when plaintiff was ousted from the job.
The second is: what would have been plaintiff's cost to complete it.
The amount set in the subcontract originally was $86,000; and there were agreed change orders of $2377.44, making a total of $88,377.44. It is not disputed that on the break-off date of May 13 Flynn had expended about $20,000 for materials and about $21,000 for labor costs, a total of about $41,000, thus just under half of the total contract price. Defendants insist that on that date Flynn had completed much less than one-half of the work. Their brief stated:
Flynn under any concept of the evidence still had two thirds of the forming work yet to do and over half of the pouring work to do.
From this they argue that Flynn having already expended $41,000, it would be necessary for him to expend greatly in excess of the $88,000 contract price to finish the job. Defendants presented evidence that it in fact did cost them more than the contract price to complete it.
As opposed to this the plaintiff points to his own evidence that he had completed substantially one-half of the actual construction and had incurred more than half of the expense. Corroborative of this is the testimony of Austin Scott, who had served as foreman for Flynn, and who stayed on as foreman for defendants. His estimate was about 40 per cent complete on that date. Plaintiff argues that even if Scott's 40 per cent estimate be accepted, there is nevertheless adequate basis in the evidence to support the verdict. He reasons thus: that the $20,000 expended for materials represented practically all that would be needed to complete the job; and that the $21,000 expended for labor was substantially half of the total labor cost that would be required. He avers that a substantial amount of the labor cost represented the expenses of getting all of the materials to the job, and of getting them conditioned and organized for the actual construction, and that with that phase of *359 the work completed, and better plans for coordination and progress of the work, he could have completed the entire job for about the same amount on labor expense, that is, another $21,000, which added to the $41,000 already expended, would make a total of $62,000, which would leave him a net of about $26,000 on the contract.
Plaintiff further suggests that the fact that the defendants may have expended more than the original subcontract called for does not compel the conclusion that the plaintiff Flynn could not have done it for less. Bearing on this is other testimony of the foreman, Austin Scott: That after the defendants took over they hired substantially more personnel, in some instances as many as two or three times as many, as could be efficiently working together in doing the job.
An important aspect of the dispute as to the amount of the project that had been completed on the break-off date, May 13, appears to focus more specifically upon the extent that Flynn had progressed in his work on the third floor, which would have been somewhere about the middle of the project.
It is helpful on the factual problem just stated to refer to parts of a somewhat extended analysis of the evidence by the trial judge in connection with his ruling on the directed verdict after the trial. With respect to the third floor he stated that he did not think that there was "any evidence of any work having been done [by Flynn] on the third floor ... [and further] ... in my opinion, Mr. Flynn is entitled to absolutely no credit in computations for anything done on the third floor." However, the plaintiff rejoins by pointing out from the now transcribed record (of which the trial judge did not then have the benefit) that both the plaintiff and Mr. Austin Scott had testified that substantial work had been done on the third floor; and further, that while Mr. Harlin himself had initially stated that he thought no work had been done on the third floor, after examining some photographs taken on that date, he admitted that some of Flynn's work had been done, but that he had no way of telling exactly how much.
Having an important bearing on both of the critical issues as stated above: the amount of work already done, and the cost of completing the project, is an exhibit referred to as P-93. It consists of figures placed on the board by Mr. Harlin under examination by plaintiff's counsel. When it was offered in evidence defendants' counsel objected on the ground that there was no basis in the evidence for the figures used. After discussion, the objection was overruled and it was received.
It is pertinent to examine the comments the trial judge made regarding that exhibit after the trial when he changed his ruling on the directed verdict:
Now as to the loss of profits that of course is the big question. I think it's readily apparent that the Jury was undoubtedly persuaded by the 32 cents computation which plaintiff's counsel had Mr. Flynn [this was actually Mr. Harlin preparing exhibit P-93] write out for the Jury on the board. In connection with that computation, a profit of $23,000 was alleged. The jury brought in a verdict of $20,000. That computation is the only basis in the evidence that could possibly support this verdict. When you began that exhibit Mr. Pratt objected and I overruled his objection on the basis that Mr. McIntosh made the contention that Austin Scott had testified that 10,000 square feet of the 3rd Floor was completed. As I say, six years dulls memory and I give Mr. Scott the benefit of the doubt that his memory is dulled, because I think the evidence in this case is absolutely convincing beyond the shadow of a doubt that there is no truth to that contention at all.
In blaming Mr. Scott's memory the judge was apparently trying to be charitable. But the essence of what he said was that he did not think that Mr. Scott had told the truth. This cannot be other than an appraisal of the credibility of Mr. *360 Scott's testimony, a prerogative which should belong exclusively for the jury.
This same pattern of thought was continued in the court's further statement:
... all you have got is a bare general statement by Scott on one side and an overwhelming weight of the evidence on the other side, is certainly in my opinion reversible error.
The judge also voiced dissatisfaction with another factual premise upon which the computation Exhibit P-93 was based, that is, the plaintiff's estimate that it would cost 32 cents per square foot to complete the cement work. With respect thereto the court said:
Your 32 cents a square feet came on the exhibit you had Mr. Harlin draw on the sheets of paper that went in as an exhibit. That is the exhibit that Mr. Pratt objected to. That is the exhibit that shows a 32 cents square foot average. Mr. Flynn even cut it down lower than that and said he could have finished it for 30 cents a square foot. And I am just compelled to make that decision, gentlemen. I can't see it any other way and I think it would be a manifest injustice to let a Jury's verdict, based upon that sort of erroneous computation, stand. (All emphasis in the quotes from the record has been added.)
This statement makes it plainly evident that there was the testimony of Flynn as to the cost per square foot used in the computation. Here, again, the credibility was for the jury.
It is of course a problem of serious concern to this court that a conscientious and industrious trial judge, who saw and heard the witnesses, and who appears to have given careful consideration to the evidence, has after the trial arrived at the conclusion that there was not sufficient evidence to support the $20,000 damage award; whereas, the jury, also presumably of conscientious and reasonable men, unanimously arrived at the opposite conclusion; and it is further perplexing that the judge appears to have had a different idea during the trial in admitting the evidence, and in submitting the issue to the jury, than the view he took of that matter after the trial was over.
We have no doubt that it is salutary for a trial judge to desire to be actively involved in the trial and to be eager to see that justice is done. Nevertheless, under our system of justice, it is neither essential nor desirable that the resolution of disputed questions of fact be forced into the exact mold of thought of any particular individual or judge. When a party has so requested, he is entitled to a trial by a jury of his fellow citizens. In order that that right be safeguarded as it should be, it is essential that the jury have the exclusive prerogative of passing upon the credibility of the evidence and of determining the facts.
Therefore, no matter how ardent may be the trial judge's desire to see that justice is done from his own point of view, he has an obligation of judicial restraint: to make allowance for the fact that other reasonable minds might arrive at a different conclusion than his own. This requirement of disciplined objectivity, in letting someone else have their way, and of letting justice be done from someone else's point of view, is one of the most difficult to achieve, and also one of the highest and most desirable of judicial qualities.[4] Yet, unless this principle is applied in practical operation, the right of trial by jury becomes but a delusion. The jury is permitted to go meaninglessly through all of the procedures of the trial and render the verdict, but only on the undisclosed condition that, unless its verdict agrees with the thinking of the trial judge, it will be set aside and held for naught. This case with everything involved therein, including eight days of trial, is a prime example of the futility and frustrations in such procedure. It offers *361 to the plaintiff the hollow satisfaction of vindicating his contention that defendants had wrongfully terminated his contract, but deprives him of any material redress therefor. This is not what was intended by the right of trial by jury.
It has long been established in our law that a court should not take the case from the jury where there is any substantial dispute in the evidence on issues of fact, but can properly do so only when the matter is so plain that there really is no conflict in the evidence upon which reasonable minds could differ.[5] As was said for this court long ago by the greatly respected Justice Frick:
... unless the question is free from doubt, the court cannot pass upon it as a matter of law ...
... if ... the court is in doubt whether reasonable men, ... might arrive at different conclusions, then this very doubt determines the question to be one of fact for the jury and not one of law for the court.[6]
It should be plain from what has been said above that there was such a dispute in the evidence here, and that the court was correct in his rulings during the trial: in admitting the evidence, and in submitting the issues to the jury.
Plaintiff also seeks reversal of the trial court's refusal to award him attorney's fees to which he claims entitlement by reason of section 14-1-8 U.C.A.:
In any action brought upon either of the bonds provided herein ... the prevailing party, upon each separate cause of action, shall recover a reasonable attorney's fee to be taxed as costs.
The purpose of the statutes requiring the bonds referred to on public contracts is to provide the same protection to laborers and materialmen as to those involved in private contracts:[7] and they are subject to the same rules in enforcement. The instant action was not in essence one for the payment of labor and materials as contemplated in those statutes, but rather was an action for damages for breach of contract,[8] and which incidentally also involved a claim count for conversion of equipment and materials. Accordingly, the trial court's refusal to award attorney's fees was justified.
Defendant's cross-appeal seeks to overturn the verdict which awarded plaintiff $5,000 damages for conversion of certain of his equipment and materials. We think it sufficient to state that the trial court was correct in observing that there was a basis in the evidence to justify that verdict, and that under those circumstances we do not disturb the jury's verdict nor the trial court's action thereon.
On the basis of what has been said herein, it is our conclusion that the action of the trial court in refusing to overturn the jury's verdicts as to (1) the wrongful termination of the plaintiff's subcontract, and as to (3) the $5,000 verdict for the conversion of plaintiff's material are sustained, but that his setting aside of the award of $20,000 damages is reversed and that verdict should be reinstated and judgment entered accordingly. Costs to plaintiff (appellant).
CALLISTER, C.J., and ELLETT, and TUCKETT, JJ., concur.
HENRIOD, J., concurs in the result.
NOTES
[1] See Rule 48 U.R.C.P.; and that parties can waive a jury entirely, or can waive any part thereof; see State v. Heemer, 25 Utah 2d 69, 475 P.2d 1008, citing Patton v. United States, 281 U.S. 276, 50 S. Ct. 253, 74 L. Ed. 854.
[2] Finlayson v. Brady, 121 Utah 204, 240 P.2d 491 (1952); Glenn v. Gibbons & Reed Co., 1 Utah 2d 308, 265 P.2d 1013 (1954); Koer v. Mayfair Markets, 19 Utah 2d 339, 431 P.2d 566 (1967).
[3] Flynn v. Schocker Construction Co., 23 Utah 2d 140, 459 P.2d 433 (1969).
[4] See statement of Chief Justice Burger in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (June 29, 1972).
[5] Rule 51 U.R.C.P.; Campbell v. Los Angeles & S.L.R. Co., 71 Utah 173, 263 P. 495 (1928); Ewan v. Butters, 16 Utah 2d 272, 399 P.2d 210 (1965).
[6] Newton v. Oregon Short Line R. Co., 43 Utah 219, 134 P. 567 (1913).
[7] See 17 Am.Jur.2d, Contractors' Bonds, Secs. 44, 59.
[8] See 119 A.L.R. 1281. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/97786/ | 227 U.S. 342 (1913)
STUART
v.
UNION PACIFIC RAILROAD COMPANY.
No. 135.
Supreme Court of United States.
Argued January 22, 1913.
Decided February 24, 1913.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
*343 Mr. Charles A. Murray, with whom Mr. Thomas B. Stuart, Mr. Louis T. Michener, Mr. Perry G. Michener and Mr. Joseph C. Helm were on the brief, for petitioners.
Mr. Clayton C. Dorsey for respondent.
Mr. Joseph C. Ewing, by leave of the court, filed a brief as amicus curice.
MR. JUSTICE McKENNA delivered the opinion of the court.
Suit to quiet title to the E. 1/2 of the N.W. 1/4 and the N.E. 1/4 of the S.W. 1/4 and the N.W. 1/4 of the S.E. 1/4 of Section 20, Township 38, Range 67 West, situated in the city and county of Denver (formerly in Arapahoe County), State of Colorado.
The suit was brought in the District Court of the city and county of Denver against the Kansas Pacific Railway Company, the Colorado Eastern Railroad Company and the Union Pacific Railroad Company and removed on the petition of the latter company to the United States Circuit Court for the District of Colorado, on the ground of a separable controversy. A motion to remand was made and denied. The railroad company answered, joining issue as to so much of the lands as constituted a tract 200 feet in width on each side of its road. It asserted title as successor of the Kansas Pacific Railway Company, which had been granted the tract as a right of way, it was alleged, by the acts of Congress generally denominated the Pacific Railroad Acts.
The discussion in the case will turn upon the title of the railroad rather than upon the title of petitioners. There is *344 no question of their title if that of the respondent company be not good. The Circuit Court held that the title of the company was good and dismissed the bill. The Circuit Court of Appeals decided that the dismissal of the bill was error; that the court should have recognized the company's title to the right of way and have quieted petitioners' title to the remainder. The decree of the Circuit Court was modified accordingly. 178 Fed. Rep. 753.
The Pacific Railroad Acts have been before this court so many times that it seems unnecessary to make further quotation from them. The first of them was passed July 1, 1862 (12 Stat. 489, c. 120): the second one, July 2, 1864 (13 Stat. 356, c. 216), and two others respectively on July 3, 1866 (14 Stat. 79, c. 159), and March 3, 1869 (15 Stat. 324, c. 127). Their relation constitutes the controversy in the case, and, simply stated, it is whether the right of way granted to the Leavenworth, Pawnee & Western Railroad Company, the name of which was changed in 1863 to Union Pacific Railway Company, Eastern Division, and in 1864 to the Kansas Pacific Railway Company, terminated at the one hundredth meridian or extended westward of that point to Denver. The petitioners contend for the former; the railroad company, for the latter.
The explicit contention of petitioners is that the right of way granted to the Kansas Pacific Railway Company (we use the latest name) does not extend to the lands in question, for that company, under its first name of Leavenworth, Pawnee & Western Railroad Company, and all other eastern branches of the main line were authorized to build only to the one hundredth meridian, and no farther.
The main line was, under the act of July 1, 1862, authorized to be constructed by the Union Pacific Railroad Company westward through Cheyenne to the western boundary of Nevada and possibly farther to meet the Central Pacific Railroad, which was authorized to *345 build from the coast eastward. To the main line so constituted grants of land and bonds were made and a right of way was granted through all public lands "200 feet in width on each side of said railroad where it may pass over public lands." The initial point of the Union Pacific was to be the "100th meridian . . . between the south margin of the valley of the Republican and the north margin of the valley of the Platte, in the Territory of Nebraska."
Section 9 of the act authorized the Leavenworth, Pawnee & Western Railroad to construct a road from the Missouri river at the mouth of the Kansas "to the aforesaid point on the 100th meridian . . . upon the same terms and conditions in all respects" as provided for the main line. The road was required to be so located through Kansas as to be between the mouth of the Kansas river and the designated point on the one hundredth meridian, and, it was provided, that the several roads from Missouri and Iowa authorized by the act to connect with the same could make the connection within the limits prescribed in the act, providing it could be done without deviating from the general direction of the whole line to the Pacific coast.
There is no uncertainty in the act of 1862. The initial point of the main line was the one hundredth meridian, and at that point the Leavenworth, Pawnee and Western Railroad Company (now the Kansas Pacific Railway) and other eastern branches were to connect with the main line.
The next act is that of July 2, 1864, and on its provisions arise the principal controversy in the case. It is contended by the respondent railroad company that the act authorized the Kansas Pacific road (then, as we shall see, the Union Pacific Railroad, Eastern Division) to build westward of the one hundredth meridian, and granted it, besides certain sections of the public lands, a right of way *346 400 feet wide, 200 feet either side of the center of its track. Petitioners oppose the contention and insist that the act only aimed to provide for the convenient connection of certain branch roads with the main trunk line at or near the one hundredth meridian and did not extend a right of way to any branch beyond the one-hundredth meridian. Comparing the two acts, petitioners say that the act of 1862 referred solely to the right of way through public lands. The act of 1864 referred solely to condemnation of right of way through private lands and to granting facilities of connection with the Union Pacific through ferries and bridges over navigable rivers. The permission to build westwardly, it is further urged, was not given to all branches but only to such as were made branches by the act of 1864. The contentions are earnestly argued and are made to rest mainly on § 9 of the act.
The act of 1864 was entitled "An Act to amend" the act of 1862, and it was provided by § 9 that " . . . any company authorized by this act to construct its road and telegraph line from the Missouri river to the initial point aforesaid [100th meridian] may construct its road and telegraph line so as to connect with the Union Pacific Railroad at any point westwardly of such initial point, in case such company shall deem such westward connection more practicable or desirable; and in aid of the construction of so much of its road and telegraph line as shall be a departure from the route hereinbefore provided for its road, such company shall be entitled to all the benefits, and be subject to all the conditions and restrictions, of this act: Provided further, however, That the bonds of the United States shall not be issued to such company for a greater amount than is hereinbefore provided, if the same had united with the Union Pacific Railroad on the one hundredth degree of longitude; nor shall such company be entitled to receive any greater amount of alternate sections of public lands than are also herein provided." (Italics ours.)
*347 At the time of the passage of that act the Leavenworth, Pawnee & Western Railroad Company (now the Kansas Pacific Railway Company) was known as the Union Pacific Railroad Company, Eastern Division, in accordance with lawful authority given in 1863. The time for the completion of its line was extended, and by the act of July 3, 1866, it was given until December 1, 1866, to file the map of general route. Upon filing the map the lands along the entire line of the general route were to be reserved by the Secretary of the Interior. It was provided that the company should be entitled only to the same amount of bonds "as they would have been entitled to if they had connected their said line with the Union Pacific Railroad on the 100th degree of longitude as now required by law. And, provided further, that said company shall connect their line of railroad and telegraph with the Union Pacific Railroad, but not at a point more than fifty miles westwardly from the meridian of Denver in Colorado."
By applying very simple rules of construction to these acts and from a consideration of their purpose and the means which were deemed necessary to accomplish that purpose, we should have to reject the contention of plaintiffs. We are relieved, however, of the necessity of a lengthy discussion and one which we might consider necessary, in deference to the earnestness of counsel, by the previous decisions of this court and may rest our judgment on their authority.
The acts of Congress came up for consideration and construction in Missouri, K. & T. Ry. Co. v. Kansas Pacific Ry. Co., 97 U.S. 491, 494, upon the very points now involved. The contest was between the two railroad companies as to which was entitled to certain lands, whether the Kansas Pacific Railway Company took them under the act of 1862 as amended in 1864, or whether the Missouri &c. Railway Company was entitled to them under a grant to it made July 26, 1866. It is manifest *348 that the issue presented was an important one and had important consequences. The court intimated that principles and considerations upon which it should be decided affected other rights as well as those contested and necessarily gave them a proportional consideration. The opinion demonstrated it. It was decided that the act of 1862 and that of 1864 practically constituted one act, and the enlargement by the latter of the grant made by the former took effect at the date of the former; and "this was done," it was said, "not by words of a new and additional grant, but by a change of words in the original act, substituting for those there used words of larger import." It was further decided that the act of 1864 "authorized the plaintiff [the Kansas Pacific Railway Company] to construct its road and telegraph line so as to connect with the Union Pacific Railroad at any point westwardly of its initial point, in case it deemed such westward connection more practicable or desirable." This is the language, it will be observed, of § 9 of the act of 1864. The court used it as the best means of expressing the purpose of the act.
In United States v. Kansas Pacific Ry. Co., 99 U.S. 455, the extent of the grant made by the acts of 1862 and 1864 again came up for decision, and upon issues more pertinent to the present controversy, if possible, than those in the other case. The case concerned the extent of the lien of the Government and the liability of the company for 5% of the net earnings of that portion of the road of the company west of the one hundredth meridian. The answer was considered as turning on the construction of § 9, supra. Commenting on its provisions, the court said (p. 457): "It thus appears that whilst the company was authorized to extend its road west of the one hundredth meridian, if it saw fit so to do, it was entirely in its option; and if it did, it was not to expect, or have, any subsidy of government bonds for such extension."
*349 The road was actually built to Denver, 245 miles beyond the one hundredth meridian, and upon this part of the road the Government claimed a lien as well as upon the road east of the meridian. Passing on the claim, the court said (p. 457): "A material question in this case is, whether the whole line to Denver, or only the line which the company was first authorized to construct (which terminated at the one hundredth meridian), is liable to the lien for the government subsidy, and the payment of five per cent. of net earnings." Answering the question, it was observed (p. 458): "From a careful examination of the statutes relating to this subject, we are of opinion that, whilst, as to its entire line, the company, in the words of the ninth section of the act of 1864, is `entitled to all the benefits and subject to all the conditions and restrictions of the act,' and is bound to furnish transportation and telegraphic accommodations to the government on the usual terms; yet that the subsidy bonds granted to the company, being granted only in respect of the original road, terminating at the one hundredth meridian, are a lien on that portion only; and that the five per cent. of the net earnings is only demandable on the net earnings of said portion." See also United States v. Union Pacific Railway, 148 U.S. 562; Kansas Pacific Ry. Co. v. Dunmeyer, 113 U.S. 629.
It may be said that Union Pacific Railroad Co. v. Harris, 215 U.S. 386, puts a different construction upon the acts of 1862 and 1864 from that received in the cases cited, and, it must be admitted, there is language in the opinion which may be so understood, but that it was not so intended is made clear by Kindred v. Union Pacific Railroad Co., 225 U.S. 582, where it is again declared that under congressional authority the route of the road was changed so that its connection with the Union Pacific Railroad would be made at a point farther west than was originally intended.
*350 These cases decided that the Kansas Pacific Railway Company had a right to build west of the one hundredth meridian. It is not necessary, therefore, to consider the special features of the acts upon which petitioners rest their contention that the Kansas Pacific had no such right. The basic one, however, we will mention, lest it be thought that we have overlooked it or have not properly estimated its force. It is that the acts of 1862 and 1864 should not be considered and construed as one act; that though their provisions had relation in some instances, in others they had independent effect. Section 9, it is contended, is of the latter character, and is given a specific application by the proviso which is in the following words: "And provided further, That any company authorized by this act [italics ours] to construct its road and telegraph line from the Missouri river to the initial point aforesaid, may construct its road and telegraph line so as to connect with the Union Pacific Railroad at any point westwardly of such initial point." It is contended that these words exclude the Kansas Pacific Railway Company because the only two railroads authorized by "this act" to be constructed were the Sioux City Railroad (section 17) and the Burlington & Missouri River Railroad (section 18). But that the words "this act" should have such limited application was necessarily involved in the other cases and was adversely decided.
We have seen that the act of July 3, 1866, extended the time of the Union Pacific Railroad Company, Eastern Division (now the Kansas Pacific), to file its map of general route and provided for a reservation of land all along the route; but it also provided that the company should be entitled only to the same amount of bonds as it would have been entitled to if it had connected its line "with the Union Pacific Railroad on the 100th degree of longitude as now required by law." (Italics ours.) It is insisted by petitioners that this provision is a legislative construction *351 of the act of 1864 and "conclusive upon the point that it was defendant's [Kansas Pacific Railway, then Union Pacific Railroad, Eastern Division], duty at the date of said act to unite with the Union Pacific Railroad at the 100th meridian, and has the same effect as a special enactment of that date to that effect." The Court of Appeals rejected this contention, and construed the provision not as requiring the connection of the roads to be at the given meridian but as declaring that there should not be issued to the company bonds for a greater amount than if there had been a union with the Union Pacific at that point. And this necessarily must have been determined to be the true construction in the cited cases. We have said, perhaps with unnecessary repetition, that all the acts were under consideration in those cases and their true relation and meaning decided.
There are specific contentions addressed to the grant of the right of way. Some of them involve the element that the acts of Congress granted no right to the Kansas Pacific Railway Company to build west of the one hundredth meridian. That we have disposed of. Some of them are based on the following propositions: (1) that a grant of the right of way cannot be implied; it must actually exist in express words; (2) it cannot be implied from the use of the word "`benefits,'" as there are many other benefits in the same act to which that word more aptly applies; (3) it is shown by the act that it never was intended to apply to the right of way. The last two contentions may be immediately rejected. The act manifestly applies to a right of way, and there is no distinction made between "benefits," for the language is "shall be entitled to all the benefits," save that of receiving bonds. A right of way is a substantial and obvious benefit. Railroad Co. v. Baldwin, 103 U.S. 426, 430.
There are two other contentions which deserve more extended comment. They are, (a) "that the act of 1864, *352 being simply an option offered to certain roads to build westwardly," etc., it must be shown that they accepted said option by filing maps thereunder, changing the old route and designating the new one. (b) "That the grant of a right of way is necessarily in the nature of a float, although a grant in proesenti, like a military land warrant. It becomes fixed only by filing a map of definite location or by actual construction."
In reply to these contentions the respondent company insists that neither a map of general location nor of general route was necessary to the acquisition of a right of way; that actual construction would secure it. The evidence as to filing maps is somewhat uncertain. The Court of Appeals in its opinion says: "There was some evidence indicating that a map, showing the general route of the railroad westwardly to the eastern Colorado line, was filed with the Secretary of the Interior prior to November 30, 1866, the date not being more definitely stated; that a map showing the general route from the eastern Colorado line to Denver was accepted by that officer November 30, 1866, and that a map showing the definite location of the railroad to Denver was filed in the land office at Denver September 24, 1870; but none of these maps, nor any better statement of what was shown thereon, was offered in evidence."
It is, however, admitted by petitioners that a right of way could be acquired by actual construction of the road, and the railroad company finally rests its title on actual construction of the road under the granting acts. It admits that "the line of railroad was not definitely located until the actual construction thereof." But it is contended that upon its construction "the right of way attached to the line as so constructed, but took effect as of the date of the act of 1864." In other words, it is contended that the right of way granted by the acts is given definite location and precision by the construction of the road and *353 extends to the width of 200 feet from the center line of the track. This contention is supported by the decisions of this court. Northern Pacific Railroad Co. v. Smith, 171 U.S. 260. See also Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267. The road was actually constructed through Denver and to a connection with the Union Pacific at Cheyenne and over the lands in controversy in 1870, and has been in operation ever since. But the right of way to its full width has not been occupied and used. This, however, makes no difference. See cases cited immediately above and Northern Pac. Ry. Co. v. Hasse, 197 U.S. 9; Missouri, Kansas & Texas Ry. Co. v. Cook, 163 U.S. 491, 497.
In this connection it is to be remembered that the grant of the right of way differed from the grant of alternate odd-numbered sections in that, while both were expressed in the words of a grant in proesenti, the former was without limitation or exception, while the latter was expressly made subject to the limitation or exception that it should not include any lands which, although public at the date of the grant, were sold, reserved or otherwise disposed of by the United States, or to which a preemption or homestead claim had attached, at the date of definite location. Of such a difference between an unconditional grant of a right of way and a qualified grant of alternate odd-numbered sections this court said, in Railroad Co. v. Baldwin, 103 U.S. 426, 430: "The uncertainty as to the ultimate location of the line of the road is recognized throughout the act, and where any qualification is intended in the operation of the grant of lands, from this circumstance, it is designated. Had a similar qualification upon the absolute grant of the right of way been intended, it can hardly be doubted that it would have been expressed. The fact that none is expressed is conclusive that none exists. We see no reason, therefore, for not giving to the words of present grant with respect to the *354 right of way the same construction which we should be compelled to give, according to our repeated decisions, to the grant of lands had no limitation been expressed. We are of opinion, therefore, that all persons acquiring any portion of the public lands, after the passage of the act in question, took the same subject to the right of way conferred by it for the proposed road."
Petitioners rely upon adverse possession, established, as it is contended, under the statute of Colorado by the payment of taxes, and invoke in connection with such adverse possession the act of June 24, 1912, 37 Stat. 138, c. 181, entitled "An Act legalizing certain conveyances heretofore made by the Union Pacific Railroad Company."
Section 1 of the act legalizes all conveyances made by the railroad and railway companies to which grants of a right of way have been made, as we have stated, to the extent that the conveyances "would have been legal or valid if the land involved therein had been held by the corporation making such conveyance or agreement under absolute or fee simple title." It is further provided that where adverse possession is claimed of any part of such right of way under the laws of the State where the land is situated, such adverse possession shall have the same effect as though the right of way had been granted absolutely or in fee simple instead of being granted as a right of way. Of the effect of this act we are not called upon to express an opinion other than to say that it cannot avail petitioners, for the record shows that the respondent company also returned the right of way for taxation and paid the taxes thereon. In that respect the parties are on an equal footing.
Decree affirmed.
MR. JUSTICE HOLMES and MR. JUSTICE PITNEY took no part in the decision. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/97800/ | 227 U.S. 456 (1913)
HAMPTON
v.
ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY.
No. 3.
Supreme Court of United States.
Argued October 29, 30, 1912.
Decided February 24, 1913.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.
*458 Mr. Hal L. Norwood, Attorney General of Arkansas, and Mr. Maurice M. Cohn for appellants, submitted.
Mr. Lovick P. Miles, with whom Mr. Martin L. Clardy was on the brief, for appellee.
*462 MR. JUSTICE LURTON, after making the above statement, delivered the opinion of the court.
The single purpose of this case is to prevent the bringing of actions at law in the name of the State and by order of the State Railroad Commission to recover penalties prescribed by the Arkansas act of March 11, 1899, §§ 11 and 18, for the violation of the provisions of § 11 of the act referred to, and of § 1 of the act of April 19, 1907. The case turned below upon the single question of the constitutionality of the act of April 19, 1907, being an act entitled, "An Act to regulate freight transportation by railroad companies doing business in the State of Arkansas." The only parts of that act here in any way involved are the first paragraph of the first section, and the last clause in the seventeenth section. The paragraph of the first section is the legislative authority under which the Commission finds power to make its order No. 346, concerning the duty of carriers to furnish cars upon the demand of shippers, its said order being in the very words of that paragraph, as follows:
*463 "That when a shipper makes a written application to the station agent of a railroad company for a car or cars, to be loaded with any kind of freight embraced in the tariff of said company, stating in said application the character of freight, and its final destination, the railroad company shall furnish same at the place of shipment within six days from 7 o'clock A.M. the day following such application."
The clause concluding the seventeenth section of the act is in these words:
"Interstate railroads shall furnish cars on application for interstate shipments the same in all respects as other cars to be furnished by intrastate railroads under the provisions of this Act."
The order of the Commission directed the bringing of actions against the defendant in error for the wilful violation of the provisions of § 1, set out above, and also for an illegal discrimination under § 11 of the act of March 11, 1899, referred to above. That section forbids any discrimination or preference in furnishing cars and requires equal facilities to all under like circumstances and conditions.
By agreement of the parties, recited in the decree below, and repeated in the memorandum opinion filed by the Circuit Judge, every question was eliminated from the case except the constitutionality of the act of 1907. The issue for our consideration by this action of the parties is very succinctly stated by Judge Treiber, who presided in the Circuit Court, in these words (p. 694):
"In the argument counsel agreed that the only question necessary for a final determination of this cause is the constitutionality of the act of the General Assembly of the State of Arkansas, No. 193, approved April 19, 1907, entitled, `An Act to regulate freight transportation by railroad companies doing business in the state of Arkansas,' and, if unconstitutional, that the injunction may be made perpetual."
*464 The court then adds:
"The court holds the act is unconstitutional upon two grounds: 1. By the last sentence of section 17 it is clearly shown that the intention of the Legislature was to apply its provisions to interstate shipments as fully as to intrastate shipments, and there is nothing in the act to indicate that the act would have been passed unless it could thus be made applicable. This is clearly an interference with interstate commerce, and, as this provision cannot be disregarded without defeating one of the main objects of the act, it is unconstitutional. 2. The requirement to furnish the cars is absolute and makes no exceptions for cases of a sudden congestion of traffic, actual inability to furnish cars by reason of their temporary detention in other states or in other places within the same state, none for interference of traffic occasioned by wrecks, accidents, or strikes. Houston &c. R.R. v. Mayes, 201 U.S. 321 is conclusive.
"For these reasons the temporary injunction heretofore granted will be made perpetual as to proceedings by defendants under the act of April 19, 1907, but the injunction is not to apply to any acts by defendants under any other statutes of the State. Let there be a decree accordingly."
Neither have counsel for appellees in this court presented any question other than that of the unconstitutionality of the act of 1907. We shall, therefore, for the purposes of this case assume that the railroad company did fail and refuse to furnish cars as requested and that it also favored a coal company in which it was interested, and that it rests its defense upon the invalidity of the act of 1907.
The attack upon that act turned upon two propositions.
a. That the clause of the seventeenth section, set out above, manifests an intention that the act shall apply as well to interstate shipments as to intrastate shipments, and that this purpose invalidates the whole act, as there *465 is nothing to justify the court in saying that the valid parts of the act would have been passed without the invalid parts.
b. That the requirement to furnish cars found in the first section is absolute and that no excuse arising from the detention of the company's cars upon other and connecting lines of railroad in and out of the State, nor for delays due to sudden emergencies, unusual congestion of traffic, catastrophes or other unavoidable and unusual conditions without fault, is a defense against the penalty imposed for failure to supply cars as required.
Coming first to the clause in the seventeenth section which the court below held invalidated the whole act:
That clause probably means no more than that there shall be no discrimination against demands for cars for interstate shipments. If, however, it be construed as extending the act so as to regulate the furnishing of cars for interstate shipments, it would be invalid by reason of the provisions of the Hepburn Amendment to the act to regulate commerce of June 29, 1906: Chicago, R.I. & P.R. Co. v. Hardwick Elevator Co., 226 U.S. 426.
The effect of this upon the remainder of the act has not been considered in the briefs of appellee, further than to say that in Oliver v. Chicago, R.I. & P.R. Co., 89 Arkansas, 466, decided pending this appeal, the Supreme Court of the State has held the act valid as including an elaborate and workable scheme for the regulation of intrastate railroad traffic, irrespective of the invalidity of the clause referred to. We shall therefore assume the remainder of the act to be valid, although the clause in question be regarded as invalid.
Neither is the requirement of the act as to the duty of furnishing cars absolute, as held by the court below. That the act upon its face includes no exceptions or excuses is not conclusive of its meaning and intent. The case of Houston & T.C.R. Co. v. Mayes, 201 U.S. 321, is not *466 controlling. The dereliction there involved was in the failure to furnish cars for an interstate shipment, under a Texas statute which required the carrier to furnish cars upon six days' notice, with a provision that the law should not "apply in cases of strikes or other calamity." This court concluded that the inclusion of a particular exception, excluded all others, and that an absolute requirement that a railroad shall furnish a certain number of cars at a specific day, regardless of every other consideration "except strikes and other public calamities" amounted to a burden upon interstate commerce. The court added (p. 329), "It makes no exception in cases of a sudden congestion of traffic, an actual inability to furnish cars by reason of their temporary and unavoidable detention in other States, or in other places within the same State," etc.
But the penalties imposed by the act here involved are enforceable only in an action at law, and in such an action the Supreme Court of the State has held that such a statutory provision is but declarative of the common law, and that any reasonable excuse for a failure to furnish cars upon the requirement of a shipper, may be interposed. St. Louis S.W. Railway v. Clay County Gin Co., 77 Arkansas, 357; St. Louis S.W.R. Co. v. State, 85 Arkansas, 311; Oliver v. Railroad, 89 Arkansas, 466, 470. In the case last cited the Arkansas court said of this provision of the act of 1907, that,
"The failure to furnish cars under the terms of the act under investigation will establish prima facie a breach of duty on the part of the railroad companies. This will not preclude their right to set up such defense as will excuse or justify the failure. That a fair division of cars with interstate business made it impossible to answer all demands made for cars for intrastate business would apparently be within the limit of proper defenses in cases of demands too unusual to be foreseen; and, viewed in this *467 way, the act is relieved of the imputation of burdening interstate commerce."
In the case of Railroad v. State, cited above, the excuse for failure to furnish cars upon the requirement of a shipper was that it was unable to do so because, while its car equipment was ample for all the demands of its traffic, it had, at the time when it made default, lost control of a majority of its cars through the fact that they had been sent beyond its own line in interstate commerce, and it had been unable to secure their prompt return through the inefficiency of the rules and regulations of the American Railway Association, of which it was a member. Although it appeared that ninety per cent. of all the railroad companies in the United States were members of that association and permitted interchange of cars with connecting railroads, and the company was powerless to correct the rules and regulations of that association or supervise their enforcement, the Arkansas court held that the detention of its cars upon other lines of railroad in the course of its interstate business afforded no reason for its failure to supply cars in the particular case under consideration. The case was reversed by this court, 217 U.S. 136, 147; when the court, among other things, said:
"As the penalty, which the court sustained, was enforced solely because of its conclusion as to the inefficiency of the rules and regulations of the American Railway Association, which governed ninety per cent. of the railroads in the United States, the court was evidently not unmindful that the carrier before it was powerless of its own motion to change the rules thus generally prevailing, and therefore was necessarily either compelled to desist from the interchange of cars with connecting carriers for the purpose of the movement of interstate commerce, or to conduct such business with the certainty of being subjected to the penalties which the state statute provided for."
*468 And the court further said (p. 149):
"The ruling of the court below involved necessarily the assertion of power in the State to absolutely forbid the efficacious carrying on of interstate commerce, or, what is equivalent thereto, to cause the right to efficiently conduct such commerce to depend upon the willingness of the company to be subjected to enormous pecuniary penalties as a condition of the exercise of the right."
The cases referred to make it clear that the statutory duty of furnishing cars upon the reasonable notice of a shipper is not absolute, and that the legislature did not intend to impose upon railroad companies the duty of furnishing cars to a particular shipper regardless of its equal duty to other shippers, state and interstate, or to a situation due to some unusual and unavoidable condition which made it unreasonable that it should be penalized for non-compliance; and also that if in the administration of the statute a ruling is made by the state court in respect to an excuse for non-compliance which operates as a restraint upon interstate commerce, a Federal question arises which may be reviewed by this court.
The conclusion we reach is that the railroad company, as the case is presented by the pleadings, the agreement of the parties and the ruling of the court below, is making an effort to test the constitutionality of the act of 1907, without showing that in the operation of the act interstate commerce has been illegally restrained or burdened, or that any defense which it may have for the neglect to comply with the provisions of the act as to furnishing cars has been or will be denied by virtue of its obligation as an interstate railroad. The objections which are suggested in the bill are conjectural and academic. The excuse made by the bill for its refusal to furnish the cars requested and for its illegal discrimination were put in issue by the answer and not proved. In Hatch v. Reardon, 204 U.S. 152, 160, it is said:
*469 "That unless the party setting up the unconstitutionality of the state law belongs to the class for whose sake the constitutional protection is given, or the class primarily protected, this court does not listen to his objections, and will not go into imaginary cases, notwithstanding the seeming logic of the position that it must do so, because if for any reason, or as against any class embraced, the law is unconstitutional, it is void as to all. Supervisors v. Stanley, 105 U.S. 305, 311; Clark v. Kansas City, 176 U.S. 114, 118; Lampasas v. Bell, 180 U.S. 276, 283, 284; Cronin v. Adams, 192 U.S. 108, 114. If the law is valid when confined to the class of the party before the court, it may be more or less of a speculation to inquire what exceptions the state court may read into general words, or how far it may sustain an act that partially fails."
This principle has been applied in many cases, among them: Turpin v. Lemon, 187 U.S. 51, 60; The Winnebago, 205 U.S. 354, 360; Citizens Bank v. Kentucky, 217 U.S. 443; Southern Railway v. King, 217 U.S. 524, 534; Rosenthal v. New York, 226 U.S. 260, 271.
The result is that the decree must be reversed and the case remanded with direction to dismiss the bill. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1920188/ | 447 N.W.2d 409 (1989)
Steven M. EGLI, Petitioner-Appellant,
v.
Margaret E. EGLI, a/k/a Margaret A. Baker, n/k/a Margaret A. Baker Mellberg, Respondent-Appellee.
No. 88-1113.
Court of Appeals of Iowa.
August 23, 1989.
*410 Dale E. Goeke of Hagemann, Goeke & Egli, Waverly, for petitioner-appellant.
L.J. Cohrt of Swisher & Cohrt, Waterloo, for respondent-appellee.
Considered by DONIELSON, P.J., and SACKETT and HABHAB, JJ.
HABHAB, Judge.
Petitioner, Steven Egli, appeals the decision of the Iowa District Court sustaining respondent's, Margaret Egli, motion to dismiss. He argues the district court erred in finding that no personal jurisdiction exists over Margaret, who lives in Rhode Island.
The parties were married in Iowa in 1967. Their one child, Nathan, was born in Iowa in November 1967. The parties lived in Iowa until 1973. In that year they moved to New York.
The parties' marriage was dissolved by a New York decree in 1976. The 1976 decree placed the child in Margaret's custody and directed Steven to pay child support of $60 per week.
Some time after the 1976 dissolution, Margaret and the child moved to Rhode Island, while Steven remained in New York. In 1979 Margaret instituted support proceedings in New York which resulted in a 1979 New York order once again directing Steven to pay $60 per week in child support.
In 1980 Steven returned to Iowa, where he has since resided. In 1984 the parties' child came to Iowa to live with Steven; the child has lived in Iowa ever since. Margaret continues to live in Rhode Island.
In 1987 Steven received a billing statement from a Support Collection Unit in New York; the statement sought to recover alleged arrearages under the 1979 support order. Steven contacted the Support Collection Unit and was advised that the 1979 support order could be terminated if Margaret would notify the Support Collection Unit that there was no longer a need for support. Steven then asked Margaret to so notify the Support Collection Unit. Margaret refused to do this, and instead indicated that she planned to try to collect support arrearages.
Steven thereupon filed the present proceeding in the Iowa district court, seeking to vacate the 1979 order of the Family Court of New York for child support and to have shown as satisfied previously-existing but unpaid support. Steven asked further that the 1979 support order be vacated as of June 1, 1984, the date when the child began to live with Steven. Steven also asked that the original 1976 New York dissolution decree be modified to award him sole custody of the child effective June 1, 1984, to terminate his support obligation effective June 1, 1984, and to impose a support obligation on Margaret from June 1, 1984, until the date of the child's eighteenth birthday. Margaret was served personally with a copy of the petition at her residence in Middletown, Rhode Island.
Margaret filed a motion to dismiss Steven's proceeding for lack of personal jurisdiction over her. The district court sustained *411 this motion, holding that Iowa courts had no personal jurisdiction over Margaret. In passing upon a question of personal jurisdiction, we accept the allegations of the petition as true. Larsen v. Scholl, 296 N.W.2d 785, 787 (Iowa 1980). But Steven has the burden to sustain the requisite jurisdiction; and when a prima facie case is established, Margaret, as the defendant, has the burden to produce evidence to rebut or overcome it. Id. While the trial court's findings have the force and effect of a jury verdict, we are not bound by its application of legal principles or conclusions of law. Id.
Steven contends the Iowa District Court has personal jurisdiction over Margaret. In order to make this determination, a two-step analysis is required. Id. We initially inquire as to whether a statute or rule of court authorizes an exercise of jurisdiction in this particular instance. Id. If this criteria is fulfilled, we then must determine whether this exercise of personal jurisdiction offends principles of due process. Id.
Steven maintains that there exists the requisite minimum contacts between Margaret and the State of Iowa in order to confer personal jurisdiction pursuant to Iowa Rule of Civil Procedure 56.2. Analysis of this question also entails analysis of the due process issue.
In a case similar to the one before us now, the U.S. Supreme Court stated:
[T]he constitutional standard for determining whether the State may enter a binding judgment against appellant here is ... [whether] a defendant "ha[s] certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'".... While the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff's forum of choice are, of course, to be considered,... an essential criterion in all cases is whether the "quality and nature" of the defendant's activity is such that it is "reasonable" and "fair" to require him to conduct his defense in that State..... Like any standard that requires a determination of "reasonableness," the "minimum contacts" test ... is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite "affiliating, circumstances" are present. .... We recognize that this determination is one in which few answers will be written "in black and white. The greys are dominant and even among them the shades are innumerable."
Kulko v. California Superior Court, 436 U.S. 84, 92, 436 U.S. 84, 98 S.Ct. 1690, 1696-97, 56 L.Ed.2d 132, 141 (1978).[1]
The court stated further in Kulko that we must look to "some act by which the defendant purposefully avails ... [her]self of the privilege of conducting activities within the forum state." Kulko, 436 U.S. at 94, 98 S.Ct. at 1698, 56 L.Ed.2d at 142 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958)).
We apply the above standard in light of five factors, the first three being the most important:
(1) the quantity of the contacts;
(2) the nature and quality of the contacts;
(3) the source and connection of the cause of action with those contacts;
(4) the interest of the forum state; and
(5) the convenience of the parties.
Larsen, 296 N.W.2d at 788.
Steven and Margaret were married in Iowa on April 21, 1967. Nathan was born on November 15, 1967. The parties moved to New York in 1973. Divorce proceedings were initiated in New York in 1976. The parties were divorced that same year. *412 Margaret obtained custody of the child and child support of $60 a week. Margaret and the child moved to Rhode Island. In 1979 Margaret initiated a uniform support proceeding in New York, resulting in an order requiring Steven to pay $60 a week child support. Steven moved to Iowa in 1980, and Nathan joined him in June of 1984. Margaret yet resides in Rhode Island and has had no contact in Iowa since 1973.
As the court noted in the Kulko case: [B]asic considerations of fairness point decisively in favor of appellant's state of domicile as the proper forum for adjudication of this case.... [A]ppellant did no more than acquiesce in the stated preference of one of his children to live with her mother in California. This single act is surely not one that a reasonable parent would expect to result in the substantial financial burden and personal strain of litigating a child-support suit in a forum 3,000 miles away, and we therefore see no basis on which it can be said that appellant could reasonably have anticipated being "haled before a (California) court," Shaffer v. Heitner, 433 U.S. [186] at 216, 53 L.Ed.2d 683, 97 S.Ct. 2569 [2586]. To make jurisdiction in a case such as this turn on whether appellant bought his daughter her ticket or instead unsuccessfully sought to prevent her departure would impose an unreasonable burden on family relations, and one wholly unjustified by the "quality and nature" of appellant's activities in or relating to the State of California.
Kulko, 436 U.S. at 97-98, 98 S.Ct. at 1699-1700, 56 L.Ed.2d at 145.
When we evaluate the jurisdiction sought over Margaret in the context of constitutional due process, keeping before us the five factors set forth above, we find there are insufficient minimum contacts to confer personal jurisdiction on the district court pursuant to Iowa Rule of Civil Procedure 56.2.
Steven also argues that jurisdiction exists pursuant to Iowa Code section 598A.3(1)(b). This chapter concerns adoption of the Uniform Child Custody Jurisdiction Act. The custody of Nathan is no longer in issue.
Steven also asserts jurisdiction exists pursuant to Iowa Code section 252B.12, or, in the alternative, Iowa Rule of Civil Procedure 56.2. Iowa Code section 252B.12 does not confer personal jurisdiction over the defendant in this case. This is not "an action brought to establish paternity or to establish or enforce a child support obligation." Iowa Code § 252B.12. Rather, it is an action (1) to vacate the New York order of June 5, 1979, (2) to declare unenforceable accrued support payment on the grounds of waiver and laches, (3) to receive credit for support he gave Nathan against the court-ordered support, and (4) modification of the New York decree vesting custody of Nathan in him and child support from the date he obtained physical custody (June 1, 1984). Nathan at the time of the filing of the petition was twenty years of age. He does not qualify as a "child" as that term is defined in section 252B.1(1).
For the above reasons, we affirm the decision of the district court sustaining Margaret's motion to dismiss.
AFFIRMED.
NOTES
[1] In Kulko, the U.S. Supreme court was called upon to determine whether a California court had personal jurisdiction over a nonresident, nondomiciliary parent of a minor child domiciled within California. Id. 436 U.S. at 86, 98 S.Ct. at 1694, 56 L.Ed.2d at 137. The court found the contact with the state (a three-day layover en route to Korea, at which time the parties were married) was too tenuous to fulfill constitutional requirements. Id. at 86-87, 98 S.Ct. at 1694, 56 L.Ed.2d at 137-38. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618579/ | 303 S.W.3d 523 (2010)
STATE ex rel. Andrew LYONS, Petitioner,
v.
George LOMBARDI and Chris Koster,[1] Respondents.
No. SC 88625.
Supreme Court of Missouri, En Banc.
January 26, 2010.
*525 Frederick A. Duchardt, Jr., Trimble, for petitioner.
Chris Koster, Atty. Gen., Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, for respondents.
PER CURIAM.
Overview
Andrew Lyons was convicted of first degree murder and sentenced to death for the killing of his estranged girlfriend. The sentence was affirmed by this Court. State v. Lyons, 951 S.W.2d 584 (Mo. banc 1997).[2] Claiming he is mentally retarded, Lyons files this petition in mandamus as provided in In re Competency of Parkus, 219 S.W.3d 250, 254 (Mo. banc 2007). The Court appointed a master, who reports that the evidence supports Lyons' claim.[3] This Court finds that the master's findings and conclusions are supported by substantial evidence.
The Supreme Court of the United States has determined that the United States Constitution prohibits the execution of a mentally retarded person such as Lyons. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). A permanent writ of mandamus will issue to prohibit Lyons' execution. In addition, the Court will recall its last mandate in Lyons, set aside Lyons' sentence of death as to his estranged girlfriend, and resentence Lyons for that offense to life imprisonment without eligibility for probation, parole, or release except by act of the governor. See Parkus at 254.
Standard of review
The habeas corpus petitioner has the burden of proof to show that he is entitled to habeas corpus relief. State ex rel. Nixon v. Jaynes, 73 S.W.3d 623, 624 (Mo. banc 2002). Where the master has the opportunity to view and judge the credibility of witnesses, the findings and conclusions of the master are accorded the weight and deference given to trial courts in court-tried cases. State ex rel. Winfield v. Roper, 292 S.W.3d 909, 910 (Mo. banc 2009). In such cases, the master's findings and conclusions will be sustained by this *526 Court unless there is no substantial evidence to support them, they are against the weight of the evidence, or they erroneously declare or apply the law. This Court should exercise the power to set aside the findings and conclusions on the ground that they are against the weight of the evidence with caution and with a firm belief that the conclusions are wrong. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Facts
Lyons seeks to prove that he is mentally retarded. The master received testimony from four of his witnesses and a witness presented by the state. In addition, the master received numerous exhibits, including, in part, on Lyons' behalf, reports of other experts, limited school records, and other materials from Lyons' relatives describing his experiences growing up. The state presented other exhibits.
Having received all the evidence, the master concluded that Lyons had met the definition of "mental retardation" contained in section 565.030.6, RSMo Supp. 2008. He concluded Lyons' IQ was in a range of 61 to 70; that Lyons' had continual extensive related deficits in two adaptive behaviors communications and functional academics; and that these conditions were manifested and documented before Lyons was 18 years of age.
Discussion
Section 565.030.6 provides:
As used in [section 565.030], the terms "mental retardation" or "mentally retarded" refer to a condition involving substantial limitations in general functioning characterized by significantly subaverage intellectual functioning with continual extensive related deficits and limitations in two or more adaptive behaviors such as communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work, which conditions are manifested and documented before eighteen years of age.
The master carefully considered each element of the definition.
Significantly Subaverage Intellectual Functioning
First, he sought to determine whether Lyons had significantly subaverage intellectual functioning. Although the statute does not specify any particular method for proving this element, the parties presented evidence of Lyons' IQ scores.[4] There were four IQ tests. The results ranged from 61 to 84.
Lyons' expert presented evidence that reconciled the variance. The master concluded that this expert's testimony was the most credible and concluded that Lyons' IQ fell within the range of 61 to 70.[5] There is substantial evidence to support the master's conclusion and finding of significantly subaverage intellectual functioning.
Adaptive Behaviors
Next, the master reviewed the evidence as to Lyons' adaptive behaviors. He found evidence to support the behaviors of communication and functional academics.
With respect to communication, the master noted the evidence of the difficulty Lyons' attorneys and some of Lyons' experts *527 had communicating with him.[6] The family testimony also characterized Lyons as a loner, someone who kept to himself, was quiet, withdrawn, and unwilling to engage in conversations except to smile, and who became nauseated by having to get ready for school. The evidence also noted Lyons' inability to read, write, or spell.
With respect to functional academics, the master noted the limited school records. They indicated only failing or incomplete grades and that Lyons was in the 10th grade for three consecutive years. His Iowa Basic Skills Test placed Lyons in the bottom two percent. The family evidence indicated Lyons was in special education classes and was "slow" in reading and mathematics.
The foregoing evidence supports the master's conclusion and finding of continual extensive related deficits and limitations in two or more adaptive behaviors related to his significantly subaverage intellectual functioning.[7]
Conditions Being Manifested And Documented Before Age 18
Finally, the master concluded that these conditions were manifested and documented before 18 years of age. Although there is evidence, as noted earlier, that Lyons manifested these conditions before age 18, the state contends there was insufficient documentation of these conditions. The state vigorously notes the lack of an IQ test result from prior to age 18 and the scant school records and other evidence with respect to the adaptive behaviors.
Documentation, as with any other fact, is a matter of proof. In reaching his conclusion, the master was entitled to make reasonable inferences from the evidence. A purpose of requiring documentation is to diminish the possibility a defendant will fabricate or exaggerate the symptoms of mental retardation to avoid punishment. The records that Lyons presented and the testimony received are sufficient for the master to conclude that Lyons' conditions were not a recent fabrication and that they were documented prior to Lyons attaining 18 years of age.
Conclusion
This Court issues its permanent writ of mandamus to prohibit Lyons' execution. In addition, the Court will recall its last mandate in Lyons, set aside Lyons' sentence of death as to his estranged girlfriend, and resentence Lyons for that offense to life imprisonment without eligibility for probation, parole, or release except by act of the governor.
All concur.
NOTES
[1] Since this case was filed, a new director of corrections and a new attorney general have taken office. Their names are substituted as provided in Rule 52.13(d).
[2] Lyons originally was convicted of two counts of murder and sentenced to death on each count. This Court affirmed both death sentences. State v. Lyons, 951 S.W.2d 584 (Mo. banc 1997). In August 2007, as required by Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), this Court set aside the death sentence for one of the murders because the jury failed to set out findings necessary to impose the death penalty. See State v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003).
[3] The Court expresses its appreciation to the Honorable Michael D. Burton, Judge, 21st Judicial Circuit, for his service as master in this case.
[4] See Diagnostic and Statistical Manual of Mental Disorders, Fourth edition, p. 39 ("significantly subaverage intellectual functioning" for purposes of mental retardation is an IQ of "about 70 or below").
[5] The state contends that the master discounted the higher scores, in part, because of the "Flynn effect," but the master specifically states his determination does not include the "Flynn effect." See the master's report at p. 8.
[6] Lyons' trial was delayed for more than two years because of a finding he was not competent to stand trial.
[7] The master also noted significant deficits in the behaviors of home living, social skills, and leisure but found they were not sufficient to meet the statute's requirements. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618573/ | 38 So. 3d 904 (2010)
STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES in the Interest of B.A.
No. 09-CA-638.
Court of Appeal of Louisiana, Fifth Circuit.
March 9, 2010.
*905 Natacha M. Hutchinson, Attorney at Law, New Orleans, LA, for Parent/Appellant.
Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, Joseph R. McMahon, Jr., Emilia L. Salas, Jeffrey G. Lagarde, Assistant District Attorneys, Juvenile *906 Court, Harvey, LA, for State of Louisiana/Appellee.
Melissa W. Berniard, Attorney at Law, Harvey, LA, for Minor Child B.A., Appellee.
Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
JUDE G. GRAVOIS, Judge.
In this child in need of care proceeding, appellant S.M.[1] appeals a judgment that adjudicated his minor child, B.A., in need of care as to him. After thoroughly reviewing the applicable law and the record, for the reasons that follow, we reverse the trial court's judgment finding B.A. to be a child in need of care as to his biological father, S.M., and dismiss the petition as to S.M.
FACTS AND PROCEDURAL HISTORY
B.A., the minor child, was born on February 25, 2008 to B.J., whose boyfriend, D.A., Sr., signed the birth certificate as the child's father. Because B.A. was born drug-affected, he was placed into foster care immediately following his birth and release from the hospital, along with his one-year-old brother, D.A., Jr., pursuant to an Instanter Order filed on February 28, 2008.[2] The District Attorney filed a Petition for Children in Need of Care on March 27, 2008 for both children as to mother, B.J., and their father, D.A., Sr.[3] Meanwhile, their mother, B.J., entered residential treatment for drug addiction and behavioral therapy for other issues that prevented her from parenting her sons. D.A., Sr., in the meantime, was incarcerated on drug charges.
Approximately seven months after B.A.'s birth, in June of 2008, paternity testing revealed that D.A., Sr. was not B.A.'s biological father. Sometime in August of 2008, B.A.'s mother, B.J., told her case workers with the Office of Community Services (OCS) that S.M. might be B.A.'s biological father. On October 30, 2008, OCS contacted S.M. with the allegation of paternity. He proceeded to provide OCS with a DNA sample in November of 2008. The DNA test results dated November 18, 2008 revealed S.M. to be the biological father of B.A.
S.M. appeared at a hearing in the case in Juvenile Court on December 9, 2008 without an attorney and without a petition having been filed as to him. At the hearing, S.M. admitted to having a casual sexual relationship with B.J. around the time of B.A.'s conception. He testified that he wanted custody of B.A. and described his employment, housing and available family support. He stated that he was currently living in New Orleans East, having previously lived in Avondale at a specific address given by him. He said he knew when B.J. was pregnant that he could possibly be the baby's father. B.J. told him, however, that he was not the baby's father. B.J. did not tell him when the baby was born and he did not know the baby was in foster care until B.J. contacted him sometime during the summer of 2008.
Case workers from the Infant Team and OCS testified at this hearing that S.M. was cooperating fully with them and was actively participating in their recommended case plan.
*907 On December 10, 2008, the day after this hearing, the District Attorney filed a Child in Need of Care petition alleging that B.A. was in need of care as to S.M. The record indicates that S.M. was not served with this Petition because the court had the wrong address for him.[4] S.M. did not appear in court for a hearing on January 6, 2009 but did appear for the adjudication hearing on March 3, 2009. The adjudication hearing was continued, as to him, until March 24, 2009.
On March 20, 2009, counsel for S.M. filed a Motion to Continue, Motion to Dismiss, and an Exception of Vagueness, all of which were in due course denied by the trial court. On March 24, 2009, the juvenile court conducted an adjudication hearing on the child in need of care petition as to S.M. After hearing testimony from S.M., B.J., the OCS caseworker, and B.A.'s foster mother, the juvenile judge adjudicated B.A. in need of care as to S.M. The judge found that S.M.'s failure to contact B.J. while she was pregnant and failure to provide financial support to her both while pregnant and after the baby was born were inexcusable. She found that at the very least, after August of 2008, when B.J. told him he could be B.A.'s father, S.M. inexcusably failed to contact OCS regarding his possible paternity and moreover failed to take any steps to involve himself in the baby's life until contacted by OCS in October of 2008. The court also chastised OCS for not being more prompt in contacting S.M. regarding a paternity test once B.J. told case workers in August of 2008 that S.M. was possibly B.A.'s father.
At the same hearing, immediately after pronouncing the adjudication, the trial court took up the matter of custody. The trial court then heard from case workers about S.M.'s continued cooperation with the case plan and that they had progressed to the point of S.M. having an unsupervised overnight visit with B.A. The judge then ruled that B.A. would continue to have unsupervised visits with S.M., but that legal custody would remain with OSC at that point.
Another hearing was held on April 28, 2009, wherein the court granted full custody of B.A. to S.M., subject to three additional months of supervision by OCS to ensure a smooth transition.[5]
On May 12, 2009, S.M. appealed the juvenile court's adjudication of March 28, 2009, its denial of his motion to dismiss the Petition, and the disposition ruling of April 28, 2009 that ordered three additional months of supervision.
ASSIGNMENTS OF ERROR
On appeal, S.M. argues five assignments of error:
1. The trial court erred when it denied S.M.'s Motion to Dismiss as the Petition to Adjudicate was insufficient on its face and therefore deficient under the rules as stated in the Children's Code.
2. The trial court erred when it denied S.M.'s objections to the vagueness of the petition as the petition did not set forth facts against which S.M. could defend.
3. The trial court erred when it proceeded with the hearing despite the lack of service on S.M. and the failure of S.M. to receive the appropriate *908 notices, therefore violating S.M.'s constitutional rights.
4. The trial court erred when it granted the District Attorney's Petition to Adjudicate finding S.M. guilty of neglect.
5. The trial court erred when it continued jurisdiction of the juvenile court at the disposition hearing instead of dismissing the case.
APPLICABLE LAW
A child in need of care proceeding is governed by the Children's Code, article 601, et seq. LSA-Ch.C. art. 603 defines "neglect" as "the refusal or unreasonable failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of the child, as a result of which the child's physical, mental, or emotional health and safety is substantially threatened or impaired. Neglect includes prenatal neglect...."
The state shall have the burden to prove the allegations of the petition by a preponderance of evidence. LSA-Ch.C. art. 665. In cases involving the custody of children, the trial court is vested with a vast amount of discretion. State ex rel. AR, 99-0813 (La.App. 1 Cir. 9/24/99), 754 So. 2d 1073.
DISCUSSION ON ASSIGNMENTS OF ERROR
Insufficiency and vagueness of petition
In his first two assignments of error, S.M. argues that the trial court erred in denying his Motion to Dismiss, arguing that the Petition was insufficient on its face and therefore deficient under the rules as stated in the Children's Code, and further that the trial court erred in denying his objections as to the vagueness of the petition. S.M. cites LSA-Ch.C. art. 657, which states that "all objections to the proceedings, including objections based on defects in the petition and defenses capable of determination as a matter of law, may be raised by a motion to dismiss."
S.M. objected to the Petition on the grounds that the allegations contained therein were insufficient and too vague to defend. He argued that the petition failed to comply with LSA-Ch.C. art. 634, which requires that the petition shall set forth with specificity "[f]acts which show that the child is a child in need of care, including the acts or omissions of either parent which caused or contributed to the child's condition." The judge denied the motion, finding that S.M. was sufficiently aware of the allegations against him to defend them.
The Petition filed on December 10, 2008 relative to S.M. stated that
"[B.A.] is a CHILD IN NEED OF CARE as to his father, [S.M.], because the child is the victim of neglect, all occurring from February 25, 208[sic] to present, all as within violation of Children's Code Art 606(A)(2)."
S.M. argues that the insufficiency and vagueness of the petition did not provide him with sufficient information to prepare his defense, including determining which witnesses or what evidence to produce at the adjudication hearing on March 24, 2009.
The petition in this particular case was obviously both deficient and vague. It alleged no specific facts, acts or omissions of S.M. that caused or contributed to the child's condition. The petition merely alleges that the child was the victim of S.M.'s neglect, which is a conclusion, not a fact.
We find, however, that S.M. was not prejudiced by the deficiencies in the petition. He attended the December 9, 2008 hearing, albeit before he was named in a petition and before he had hired counsel. At that hearing, during his testimony, *909 the trial judge informed him of the basis for the neglect allegation, which was that at some point he knew that B.J. was pregnant, that there was a possibility the baby was his, that he did not contact her at all after he knew the baby was born to inquire about him, and that he did not provide any financial support to B.J. during her pregnancy or to the baby after he was born. It is clear from the transcript of the adjudication hearing held on March 24, 2009 that S.M. was aware of the allegations and was able to testify and cross-examine the witnesses about them. Accordingly, we decline to find that, with respect to this particular case, the trial court's denial of S.M.'s allegations of deficiency and vagueness of the petition constitutes reversible error.
Lack of service and notice
In his third assignment of error, S.M. argues that the trial court erred when it proceeded with the adjudication hearing despite lack of service of the petition and the required accompanying notice on him. He argues, thus, that his constitutional rights were violated.
LSA-Ch.C. art. 639 provides that a notice shall be served with a petition and summons on every parent whose child is the subject of a child in need of care proceeding. This notice states, among other things, the consequences to a parent of the proceeding, that the parent has a right to counsel or appointed counsel if he cannot afford his own, and that a parent has the right to attend all hearings of his case and must attend as summoned, and the right to call witnesses on his behalf, and to question those witnesses brought against him.
There is no evidence in the record that S.M. was ever served with the petition and the required accompanying notice. S.M. testified that no one ever told him that he was entitled to counsel, hired or court-appointed, but that he decided to hire an attorney on his own. The transcripts of the various hearings are devoid of any advice to S.M. regarding his rights in the proceeding as outlined in LSA-Ch.C. art. 639.
The state argues in brief that at the hearing on January 6, 2009, at which S.M. was not present because the petition had been served at an incorrect address, the trial court appointed Mrs. Womble as his counsel, and she answered the petition with a general denial on his behalf, as per LSA-Ch.C. art. 649. Mrs. Womble was also the appointed attorney for B.J. and D.A., Sr., B.A.'s mother and legal father. At this time, the adjudication as to S.M. was set for hearing on March 3, 2009.
At the March 3, 2009 hearing, S.M. appeared and Mrs. Womble continued in her role as appointed counsel for him. She stated that she did not feel she had a conflict of interest representing the mother and S.M. but did feel a conflict existed regarding her continued representation of D.A., Sr., at which time another attorney was appointed to represent him. The State requested a continuance regarding the adjudication as to S.M., to which Mrs. Womble agreed and which the court granted. S.M. remained at the hearing and provided testimony.
We find that the trial court's appointment of Mrs. Womble as counsel for S.M. and its act of continuing the adjudication hearing until March 24, 2009, at which time S.M. appeared with counsel of his own choice, allowed S.M. to properly defend himself at the adjudication hearing. We do not hold that the trial court's actions in appointing counsel for S.M. and granting a continuance alone automatically cures the lack of service on a defendant with a child in need of care petition or provide the mandatory notice and advice of rights. In this case, however, it is clear *910 from the record that S.M. was able to fully defend himself and cross-examine the witnesses at the adjudication hearing. S.M. does not indicate what other witnesses he was prevented from calling in his defense. Accordingly, given the fact that S.M. was fully represented by retained counsel at the March 24, 2009 adjudication hearing, coupled with his voluntary appearance at the hearing and the extent of information and documentation provided to S.M. in advance of said hearing, we decline to find that, with respect to this particular case, the lack of service on S.M. with the petition and accompanying notice violated S.M.'s constitutional due process rights nor constitutes reversible error.
Merits of the adjudication
In his next assignment of error, S.M. argues that the trial court erred when it granted the District Attorney's Petition, finding that S.M. committed neglect of his son. For the following reasons, we agree with S.M. and reverse the judgment of adjudication.
S.M. did not dispute that he had had a casual sexual relationship with B.J. around the time of B.A.'s conception and that he knew there was a possibility he could be the child's father. He described how he met her in 2004 at a tattoo shop and that they became friends. He stated that they would meet up occasionally for sexual relations, but never had a one-on-one relationship. In his direct testimony, S.M. stated that he and B.J. met up once every two months or so. On cross-examination, he said that they met around three times per year over the four years that they were friends. B.J. testified that the meetings were more frequent but agreed they were sporadic and irregular in nature. She also testified that at this time she was living with D.A., Sr., her boyfriend.
S.M. testified that he did not know B.J. was pregnant until she called him sometime in the fall of 2007. He said he had no contact with her until she called again in February of 2008 before she gave birth. She testified that she was very "loaded" during that conversation and couldn't remember how it went or if she told him he could be the baby's father. S.M. testified that he suspected that B.J. used drugs, but had never seen her do so. He said he had no physical contact with her while she was pregnant and had no contact number for her.
S.M. testified that he next heard from B.J. while she was in residential drug treatment after the baby was born. Both S.M. and B.J. explained that she visited him at his house during the summer of 2008. During that visit, S.M. testified that he could tell that B.J. was using drugs. At that time, S.M. testified that B.J. told him he was not the baby's father. It was not until August of 2008 that B.J. told S.M. that he might be B.A.'s father and that the baby was in the State's custody. After B.J. told S.M. that he could be the baby's father, S.M. visited B.J. at her residential treatment facility, where she showed him pictures of B.A. She also told him that she told her case workers that he might be B.A.'s father, and that they would be contacting him. According to B.J., during that visit, she called her OCS case worker, Ms. Hunter, in S.M.'s presence to tell her that he could be B.A.'s father, and that S.M. and Hunter arranged a meeting. She testified that she gave his number to Ms. Hunter, her case worker at that time. S.M.'s testimony made no mention of a phone call with Ms. Hunter. B.J. noted that right after that visit, Hurricane Gustav came, which might have delayed OCS's call to S.M. She approved of S.M. receiving custody of B.A. S.M. admitted that he did not contact OCS, but waited for them to contact him, which they did on October 30, 2008. He proceeded to give OSC a DNA sample in November, and test *911 results dated November 18, 2008 revealed he was B.A.'s father.
S.M. explained that he did not intervene because B.J. had told him several times that the baby was not his. She asked him not to come by the house she shared with D.A., Sr. because she was afraid that might cause trouble. He explained that he didn't send her money while she was pregnant or afterwards because she had told him the baby was not his. He said that he never saw her while she was pregnant and did not know she had actually given birth until she visited him at his house during the summer of 2008. He said that she never told him he was possibly the baby's father until August of 2008, whereupon he visited her at her residential treatment facility.
At the hearing, B.J. confirmed that she had told S.M. several times that the baby was not his, both when she was pregnant and after the baby was born. She admitted that S.M. did not know she was using drugs while she was pregnant, though in fact she was. She stated that right after the baby was born, she was "pretty adamant" that the baby was D.A., Sr.'s. She said that the baby looked sort of like both men: D.A., Sr. is Puerto Rican and S.M. is African-American.
After learning he was in fact the baby's father, S.M. immediately requested visits with him. He met with the Infant Team, got a case plan, started seeing B.A. in supervised visits, and did everything he was supposed to do so he could get custody of his son. The case workers who testified at various hearings corroborated this testimony, stating that S.M. was "extremely compliant" and "fully cooperative," participating fully in the case plan and never missing an appointment. Moreover, case workers who observed S.M. with the baby all agreed that he was very sensitive to the baby's needs and placed those needs before his own, interacted with the baby very well, and understood the goals of the case plan and that it would take time for the baby to form a bond with him.
Kay Evans, the investigator with OCS who was on the case from the beginning, testified that B.J. never mentioned S.M. to her as a possible father of B.A. until the DNA results excluded D.A., Sr. as his father.
Tina Johnson, the case worker with OCS, stated that she was not on the case when B.A. was placed into foster care. She was given S.M.'s contact number by her former supervisor in October of 2008 as a possible father of B.A. She contacted him and thereafter he was fully cooperative. She had the opportunity to observe several supervised visits between S.M. and B.A, which she described as having gone very well. At the March 24, 2009 adjudication hearing, she stated that she saw no safety concerns about awarding S.M. custody of B.A. She also recommended dismissing the petition as to S.M. and awarding him full custody immediately.
We find that under the particular facts of this case, the trial judge abused her vast discretion in finding that S.M. neglected the infant B.A. As indicated above, LSA-Ch.C art 603 defines neglect as "the refusal or unreasonable failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment,... as a result of which the child's physical, mental, or emotional health and safety is substantially threatened or impaired." (Emphasis added.) It is apparent from the record that S.M. did not act unreasonably in his actions with respect to this particular child. He had only phone contact with B.J. while she was pregnant, and she consistently told him the child was not his at that time. She never asked him for any financial support, and in particular asked him not to come to her house to intervene. In light of B.J.'s testimony regarding *912 her drug use and behavior during the relevant times (unknown to S.M.) and her admission that she consistently maintained that D.A., Sr. was the baby's father until August of 2008 (at least as to S.M. and her case workers), we cannot fault his skepticism regarding the baby's paternity and his resultant inaction.
It is very interesting and telling to note that immediately after the judge adjudicated B.A. in need of care as to S.M., the focus of the hearing shifted to how well S.M. was following the case plan, and in particular how his success with the case plan had progressed to the point that the case worker was describing to the court a successful, recent overnight unsupervised visit between S.M. and B.A. The record further shows that a mere one month after being adjudicated neglectful, S.M. was awarded full custody of B.A. Indeed, one of the last minute entries in this record, made after S.M. received full custody of B.A., stated that B.A. was "thriving" in S.M.'s care.
This court fully understands and appreciates that the juvenile court must take a stern view of fathers who refuse to take responsibility for the children they have created and whose neglect results in their children being removed from their homes, and must adjudicate them accordingly. We find, however, that based on the evidence presented, S.M.'s lack of intervention when he knew of B.J.'s pregnancy and later after she told him of the baby's birth was not unreasonable. We further find that his lack of intervention even after August of 2008, when B.J. first told him he could be the father, was not unreasonable under the described circumstances in this particular case, and therefore does not constitute neglect as that term is defined in LSA-Ch.C. art. 603. Considering all of the particular facts and circumstances involved in this case, the trial court abused its vast discretion in adjudicating B.A. to be a child in need of care as to his father, S.M.
Continuing jurisdiction of the juvenile court
In his final assignment of error, S.M. argues that the trial court erred when it maintained continuing jurisdiction over the case at the disposition hearing on April 28, 2009 rather than dismissing the case. In light of our above reversal of the adjudication, this assignment of error is moot.
CONCLUSION
For the reasons expressed above, we reverse the trial court's adjudication that found B.A. to be a child in need of care regarding his father, S.M., and dismiss the petition as to S.M.
REVERSED.
NOTES
[1] The initials of the child and the parties are used to protect the identity of the minor child. Uniform Rules, Court of Appeal, Rule 5-2.
[2] This appeal concerns only S.M.'s adjudication relative to B.A. It does not concern D.A., Jr.
[3] D.A., Sr. is referred to as B.A.'s father because he was B.A.'s legal father until such time as paternity testing excluded him as the biological father.
[4] The lack of service on S.M was discussed by the Court at a hearing on January 6, 2009. The transcript of the December 9, 2008 hearing shows that S.M. reported that he had lived at a certain address in Avondale prior to his current residence in New Orleans East. The address for service was for a different address in Avondale than reported by S.M.
[5] In the appellate briefs, it is claimed that the case was eventually dismissed sometime in July of 2009. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618570/ | 915 F. Supp. 1381 (1996)
SIERRA CLUB, et al., Plaintiffs,
v.
Federico PENA, et al., Defendants.
No. 3:95 CV 7343.
United States District Court, N.D. Ohio, Western Division.
February 9, 1996.
*1382 *1383 *1384 *1385 Terry J. Lodge, Toledo, OH, for Sierra Club, Citizens for Buckeye Basin Parks, Inc., Friends of Mulberry Park, Rick B. Van Landingham, III, Gene Cook, Sandy James, Robert Wayne James, Helen Martin, Henry Martin, Emilie Martin, Edward Knapp, Anthony P. Urbanski, Jeannine Urbanski, Maryann Hollaway, Mara Hollaway.
Robin L. Juni, Department Of Justice, Land & Natural Resources Division, Environmental Defense Section, Washington, DC, Cecilia E. Kim, Department Of Justice, Environmental Protection Section, Washington, DC, Lourdes Santiago, Lawrence J. Kiroff, City Of Toledo, Department Of Law, Toledo, OH, Robin N. Michael, Andrea L. Berlowe, Department Of Justice, Environmental & Natural Resources Div., General Litigation Section, Washington, DC, Ralph J. Lewis, Office Of The U.S. Attorney, Toledo, OH, for Federico Pena, Robert D. Bush.
Robin L. Juni, Department of Justice, Land & Natural Resources Division, Environmental Defense Section, Washington, DC, Cecilia E. Kim, Department of Justice, Environmental Protection Section, Washington, DC, Lourdes Santiago, City of Toledo, Department of Law, Toledo, OH, Robin N. Michael, Andrea L. Berlowe, Department of Justice, Environmental & Natural Resources Div., General Litigation Section, Washington, DC, Ralph J. Lewis, Office of the U.S. Attorney, Toledo, OH, for Fred Hempel.
Andrew J. Ayers, Meister, Ayers & Meister, Toledo, OH, Fred J. Milligan, Jr., Law Offices Of Fred J. Milligan, Jr., Westerville, OH, for W. Ray Luce.
Robin L. Juni, Department of Justice, Land & Natural Resources Division, Environmental Defense Section, Washington, DC, Ellen Beth Leidner, George Michael Payton, Transportation Sec., Office Of The Attorney General, Columbus, OH, Cecilia E. Kim, Department of Justice, Environmental Protection Section, Washington, DC, Frederick C. Schoch, Office Of The Attorney General, Columbus, OH, for Jerry Wray.
John F. Hayward, Terrance K. Davis, Shumaker, Loop & Kendrick, Toledo, OH, for William Knight.
John D. Scouten, Mark S. Schmollinger, Lourdes Santiago, City of Toledo, Department Of Law, Toledo, OH, for Carleton S. Finkbeiner.
Robin L. Juni, Department of Justice, Land & Natural Resources Division, Environmental Defense Section, Washington, DC, Cecilia E. Kim, Department of Justice, Environmental Protection Section, Washington, DC, Lourdes Santiago, Lawrence J. Kiroff, City of Toledo, Department of Law, Toledo, OH, Andrea L. Berlowe, Department of Justice, Environmental & Natural Resources Div., General Litigation Section, Washington, DC, Ralph J. Lewis, Office of the U.S. Attorney, Toledo, OH, for Togo D. West, Jr.
MEMORANDUM OPINION
KATZ, District Judge.
This matter is before the Court on numerous Motions, which can be divided into four *1386 general categories: (1) Plaintiffs have filed a motion requesting authorization to file a second amended complaint; (2) Plaintiffs have filed a motion to order supplementation of the administrative record in this case, and have proffered such a supplement; (3) the various Defendants have filed numerous motions for summary judgment and/or dismissal of Plaintiffs' complaint; and (4) several nondispositive motions relating to administration and deadlines in this case are pending. For the following reasons, Plaintiffs' motion again to amend their complaint will be denied. Plaintiffs' proffered supplement will be admitted into the record. Defendants' motions for summary judgment will be granted. All other motions will be denied as moot.
BACKGROUND
The Sierra Club, along with several local individuals and organizations, brought this suit seeking to prevent the construction of an urban corridor development project known as the Buckeye Basin Greenbelt Project ("Project"). The named defendants, sued in their official capacities, are the Secretaries, Directors, and/or Administrators of the United States Department of Transportation ("USDOT"), the Advisory Council on Historic Preservation ("ACHP"), the Federal Highway Administration ("FHWA") and the Army Corps of Engineers ("the Corps") (collectively, "the Federal Defendants"); the Ohio Historical Preservation Office ("OHPO"), the Ohio Department of Transportation ("ODOT"), and the Ohio Environmental Protection Agency ("OEPA") (collectively, "the State Defendants"); and the Toledo Metro Area Council of Governments ("TMACOG"), and the Mayor of the City of Toledo ("Toledo" or "the City") (collectively, "the Municipal Defendants").
The Project is designed to provide commercial, industrial and residential development in North Toledo, with access to be provided by a new four-lane highway. There is some dispute as to what components constitute the Project. Plaintiffs state that it will consist of (1) a 3.6 mile parkway from the intersection of Manhattan Boulevard and Summit Street to Cherry Street ("Parkway"); (2) a paved bikeway paralleling the parkway, extending from Detwiler Park to Cherry Street ("Bikeway"); (3) a paved connection of the parkway through the Central Business District to the Anthony Wayne Trail ("CBD Connection"); (4) an extension of Champlain Street from its northeastern terminus to beyond Interstate 280 ("Champlain Extension"); and (5) developments including four industrial parks, an expansion of Forest Cemetery and Miracle Park, and possibly a prison ("Development Scheme"). Defendants, while not disputing that the City has contemplated all of the above construction projects, claim that the Project consists of only the Parkway, Bikeway, and Champlain Extension. Defendants believe and contend that the proposed CBD Connection and Development Scheme are projects separate and apart from the Buckeye Basin Greenbelt Parkway Project.
The Buckeye Basin Greenbelt Parkway Project was first proposed in 1972 and federal funding was first requested for the Project in 1974. The National Environmental Protection Act of 1970 ("NEPA") requires that an Environmental Impact Statement ("EIS") be filed before any major federal action significantly affecting the environment is undertaken. The FHWA delegated the preparation of the EIS to ODOT, which largely redelegated the actual preparation and performance of the environmental studies to the City and a management team appointed by Toledo's City Manager. A draft EIS for the Project was completed in 1981, and the final EIS was approved by FHWA on April 16, 1984.
Because the Buckeye Basin contains naturally-occurring wetlands, it is also subject to federal laws prohibiting federally subsidized construction in wetlands areas unless there is no practical alternative to such construction, and all practical measures to minimize harm to wetlands are taken. Before fill material can be placed in a wetland, the party seeking to fill the wetland generally must obtain a special permit, called a § 404 permit, from the Army Corps of Engineers, except that a general, nationwide permit authorizes the filling of isolated wetlands of less than ten acres in certain circumstances. The Corps determined in 1979 that the national permit *1387 covered the Buckeye Basin wetlands, and a § 404 permit was not required. Subsequent to the Corps' determination, the legal definition of "wetlands" changed, and, in 1988 the Corps determined that a § 404 permit was required. The City applied for such a permit in 1990; it was granted in 1994.
The Project is scheduled to span the construction seasons of 1996 and 1997, and be completed in mid-1998.
Plaintiffs have filed suit challenging the approval, funding and planned construction of the Project, especially the Parkway, Bikeway, and Champlain Street Extension. They allege numerous violations of NEPA; the Environmental Quality Improvement Act of 1970; the National Historic Preservation Act; the Intermodal Surface Transportation Efficiency Act ("ISTEA"); the Clean Water Act; and the Clean Air Act. On October 6, 1995, this Court denied Plaintiffs' motion for a preliminary injunction against the letting of contracts for the Project.
PLAINTIFFS' MOTION TO FILE AMENDED COMPLAINT
Plaintiffs have moved to file a second amended complaint adding five new claims against the Army Corps of Engineers. The Federal Defendants, ODOT, and the Municipal Defendants have filed opposition thereto. The Court freely grants a party leave to amend its pleadings "when justice so requires." Fed.R.Civ.P. 15(a). The disposition of a motion to amend is within the sound discretion of the trial court. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). Such a motion should be denied where the amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or would be futile. Crawford v. Roane, 53 F.3d 750, 753 (citing Ford v. Ford, 371 U.S. 187, 83 S. Ct. 273, 9 L. Ed. 2d 240 (1962); Marx v. Centran, 747 F.2d 1536, 1550 (6th Cir.1984), cert. denied, 471 U.S. 1125, 105 S. Ct. 2656, 86 L. Ed. 2d 273 (1985).
The Court finds that justice does not in this instance require that Plaintiffs be granted leave to amend their pleadings as they have moved to do. First, allowing Plaintiffs to amend their complaint could not result in any new or additional recovery for Plaintiffs, even if they were to prevail on their claims. Plaintiffs' proposed additional claims are based on the same administrative record as the original claims, and stand or fall with the original claims. If the Court determines that the administrative record is inadequate on Plaintiffs' original claims, the injunction requested by Plaintiffs must issue; if the Court determines that the administrative record is adequate on Plaintiffs' original claims, the injunction requested by Plaintiffs must be denied. Second, if the Court permits amendment of Plaintiffs' complaint at this late juncture, when four motions for summary judgment are pending, the ultimate disposition of the case could be delayed at significant cost to Defendants. If execution of the contracts at issue in this case is delayed for the months required for yet another round of motions for summary judgment and responses thereto, the Project might well be delayed into a third construction season. Third, the Court finds that most of Plaintiffs' proffered additional complaints are little more than restatements of Counts already contained in Plaintiffs' first amended complaint. Justice does not require this Court to permit amendment for rechauffé. Finally, based on the Court's determination, infra, that summary judgment for Defendants is appropriate in this case, the Court finds that Plaintiffs' proffered amendment would be futile.
Accordingly, Plaintiffs' motion for leave to amend their complaint (Doc. No. 149) is denied.
PLAINTIFFS' PROFFERED SUPPLEMENTATION
Plaintiffs have moved the Court to order the administrative record filed by Defendants supplemented by several additional records related to the Project. They have requested admission of administrative records maintained by OHPO and OEPA; additional Army Corps of Engineers documents; additional FHWA and ODOT records; the City of Toledo's Buckeye Basin Administrative Record; and the ACHP record. In connection with this motion, Plaintiffs have provided *1388 a proffer of exhibits containing most of the items Plaintiffs seek to have admitted.
The Defendants object to the introduction of this evidence. They have filed opposition to Plaintiffs' motion seeking to supplement the administrative record, and have moved to strike Plaintiffs' proffer. Defendants argue that the items proffered by Plaintiffs are not properly part of the record, and are irrelevant to the Court's review of the agencies' determinations. They claim also that admission of the extra materials will serve only to delay resolution of the case.
Judicial review of agency actions ordinarily is limited to the administrative record in existence, and the task of the reviewing court is to apply the appropriate standard of review to the record presented by the agency to the reviewing court. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S. Ct. 1598, 1606-1607, 84 L. Ed. 2d 643 (1985) (citing Camp v. Pitts, 411 U.S. 138, 142, 93 S. Ct. 1241, 1244, 36 L. Ed. 2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971)); FTC v. Owens-Corning Fiberglas Corp., 853 F.2d 458, 461 n. 5 (6th Cir.1988). The Sixth Circuit has held, however, that a reviewing court evaluating agency action may consider additional evidence to determine if the agency examined all the relevant factors to its decision. United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1428 (6th Cir.1991).
The Court finds that the equities in this case favor granting Plaintiffs' motion to supplement the record as to the items contained in Plaintiffs' proffer, and denying Plaintiffs' motion to supplement as to all other items. The items already submitted on the record cause no harm and may be helpful to the Court. Defendants will incur no additional cost or delay, because the items have already been provided by Plaintiffs. Because the case is being tried to the Court, the Defendants need not worry that a jury will misuse the evidence. The Court is able to recognize and disregard any portions of Plaintiffs' proffer that may be cumulative or irrelevant. The Court's consideration of the additional proffer will not turn the analysis into an exercise in de novo review.
The equities balance differently as to all other items requested by Plaintiffs. An order to supplement with any items not yet in the record could cause cost and delay to Defendants. Plaintiffs have not made a sufficient showing of "bad faith or improper behavior" as to justify such an affirmative order. See Citizens to Preserve Overton Park, 401 U.S. at 420, 91 S.Ct. at 825. Supplementation with those items will not be ordered.
Accordingly, Plaintiffs' motion to order supplementation of the administrative record (Doc. No. 109) is granted as to the items contained in Plaintiffs' proffer (Doc. Nos. 146 & 147), and denied as to all other matter. Defendants' motion to strike Plaintiffs' proffered record (Doc. No. 157) is denied.
MOTIONS FOR DISMISSAL OR SUMMARY JUDGMENT
There are now six pending motions for summary judgment or dismissal of Plaintiffs' complaint. The Federal Defendants have filed a motion for dismissal of Counts I, V and part of VIII of Plaintiffs' complaint, and a separate motion for summary judgment on all counts. ODOT has filed a motion for summary judgment on all counts. OHPO has filed a motion for summary judgment on all counts. The Municipal Defendants have filed a motion to dismiss and/or for summary judgment, and TMACOG has filed a separate motion for summary judgment on all counts.
Plaintiffs failed to respond to these motions by the deadline imposed by the Court, but have submitted opposition to each motion, and have moved for leave to file these oppositions. The Court now grants Plaintiffs' motion (Doc. No. 142) to file responses to the various dispositive motions in this case. Plaintiffs' motion to file a surreply to the Federal Defendants' reply in support of Defendants' motion for summary judgment (Doc. No. 160) is also granted.
Since there is significant overlap in the arguments raised by the Defendants in their various motions for summary judgment or dismissal, the Court addresses the parties' motions and arguments made therein collectively.
*1389 I. Challenges to the Court's Jurisdiction
A. Lack of Statutory Basis for Jurisdiction over Certain Claims
1. Count V: Claims under the Clean Air Act and the Intermodal Surface Transportation Efficiency Act
In Count V of their Complaint, Plaintiffs allege certain violations of the Clean Air Act, 42 U.S.C. §§ 7401 et seq., and the Intermodal Surface Transportation Efficiency Act of 1991, Pub.L. No. 102-240, 105 Stat. 1914.
The CAA directs the Environmental Protection Agency ("EPA") to establish national air quality standards setting forth acceptable levels of certain air pollutants. 42 U.S.C. § 7409. Areas where pollutant concentrations exceed the level set by the EPA are designated as "nonattainment areas." 42 U.S.C. § 7407(d). Under ISTEA, federal funds may not be programmed for any highway project in a nonattainment area that will result in a significant increase in carrying capacity for single-occupant vehicles unless the project is part of an approved congestion management system. 23 U.S.C. § 134(l). At the time the funding decisions here at issue were made, the Toledo metropolitan area was classified as a moderate nonattainment area. Plaintiffs claim that the Toledo area does not have an approved congestion management system, so federal funding of the Project is prohibited under ISTEA. Toledo was reclassified as an attainment area shortly after Plaintiffs' suit was filed.
Plaintiffs claim that Defendants violated CAA by failing to include the CBD Connector in a transportation improvement plan ("TIP") that conforms to the state implementation plan ("SIP") for congestion management as required by 42 U.S.C. § 7506(c).
Finally, Plaintiffs claim that Defendants failed to prepare a major investment study ("MIS") for the Project as required by 23 U.S.C. § 134.
a. Claim under the Clean Air Act
The Defendants have moved this Court to dismiss the claim Plaintiffs bring under the Clean Air Act, failure to include the CBD Connector in the TIP, on the ground that the statutory provision is inapplicable to the facts before the Court. The parties agree that every portion of the Project except the CBD Connector is included in a conforming TIP. Defendants argue that the CBD Connector is not part of the Project, and therefore was not required to be included in the TIP.
Plaintiffs respond that Defendants have improperly segmented the Project to exclude the CBD Connector, which ought properly to be included. The Court finds that the parties' arguments on this issue go to the merits of the casethe extent and components of the Projectrather than to the issue of whether the Court has jurisdiction to hear the merits.
A nonmerits disposition of this issue is, therefore, inappropriate. The Court has authority to address Plaintiffs' claim under the Clean Air Act on the merits.
b. Claims under the Intermodal Surface Transportation Efficiency Act
The remaining two claims in Count V arise under the Intermodal Surface Transportation Efficiency Act. The Defendants have urged this Court to dismiss Plaintiffs' claims brought under ISTEA on the ground that no private right of action under ISTEA exists. The issue of whether a private right of action under ISTEA exists is a question of first impression in this jurisdiction. There is little case law directly on point; this Court has discovered only one reported case in any federal jurisdiction addressing the issue.[1]
The issue, nonetheless, is governed by well-established principles of legislative construction that have been set forth by the Supreme Court and the Sixth Circuit in analogous instances. The touchstone of the *1390 analysis is congressional intent: whether Congress intended in passing the statute to provide a private right of action. Thompson v. Thompson, 484 U.S. 174, 179, 108 S. Ct. 513, 516, 98 L. Ed. 2d 512 (1988); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 91, 101 S. Ct. 1571, 1580, 67 L. Ed. 2d 750 (1981); Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S. Ct. 2479, 2485, 61 L. Ed. 2d 82 (1979).
The Supreme Court has provided several factors for courts to use in determining whether a private remedy is implicit in a statute not expressly providing one.
First, is the plaintiff "one of the class for whose especial benefit the statute was enacted" that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2088, 45 L. Ed. 2d 26 (1975) (citations omitted) (emphasis in original). The Sixth Circuit has consistently followed this four-factor test in determining whether such a right of action exists. See, e.g., Ellison v. Cocke County, Tenn., 63 F.3d 467, 470-71 (6th Cir.1995); Smith v. Dearborn Financial Servs., Inc., 982 F.2d 976, 979-80 (6th Cir.1993); American Fed'n of State, County & Mun. Employees Local 506 v. Private Indus. Council, 942 F.2d 376, 378 (6th Cir.1991); Kaiser v. United States Postal Serv., 908 F.2d 47, 50-52 (6th Cir.1990).
Under the Cort test as interpreted by subsequent decisions, the Court first looks at the language of the statute itself. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 16, 100 S. Ct. 242, 245, 62 L. Ed. 2d 146 (1979); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 13, 101 S. Ct. 2615, 2623, 69 L. Ed. 2d 435 (1981); Ellison, 63 F.3d at 470; Kaiser, 908 F.2d at 50. The question the Court asks "is not simply who would benefit from the act, but whether Congress intended to confer federal rights upon those beneficiaries." California v. Sierra Club, 451 U.S. 287, 294, 101 S. Ct. 1775, 1779, 68 L. Ed. 2d 101 (1981) (citation omitted). Plaintiffs have not pointed to any language in the Act from which the Court can find the "class of beneficiaries distinguishable from the general public" it must find in order to imply a private right of action. See Town of Secaucus v. United States Dept. of Transp., 889 F. Supp. 779, 786 (D.N.J.1995) (citing Rousseau v. City of Philadelphia, 589 F. Supp. 961, 961 (E.D.Pa.1984); United States v. FMC Corp., 717 F.2d 775, 781 (3rd Cir.1983).
Plaintiffs argue that any user of the resources protected by ISTEA is a beneficiary of the Act and can bring a claim thereunder. They cite to cases brought under other federal statutes in which citizens qua citizens were found to have standing to bring suit to enforce environmental legislation. Coalition Against a Raised Expressway, Inc. v. Dole, 835 F.2d 803 (11th Cir.1988); Citizens Comm. Against Interstate Route 675 v. Lewis, 542 F. Supp. 496, 570 (S.D.Ohio 1982); James River v. Richmond Metro. Auth., 359 F. Supp. 611, 625 (E.D.Va.1973).
Plaintiffs' reliance on these cases is misplaced. In each of the cases cited by Plaintiffs, the federal environmental statute at issue conferred a private right of action. The issue in those cases was whether the plaintiffs had standing to bring suit, given that the private right of action existed. The question of whether a given plaintiff has standing to bring suit under an enabling statute is different from the question of whether the right to bring suit exists in the first place. Nor have Plaintiffs shown ISTEA to contain any "right- or duty-creating language," which the Supreme Court has held is generally "the most accurate indicator of the propriety of implication of a cause of action." Cannon v. University of Chicago, 441 U.S. 677, 690 n. 13, 99 S. Ct. 1946, 1954 n. 13, 60 L. Ed. 2d 560 (1979).
Based on the dearth of evidence to the contrary, the Court must conclude that *1391 the language of ISTEA does not indicate Congressional intent to create a private cause of action.
The second factor the Court addresses is whether there is any external indication of legislative intent either to create a private right of action or to deny one. The Court examines the context of the statute "`with an eye toward determining Congress' perception of the law that it was shaping.'" Ellison, 63 F.3d at 467 (citing Thompson, 484 U.S. at 180, 108 S.Ct. at 516).
Again, Plaintiffs have pointed to nothing in the legislative history of ISTEA or the context surrounding its passage from which the Court can conclude that Congress intended to create a private right of action under the statute. The district court in Town of Secaucus held that ISTEA addresses environmental and social factors "by requiring the Secretary to make written findings that such factors were considered and that parties in interest were given an adequate opportunity to present their views," rather than by providing a private right of action under the statute. 889 F.Supp. at 788. This Court agrees. Plaintiffs have not shown that the second factor of the Cort test is satisfied.
The Court addresses the third and fourth factors of the Cort test only "if the first two factors give indication of congressional intent to create the remedy." Sierra Club, 451 U.S. at 298, 101 S.Ct. at 1781 (citing Touche Ross, 442 U.S. at 574-76, 99 S.Ct. at 2488-89). Since the first two factors indicate that Congress did not intend to provide a private remedy under ISTEA, the Court ends its inquiry here.
No private right of action exists under ISTEA. Accordingly, Plaintiffs' claims arising under ISTEA are dismissed for failure to state a claim upon which relief may be granted.
2. Count VIII: Claims under the Clean Water Act
In Count VIII of their amended complaint, Plaintiffs raise certain claims under the Clean Water Act, 33 U.S.C. §§ 1251 et seq., against Defendants. Plaintiffs claim that the City of Toledo and ODOT failed to obtain, and the Corps failed to require, proper permits for the Project.
Defendants have moved to dismiss on the grounds that suit can be brought under the Clean Water Act only to enforce nondiscretionary functions of the Administrator, so Plaintiffs can bring no claim upon which relief can be granted as to the issuance or denial of a § 404 permit. The citizens' suit provision of the Clean Water Act provides that a citizen may bring suit:
(1) against any person (including (i) the United States, and (ii) any other governmental agency ... ) who is alleged to be in violation of ... an effluent standard or limitation under this chapter ..., or
(2) against the Administrator [of the Environmental Protection Agency] where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.
33 U.S.C. § 1365(a). Defendants argue that no private right of action against the Army Corps of Engineers exists because Plaintiffs may not bring suit against the Corps under either of these provisions. Plaintiffs may not sue the Corps under § 1365(a)(1) because the Corps is not itself in violation of an effluent standard. Plaintiffs may not sue the Corps under § 1365(a)(2) because that clause authorizes suit only against the Administrator of the Environmental Protection Agency.
The Court agrees that Plaintiffs may not bring a suit de novo against the Corps under 33 U.S.C. § 1365(a). Plaintiffs' action is, however, properly brought under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., which gives the district court jurisdiction to review any "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704.
The fact that the citizens' suit provision of the Clean Water Act does not expressly authorize suit against the Corps for issuance of a § 404 permit does not change this result. If the Clean Water Act contained no citizens' suit provision at all, APA would apply exactly as it does to all other *1392 statutes that do not expressly authorize citizen suits. The fact that Congress has chosen with regard to Clean Water Act compliance to give citizens the authority in some circumstances to act as private attorneys general cannot be taken by the Court as an indication that Congress intended to cut off the additional remedies otherwise available to citizens for review of agency action.
Defendants have also referred the Court to several cases standing for the proposition that a decision of the Corps to deny a permit or not to bring an enforcement action is unreviewable. See, e.g., Missouri Coalition for the Env't v. Corps of Eng'rs, 866 F.2d 1025, 1032 n. 10 (8th Cir.1989); Harmon Cove Condominium Ass'n, Inc. v. Marsh, 815 F.2d 949, 951-52 (3d Cir.1987); Faust v. South Carolina State Highway Dep't, 721 F.2d 934 (4th Cir.1983). Defendants overlook the fundamental difference between the decision to deny a permit, which is unreviewable, and the decision to grant a permit, which is not. Section 404 provides that "the Secretary [of the Army] may issue permits" to discharge fill material into wetlands areas. 33 U.S.C. § 1344(a) (emphasis added). Since the Section's language is permissive, the decision of whether or not to issue an otherwise issuable permit is discretionary with the Secretary, and therefore not subject to review.
It is clear, however, that the district courts have jurisdiction under APA to review the Secretary's determination that a permit may issue. E.g., Conservation Law Found. v. Federal Highway Admin., 24 F.3d 1465, 1471 (1st Cir.1994); Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1521 (10th Cir.1992); Friends of the Earth v. Hintz, 800 F.2d 822, 831 (9th Cir.1986); Sierra Club v. United States Army Corps of Eng'rs, 772 F.2d 1043, 1050 (2d Cir.1985). This Court finds, therefore, that it has subject matter jurisdiction over the Clean Water Act claims raised in Count VIII of Plaintiffs' amended complaint.
B. Statute of Limitations
1. Existence of a Statute of Limitations
The Federal Defendants have argued that Plaintiffs' claims against them are barred by the statute of limitations. The statutes under which the Plaintiffs are suing do not contain express limitations periods. Defendants urge the Court to use the six-year limitations period for all suits brought against the United States, 28 U.S.C. § 2401(a). Defendants argue further that claims challenging the sufficiency of an EIS accrue and become ripe for review on the date that the final EIS receives final approval. Since the final EIS was approved on April 16, 1984, they argue, Plaintiffs' claims are time-barred.
The Plaintiffs respond that the Sixth Circuit has never held there to be a statute of limitations for claims brought under NEPA. Since there is no statute of limitations, they argue, the only time limitation on suits brought under NEPA is laches.
Federal courts, including the Sixth Circuit, historically have generally used the doctrine of laches to evaluate the timeliness of suits brought under NEPA without ever addressing the issue of whether the six-year statute of limitations applies to such actions. See, e.g., Apache Survival Coalition v. United States, 21 F.3d 895 (9th Cir.1994); Ecology Ctr. of Louisiana, Inc. v. Coleman, 515 F.2d 860 (5th Cir.1975); Steubing v. Brinegar, 511 F.2d 489 (2d Cir.1975); Environmental Defense Fund v. Tennessee Valley Auth., 468 F.2d 1164 (6th Cir.1972). The few courts to address the statute of limitations issue are split, with the majority finding that the six-year limitations period does not apply to suits brought under NEPA. Compare Park County Resource Council, Inc. v. United States Dept. of Agric., 817 F.2d 609, 616 (10th Cir.1987); Goshen Road Envt'l. Action v. United States Dept. of Agric., 891 F. Supp. 1126, 1132 (D.N.C.1995) (both holding that only laches may form the basis of a time bar to a NEPA action); with Humane Soc'y of the United States v. Hodel, 840 F.2d 45, 50 (D.C.Cir.1988); Zarrilli v. Weld, 875 F. Supp. 68, 72 (D.Mass.1995) (both holding that the six-year statute of limitations applies to NEPA actions).
This Court finds that the minority rule is the better reasoned. Plaintiffs' action *1393 is not brought under NEPA, which provides no private right of action. Correctly stated, Plaintiffs bring an action under the APA, which suit alleges violations of NEPA and other federal environmental protection statutes. Courts have consistently held that APA has a six-year statute of limitations pursuant to 28 U.S.C. § 2401(a). E.g., Village of Elk Grove Village v. Evans, 997 F.2d 328, 331 (7th Cir.1993); Wind River Mining Corp. v. United States, 946 F.2d 710, 712-13 (9th Cir.1991); Blassingame v. Secretary of the Navy, 811 F.2d 65, 70 (2d Cir.1987). Accordingly, all of Plaintiffs' claims against the Federal Defendants arising prior to June 8, 1989 are barred by the statute of limitations.
2. Application of the Statute of Limitations
The next issue is whether, and to what extent, any of Plaintiffs' claims arose after June 8, 1989.
Count I of Plaintiffs' complaint alleges violations of NEPA in the preparation of the original Environmental Impact Statement. A substantial majority of courts hold that a NEPA claim becomes ripe for review on the date the EIS is approved. E.g., Steubing v. Brinegar, 511 F.2d 489, 495 (2d Cir.1975); Zarrilli, 875 F.Supp. at 72.[2] The final EIS in this case was approved on April 16, 1984, over five years before the earliest date on which Plaintiffs' may raise a claim against the federal government under NEPA.
Plaintiffs claim that the approval of the EIS did not trigger the statute of limitations because it was invalid. The Court finds this sort of circular reasoning unconvincing. Plaintiffs would have the Court look to the merits of their claim in order to determine whether the statutory period had run, in order to determine whether it could look to the merits of Plaintiffs' claim. This the Court is not willing to do. The Court holds that the existence of an apparently valid EIS is sufficient to put Plaintiffs on notice that their cause of action has accrued, and therefore to trigger the statutory period.
Count I, therefore, must be dismissed as to the Federal Defendants. Since NEPA, by its own terms, applies only to federal agencies, no claim under NEPA can be brought against the non-Federal Defendants. Accordingly, Count I of Plaintiffs' Complaint is dismissed in its entirety.
Count II of Plaintiffs' Complaint alleges that the Defendants failed to supplement the EIS as required when changes that were relevant to environmental concerns were made to the original Project. The Project changes giving rise to Count II occurred between 1984 and 1995. The FHWA determined on January 19, 1995 that no supplemental EIS document was required. This claim accrued within the limitations period, and is not time-barred.
Count III of Plaintiffs' Complaint alleges that Defendant USDOT twice violated 23 U.S.C. § 138, which prohibits USDOT from approving any project that requires the use of any publicly owned land from a park, recreation area, or wildlife and waterfowl refuge, or any land from an historical site, unless there is no feasible and prudent alternative to the use of such land and the project includes all possible planning to minimize harm to the site. The first alleged violation occurred in 1984, when USDOT issued a Record of Decision ratifying the Project. The second alleged violation occurred in 1995 when USDOT re-evaluated the Project and determined that no new determination was needed.
Plaintiffs' complaint about the original Record of Decision is time-barred, as it accrued before June 8, 1989. Plaintiffs' second allegation arose after June 8, 1989, and is not barred by the applicable statute of limitations. Accordingly, Count III of Plaintiffs' Complaint is dismissed in part.
Count IV of Plaintiffs' Complaint alleges that the Defendant FHWA improperly delegated its responsibilities under the National Historic Preservation Act. The acts complained of in this Count all occurred as part *1394 of the preparation of the EIS, which was ratified in 1984. Plaintiffs' claims in this Count are time-barred. Accordingly, Count IV of Plaintiffs' Complaint is dismissed.
Count V of Plaintiffs' Complaint alleges violations of the Clean Air Act and ISTEA. The Court has dismissed the ISTEA claims, supra, for failure to state a claim on which relief can be granted. Plaintiff's claim arising under the Clean Air Act is Defendants' failure to include the CBD Connector in the Project. This claim arose in connection with preparation and approval of the EIS in 1984, and is time-barred. Accordingly, Count V of Plaintiffs' Complaint is dismissed.
Count VIII of Plaintiffs' Amended Complaint alleges violations of the Clean Water Act. The various acts of which Plaintiffs complain arose between 1977 and 1992. Plaintiffs' claims arising out of the Corps' 1979 determination that a special permit was not required, and the City's 1988 filling of the wetlands, are time barred, and the Court will not consider them. The § 404 permit here at issue was granted in July, 1992, so Plaintiffs' claims arising directly out of issuance of the permit are not barred by the statute of limitations. Accordingly, Count VIII of Plaintiffs' Amended Complaint is dismissed in part.
C. Laches
Remaining in the case are Count II of Plaintiffs' Complaint alleging failure to supplement the EIS; the portion of Count III of Plaintiffs' Complaint alleging USDOT's failure to make a needed redetermination of parklands or historic properties affected by the Project; and the portion Count VIII of Plaintiffs' Amended Complaint arising out of issuance of the § 404 permit. The claims in Counts II and III arose in 1995. The claim in Count VIII arose in 1992.
Defendants have moved the Court to dismiss these claims, as with all of Plaintiffs' other claims, on the ground of laches. Laches is a disfavored defense in environmental litigation because the outcome of the suit affects more people than the named plaintiffs. Environmental Defense Fund, 468 F.2d at 1182-83. In most of the cases in which laches has been applied to bar a suit alleging violations of NEPA, the project at issue was nearly completed. See, e.g., Ogunquit Village Corp. v. Davis, 553 F.2d 243, 245 (1st Cir.1977) (project completed); Save Our Wetlands, Inc. v. United States Army Corps of Eng'rs, 549 F.2d 1021, 1028 (5th Cir.) cert. denied, 434 U.S. 836, 98 S. Ct. 126, 54 L. Ed. 2d 98 (1977) (large portions of project substantially completed); Shiffler v. Schlesinger, 548 F.2d 96, 104 (3d Cir.1977) (project 85-90% complete); cf. Portland Audubon Soc'y v. Lujan, 884 F.2d 1233, 1241 (9th Cir.1989) (five-year delay in bringing suit did not give rise to a laches defense); Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 854 (9th Cir.1982) (eight-year delay in bringing suit did not give rise to a laches defense); City of Davis v. Coleman, 521 F.2d 661, 670 n. 11, 677-78 (9th Cir.1975) (laches held inapplicable when project was 50% completed).
Plaintiffs' remaining claims arose not more than three years before Plaintiffs brought suit. The Court cannot hold this period to be an unreasonable and unjustifiable delay in an area of the law in which laches is so disfavored.[3] Accordingly, the Court will address these three claims on their merits.
II. Arguments on the Merits
A. Summary Judgment Standard
As an initial matter, the Court sets forth the relative burdens of the parties once a motion for summary judgment is made. Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Of course, the moving party always bears the initial responsibility *1395 of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Id. 477 U.S. at 323, 106 S.Ct. at 2553. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
B. Standard of Review
Plaintiffs' action on the three remaining Counts arises under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. The scope of the Court's review under APA is limited; it may set aside the government's action in this case only if Defendants' failure to supplement the EIS or USDOT's failure to conduct a redetermination is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ... [or] without observance of procedure required by law." 5 U.S.C. § 706(2)(A) & (D). In making this determination, the Court reviews the administrative record. The record in this case consists of over ten thousand pages of documents created between 1975 and 1995 by the various Defendant agencies, supplemented by Plaintiffs' proffered exhibits.
C. Failure to Supplement the EIS
Plaintiffs claim that the Defendants' failure to supplement the EIS was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." A supplemental EIS is required if new information shows that the action will affect the quality of the human environment to a significant extent not already considered. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374, 109 S. Ct. 1851, 1859, 104 L. Ed. 2d 377 (1989). The federal regulations require a supplemental EIS when there are "substantial changes" to the original action or "significant new circumstances or information." 40 C.F.R. § 1502.9(c)(1). A supplemental EIS is not required if the changes result in a lessening of adverse impacts on the environment. 23 C.F.R. § 771.130(b)(1).
Plaintiffs have identified several developments that they claim are significant new circumstances or information requiring a supplemental EIS. They claim that the planned change to the Interstate 280 river crossing will have a significant environmental impact. They claim that the change in the Project specifying an above-ground causeway and altered wetlands fill mitigation plans require a supplemental EIS. They claim that the Defendants failed to consider all of the historical sites in the affected area.
The Court has reviewed the administrative record in this case. The record contains several hundred pages of government documents addressing specifically the question of whether a supplemental EIS is necessary. The determination contains a detailed evaluation of all the claims raised by Plaintiffs in this lawsuit. The record indicates that Plaintiffs raised each of their claims with Defendants during the administrative process, that each claim was carefully considered, and that each claim was rejected on its merits. The record indicates that Defendants' evaluation was far from the cursory and arbitrary process Plaintiffs claim it to be. For each of Plaintiffs' claims, there are at *1396 least ten pages, and in most cases twenty to thirty pages, of detailed scientific study by neutral professionals and explanation of why Defendants made the substantive decisions they did. The record reveals a decisionmaking process that was not merely adequate, but exemplary. On such a record, the Court cannot find that Defendants' determination not to supplement the EIS to be arbitrary and capricious or a violation of law.
Defendants' motion for summary judgment is, therefore, granted as to Count II of Plaintiffs' complaint.
D. Failure to Conduct a Redetermination under 23 U.S.C. § 138
The Federal Aid to Highways Act requires the Secretary of Transportation, before approving any project that requires the taking of certain designated properties, commonly known as § 4(f) properties,[4] to determine that there is no feasible and prudent alternative to taking the land, and that the project includes all possible planning to minimize harm to the affected site. 23 U.S.C. § 138. A determination was made in 1982, and de facto ratified in the April 16, 1984 Record of Decision, that there was no feasible and prudent alternative to taking the wetlands and other § 4(f) properties affected by the Project, and that the Project included all possible planning to minimize harm to the affected areas. That determination was made more than six years before Plaintiffs filed suit, and the Court's review of that determination is time barred, as discussed supra.
Plaintiffs claim also that the Defendants wrongfully decided on January 10, 1995 that no new § 4(f) sites were present and a redetermination was not needed. The Court has reviewed the portions of the administrative record pertaining to the Secretary's determination that a redetermination was not needed. As with the determination regarding the supplemental EIS, the Court finds that the Defendants heard and carefully considered each of the claims Plaintiffs raised during the administrative process, and then rejected each claim on its merits. For each of Plaintiffs' claimed sites, the Defendants provided a colorable explanation as to why that site did not need to be included in a redetermination.
Defendants' decisionmaking process is revealed by the record to have been neither arbitrary nor capricious, nor in violation of law. The Court cannot disturb Defendants' reasoned findings. Defendants' motion for summary judgment is, therefore, granted as to Count III of Plaintiffs' complaint.
E. Plaintiffs' Claims Under the Clean Water Act
Plaintiffs' final claim is that Defendants failed to comply with wetlands protection statutes. Federal law generally prohibits federally subsidized construction in wetlands areas unless there is no practical alternative to the construction, Exec. Order No. 11,990, 42 Fed.Reg. 26,961 (1977). Ordinarily, a special permit is granted along with a Statement of Findings or Record of Decision certifying that the proposed project complies with all legal requirements. 33 C.F.R. § 336.1(b)(7). There are circumstances, however, under which wetlands may be filled under a nationwide or regional general permit, without a special permit being required. Id.
At the time of the 1984 Record of Decision, the Army Corps of Engineers concluded that the wetlands affected by the Project might be filled under a nationwide general permit allowing the fill of certain isolated wetlands under ten acres. The Corps changed its position in 1990 and determined that a specific permit was required. In 1990, the City applied for a specific permit, which was approved in 1992.
Plaintiffs raise several objections to the application and approval process. First, they allege that ODOT and the Municipal Defendants *1397 committed sundry violations of the federal regulations in the application process. They claim that the 1990 application was not properly signed by an ODOT official, as required by 33 C.F.R. § 325.1(d)(7). They claim that ODOT failed to include on the application three acres of wetlands known as Manhattan Marsh. They claim that Defendants improperly failed to include the CBD Connector and Development Scheme in the application, although the federal regulations require an applicant for a special permit to delineate any projects reasonably related to the project for which a permit is sought, 33 C.F.R. § 325.1(d)(2). Finally, they claim that there was inadequate opportunity for public notice and comment on the amended application.
The Court's review of the 1990 application shows the signature of Bernard B. Hurst, then-director of ODOT, on the signature line. The administrative record and pleadings on file indicate that the Manhattan Marsh wetlands were filled, whether legally or not, before the 1990 application, and before the June 8, 1989 statute of limitations period. The Manhattan Marsh fill is not a proper subject for this Court's review. Plaintiffs' claims on these aspects of the application process are not meritorious.
Plaintiffs' claim that Defendants improperly failed to include the CBD Connector and Development Scheme in the application is another incarnation of Plaintiffs' oft-repeated claim that the Defendants improperly segmented the Project in order to avoid federal law and regulations. There is no merit to Plaintiffs' argument of improper segmentation. The CBD Connector connects logical termini. Both the CBD Connector and the Development Scheme have utility independent of the Project. Neither the CBD Connector nor the Development Scheme restricts consideration of alternatives for other reasonably foreseeable transportation improvements. See 23 C.F.R. § 771.111(f). The Court finds, therefore, that the CBD Connector and the development scheme are not part of the Project. These independent projects are not so closely connected to the Project as to require their mention in a § 404 permit application.
As to the opportunity for notice and comment, the Plaintiffs do not dispute that the language of the public notice satisfies the technical requirements of 33 C.F.R. § 325.3. Plaintiffs argue, however, that the "substance" of the notice was deficient, in that it did not adequately inform the populace that secondary impacts would cause the taking of all the wetlands. Plaintiffs' argument is wholly without merit. The Court need not choose in this instance between deciding whether Defendants must comply with the "letter" of the law, as Plaintiffs concede they have done, or the "spirit" of the law, which is public awareness of the potential environmental impacts of the proposed construction. The administrative record in this case indicates that both the general public and Plaintiffs specifically were intimately aware of the details of the Project and its potential environmental impacts. The administrative record is replete with letters from the public and from Plaintiffs; these communications indicate that the public both was aware of the Project's potential effects and knew how to submit comment on these effects to the appropriate officials. The Court finds that the opportunity for notice and comment was satisfied.
Plaintiffs' contention that the Corps improperly failed to issue new public notices for Defendants' revised applications in March and May, 1992 is similarly lacking merit. The district engineer is required to issue a revised public notice only "if in his view there is a change in the application data that would affect the public's review of the proposal." 33 C.F.R. § 325.2(a)(2). The main design change in the 1992 revised applications resulted in a 34% reduction in the amount of wetlands impacted by the Project. The district engineer's determination that this change would not affect the public's review of the proposal in the direction suggested by Plaintiffs was reasonable.
Plaintiffs next object that the Corps failed to refer in their public notice to the requirement that the Project receive water quality certification from OEPA, such reference being required by 33 C.F.R. § 325.3(a)(8). The Defendants concede that *1398 the required reference was omitted from the notice, but argue that the error was harmless, since OEPA in fact received notice that its certification would be requested. The Sixth Circuit has applied a harmless error rule in cases brought under the APA, where the mistake has no bearing on the ultimate decision or causes no prejudice. See Blackman v. Busey, 938 F.2d 659, 664 (6th Cir. 1991). The purpose of the water quality certification reference in the public notice is to notify OEPA that its certification will be needed. This notice requirement to OEPA was functionally satisfied. Plaintiffs have suggested no credible reason why omission of the reference to OEPA would affect the public's review of the proposal, or in any way change the comments made by them to the Corps. Therefore, the Court finds this omission to be harmless error.
Plaintiffs' next objection is that ODOT failed to show that no practical alternatives to the proposed roadway existed. This objection lacks merit. While Plaintiffs may disagree with Defendants' substantive determination that there were no practical alternatives to the proposed roadway, the administrative record indicates that several alternatives were proposed, weighed, and rejected on the merits. The administrative record on this one issue is lengthy, detailed, and exhibits a careful evaluation on the part of Defendants. The Court cannot hold ODOT's determination that no practical alternatives to the proposed roadway existed to be arbitrary.
Plaintiffs next object to the Project because the Corps issued a § 404 permit without first requiring a final, detailed mitigation implementation plan. The Defendants agree that the permit was authorized on the basis of general "mitigation goals," which will later become a detailed implementation plan. Defendants argue, and have cited to cases supporting the proposition, that a § 404 permit conditioned on future implementation of a mitigation plan does not violate the Clean Water Act. See National Wildlife Fed'n v. Whistler, 27 F.3d 1341, 1343, 1346 (8th Cir. 1994); Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1528-29 (10th Cir. 1992); Friends of the Earth v. Hintz, 800 F.2d 822, 825-26, 836-37 (9th Cir.1986). Plaintiffs have cited to neither regulations nor case law supporting their contention that mitigation plans must be final before a permit may issue. Accordingly, the Court cannot hold that the Corps' failure to require a detailed mitigation implementation plan was done in violation of the law.
Plaintiffs next object that the Corps failed to prepare a full-scale EIS, issuing instead an "Environmental Assessment/Finding of No Significant Impact." A federal agency must prepare an EIS for any "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). An EIS is not always required, however. In a recent case factually similar to this one, the Sixth Circuit has held that the statute speaks only to "significant adverse impacts, not beneficial impacts. If the agency reasonably concludes, on the basis of the environmental assessment, `that the project will have no significant adverse environmental consequences,' an environmental impact statement is not required." Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501, 504-05 (6th Cir.1995) (quoting Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 855 (9th Cir.1982)).
This is not to say that a significant effect requiring an EIS may not exist even if the federal agency believes that on balance the environmental effect of the project will be beneficial. Id. at 505-06. But, the Court in this case, like the Sixth Circuit in Fiery Gizzard, faces a situation in which the administrative record reveals that the federal agency conducted a detailed survey of the potentially affected areas, considered the impact of the planned project, and determined that there would be no significant adverse effects on the environment. Plaintiffs misrepresent the Statement of Findings produced by the Corps to the extent that they claim it contains several findings of "substantial adverse impacts." When read in context, the phrases quoted by Plaintiffs in their opposition to Defendants' motion for summary judgment prove to refer to either (a) temporary impacts during the construction phase of the Project only, or (b) effects that would occur in the absence of mitigation efforts. *1399 Every reference to adverse impacts concludes with the determination that there are no substantial long-term detrimental impacts from the Project. Every cited adverse impact is determined to be either minor or temporary, when considered with the Project's mitigation goals. The Court finds, therefore, that the Corps' determination was made in accordance with the applicable regulations and was neither arbitrary nor capricious.
Finally, Plaintiffs allege that the Corps violated its regulations for the protection of historic properties, 33 C.F.R. Part 325, App. C. Specifically, they claim that the Corps failed to make its historic properties findings available to the ACHP in the § 404 permit proceedings. The administrative record reveals, however, and Plaintiffs do not contest, that FHWA submitted its findings of "no adverse impact" to ACHP, findings that were identical to the findings produced by the Corps. Whatever technical violation there may have been in the fact that FHWA, rather than the Corps, submitted the papers to ACHP, it is clear that the purpose behind the statute was satisfied. ACHP had full opportunity to comment, and made an independent determination of "no adverse impact." The Corps' failure to submit its findings itself was harmless error.
Defendants' motion for summary judgment is granted as to Count VIII of Plaintiffs' amended complaint.
REMAINING MOTIONS
The Court's determination on the above motions for summary judgment effectively disposes of this case. All remaining pending motions are, therefore, denied as moot.
CONCLUSION
For the above reasons, Plaintiffs' motion for leave to amend their complaint (Doc. No. 149) is denied.
Plaintiffs' motion to order supplementation of the administrative record (Doc. No. 109) is granted as to the items contained in Plaintiffs' proffer (Doc. Nos. 146 & 147), and denied as to all other matter. Defendants' motion to strike Plaintiffs' proffered record (Doc. No. 157) is denied.
Plaintiffs' motion to file responses to the various dispositive motions in this case (Doc. No. 142) is granted. Plaintiffs' motion to file a surreply to the Federal Defendants' reply in support of Defendants' motion for summary judgment (Doc. No. 160) is also granted.
The portions of Count V of Plaintiffs' complaint containing claims arising under ISTEA are dismissed for failure to state a claim upon which relief may be granted. Counts I, IV, and V, and the portions of Counts III and VIII containing claims arising before June 8, 1989 are dismissed under the applicable statute of limitations.
The Defendants' motion for summary judgment is granted on Counts II, III, and VIII of Plaintiffs' Amended Complaint.
All other currently pending motions are denied as moot.
IT IS SO ORDERED.
NOTES
[1] Town of Secaucus v. United States Dept. of Transp., 889 F. Supp. 779, 786-89 (D.N.J.1995), presents an excellent discussion of the issue. There are, to be sure, a few reported decisions in which the district court allowed a private action under ISTEA without addressing the issue of whether such a right of action exists. See, e.g., Clairton Sportsmen's Club v. Pennsylvania Turnpike Comm'n, 882 F. Supp. 455 (W.D.Pa.1995); Conservation Law Foundation v. Federal Highway Admin., 827 F. Supp. 871 (D.R.I.1993).
[2] The minority hold that the claim accrues when the agency decision is made to proceed with the project, regardless of whether the EIS is approved. National Wildlife Fed'n v. Goldschmidt, 677 F.2d 259 (2d Cir.1982); Puerto Rico Conservation Foundation v. Larson, 797 F. Supp. 1074, 1078 (D.P.R.1992).
[3] Had some of Plaintiffs' earlier claims not been barred by the statute of limitations, however, the Court would have seriously considered barring those claims on grounds of laches. Even in the NEPA context, where laches is so disfavored, this Court has been unable to find a single case in which a court allowed a suit to be brought after almost twelve years' delay.
[4] A "§ 4(f)" property is a "public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State or local significance as so determined by such officials." 23 U.S.C. § 138; 49 U.S.C. § 303. The predecessor to the current statutes contained the above language in its section 4(f), and that phrase remains a common designation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618609/ | 38 So. 3d 817 (2010)
Robert Treat RAYNER, Appellant,
v.
AIRCRAFT SPRUCE-ADVANTAGE INC., et al., Appellee.
Nos. 5D09-635, 5D09-636.
District Court of Appeal of Florida, Fifth District.
June 18, 2010.
*818 Celene H. Humphries and Steven L. Brannock, of Brannock & Humphries, Tampa, and Jeffrey "Jack" Gordon, of Maney & Gordon, P.A., Tampa, for Appellant.
David B. Shelton, Charles P. Mitchell, and Steven I. Klein, of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellee.
LAWSON, J.
Robert Treat Rayner, plaintiff below, timely appeals a final summary judgment entered in favor of Irwin International, Inc., d/b/a Aircraft Spruce & Specialty Co. ("Specialty"), on statute of limitations grounds. Appellant argues that his August 25, 2008 amendment adding Specialty as a defendant should be considered timely under the relation back doctrine. The trial court found otherwise. Reviewing the matter de novo, we agree and affirm.
The underlying suit relates to an ultralight aircraft accident on August 18, 2001. Appellant alleged that his powered ultralight was being towed to altitude behind a plane owned by the Quest Air Soaring Center in Lake County, Florida, when the tow plane and/or its operator encountered problems and released the ultralight while it was in an uncontrolled descentcausing the ultralight to crash and Appellant to suffer severe, permanent injuries. Appellant attempted to deploy a parachute installed on the ultralight, but the parachute *819 failed to open in time to aid in the crash. Appellant had ordered the parachute through Specialty, a California-based distributor of aviation parts and pilot supplies owned by James and Elizabeth Irwin.
In May of 2004, Appellant timely filed suit only against Quest Air Soaring Center, Inc. The deadline for pursuing a cause of action sounding in tort under Florida's four-year statute of limitations was August 18, 2005. § 95.11(3)(e), Fla. Stat. (2009). Shortly before this deadline, Appellant's trial attorney inquired about Appellant's acquisition of the parachute, and received a response from James Irwin, the co-owner of Specialty, confirming that Appellant had ordered the parachute through Specialty. Irwin's July 31, 2005 letter explained that Specialty had placed the order for direct delivery from the manufacturer to Appellant, and that Specialty did not have liability insurance. Irwin encouraged Appellant to bring any claim related to the parachute only against the manufacturer, Ballistic Recovery Systems, Inc., but accurately and correctly identified his company, Specialty, as the distributor.
On August 8, 2005, Appellant, through prior counsel, sought leave to amend his complaint to add the parachute's manufacturer and distributor. However, the amended complaint incorrectly named another company co-owned by James Irwin as the distributor. The company actually sued was Aircraft-Spruce Advantage, Inc. ("Advantage"), an avionics installation company originally formed in 2003 and wholly-owned by Mark Krueger. After Appellant's crash, but before Appellant sought to amend his complaint, James Irwin purchased fifty percent of the stock of this company from Krueger. The two businesses operate separately, in different cities, in California.
After the statute of limitations expired, Appellant's motion for leave to amend was granted. And, ultimately, Advantagethe avionics installer owned by Irwin and Kruegerwas served with the suit. Although served after the statute of limitations had run, this suit was deemed timely as to Advantage, because: (1) an amended complaint naming a new party is deemed to have been filed on the date the motion for leave to amend is filed; and (2) it is the filing dateand not the service date which is controlling for limitations purposes. See Totura & Co., Inc. v. Williams, 754 So. 2d 671, 679-80 (Fla. 2000). The record is devoid of any evidence that Irwin, Specialty or Advantage had any knowledge that Advantage had been sued until Appellant served Advantage with the amended complaint. Shortly thereafter, Advantage timely answered discovery which stated that it was an "avionics installation facility in California," and that it had "no knowledge of this accident or this plaintiff."
It was years later before Appellant sought leave to amend to add the distributor, Specialty, as a defendant. The trial court allowed Specialty to be added to the suit, but then granted summary judgment in favor of Specialty, finding that it had not been timely sued. This appeal followed.
Appellant is correct that the filing of an amended complaint to correct a misnomer relates back to the filing of the original complaint. E.g., Cabot v. Clearwater Constr. Co., 89 So. 2d 662 (Fla.1956); Francese v. Tamarac Hosp. Corp., 504 So. 2d 546 (Fla. 4th DCA 1987); Hohl v. Croom Motorcross, Inc., 358 So. 2d 241 (Fla. 2d DCA 1978); Galuppi v. Viele, 232 So. 2d 408 (Fla. 4th DCA), cert. denied, 238 So. 2d 109 (Fla.1970). "The recurrent theme of these cases is that the amendment should be permitted to relate back where it merely changes the capacity in which a defendant has been sued." Johnson *820 v. Taylor Rental Ctr., Inc., 458 So. 2d 845, 846 (Fla. 2d DCA 1984). "More often than not, the original defendant lulled the plaintiff into believing that he had sued the correct party until after the statute of limitations expired." Id.
In the instant case, Appellant sought to do more than merely "correct a misnomer," as asserted in Appellant's motion to amend. Rather, Appellant sought to bring in an entirely new party years after the statute of limitations expired. The rule[1] which permits the relation back of amended pleadings generally does not apply where a new party is added. Id.; see also, Patel v. School Bd. of Volusia County, 813 So. 2d 135 (Fla. 5th DCA 2002); Troso v. Fla. Ins. Guar. Assoc., Inc., 538 So. 2d 103 (Fla. 4th DCA 1989); Lindsey v. H.H. Raulerson Junior Mem'l Hosp., 505 So. 2d 577 (Fla. 4th DCA 1987); Louis v. South Broward Hosp. Dist., 353 So. 2d 562 (Fla. 4th DCA 1977), cert. dism., 359 So. 2d 1217 (Fla.1978).
An exception to this general rule has been created by Florida's district courts for separate parties with a sufficient "identity of interest," such that the "addition will not prejudice the new party." Arnwine v. Huntington Nat. Bank, N.A., 818 So. 2d 621, 624 (Fla. 2d DCA 2002); see also, Darden v. Beverly Health & Rehab., 763 So.2d, 542, 542-43 (Fla. 5th DCA 2000); Schwartz v. Wilt Chamberlain's of Boca Raton, Ltd., 725 So. 2d 451, 453 (Fla. 4th DCA 1999); Kozich v. Shahady, 702 So. 2d 1289, 1291 (Fla. 4th DCA 1997); Michelin Reifenwerke, A.G. v. Roose, 462 So. 2d 54, 57 (Fla. 4th DCA 1984). This exception is usually applied when the new party "`knew or should have known that the plaintiff had made a mistake ... as concerns the correct identity of the defendant so that the added party was deemed to have suffered no prejudice by being tardily brought in or substituted as a party.'" Arnwine, 818 So.2d at 624 (citing Kozich) (quoting Michelin Reifenwerke, 462 So.2d at 57). Our review of these cases convinces us that lack of prejudice, in this context, requires a showing that the new party had knowledge of the lawsuit prior to expiration of the statute of limitations. As explained in Kozich, the exception allowing the late addition of a party having a sufficient identity of interest to a party timely sued "applies where: `[t]he newly added party had early knowledge of the litigation ... prior to the running of the Statute....'" Id. at 1291 (quoting Michelin Reifenwerke, 462 So.2d at 57) (emphasis added).
In this case, the record shows that Specialty (the distributor) was not aware of the suit against Advantage (the avionics installer), until after the statute of limitations had run. Appellant argues that lack of prejudice is demonstrated because Specialty was placed on notice that it might be sued shortly before the statute of limitations expired. As we explained in Patel: "[a] claim is not necessarily a lawsuit ... [and it] does not follow that a law suit will always be filed [following notice of a claim]." 813 So.2d at 136. In Patel, our court rejected the argument that notice of a potential claim is sufficient to support application of the relation back doctrine in this context. It is knowledge of the litigation itself which puts a person on notice of the need to defend against the lawsuit. Id.; accord Kozich; Michelin Reifenwerke; cf. Gray v. Executive Drywall, Inc., 520 So. 2d 619 (Fla. 2d DCA 1988) *821 (disagreeing with Michelin Reifenwerke, and opining that even knowledge of litigation against a party with some identity of interest prior to expiration of the statute of limitations should not serve as a basis to allow addition of a new party not timely sued).[2]
AFFIRMED.
TORPY and EVANDER, JJ., concur.
NOTES
[1] Florida Rule of Civil Procedure 1.190(c) sets forth the relation back doctrine: "When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading."
[2] We also note that Appellant's failure to join the correct defendant was attributable solely to his own inexcusable neglect, given the undisputed fact that Specialty accurately identified itself as the proper party to sue before the statute of limitations expired. See Galuppi v. Viele, 232 So.2d at 411 (Overton, J., dissenting). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3040196/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1354
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Hugo Segura-Gomez, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: April 18, 2006
Filed: April 19, 2006
___________
Before MELLOY, FAGG, and BENTON, Circuit Judges.
___________
PER CURIAM.
Hugo Segura-Gomez appeals the 120-month prison sentence the district court*
imposed after Segura-Gomez 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).
To the extent the Anders brief can be read to challenge the imposition of a
statutory mandatory minimum sentence, Gomez’s argument fails. See United States
*
The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003) (sole authority for district court to
depart from statutory minimum sentence is found in 18 U.S.C. § 3553(e) and (f),
which apply only when government makes motion for substantial assistance or
defendant qualifies for safety-valve relief); United States v. Mendoza, 876 F.2d 639,
641 (8th Cir. 1989) (mandatory minimum sentencing does not violate defendant’s
constitutional rights).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
conclude there are no nonfrivolous issues. Accordingly, we affirm the district court’s
judgment and grant counsel leave to withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1617867/ | 38 So. 3d 149 (2010)
McGRIFF
v.
STATE.
No. 3D10-1692.
District Court of Appeal of Florida, Third District.
July 16, 2010.
Decision Without Published Opinion Vol. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617858/ | 623 So. 2d 836 (1993)
John VENTRIGLIA, Appellant,
v.
Melissa VAUGHAN, formerly known as Melissa Ventriglia, Appellee.
No. 92-04065.
District Court of Appeal of Florida, Second District.
September 8, 1993.
*837 Melton H. Little, Bradenton, for appellant.
Claflin Garst, Jr., Bradenton, for appellee.
PARKER, Judge.
John Ventriglia (father) appeals the trial court's order on the motion of Melissa Vaughan (mother) to correct an error in the final judgment. In its order, the circuit court judge held that the court had continuing jurisdiction to change the visitation which was established in the final judgment of dissolution of marriage without requiring a showing of a substantial change of circumstances. We vacate the challenged order and hold that the mother must prove a material and substantial change of circumstances and that any proposed change in visitation would be in the best interests of the child in order for the court to modify the visitation established in the final judgment.
The trial court dissolved this marriage by final judgment in December 1991. In the final judgment, Judge Blue, the presiding judge, awarded the mother primary custody of the parties' only child, who was almost one year old at the time, and awarded the father visitation every weekend. The final judgment provided that the trial court retained jurisdiction for the purpose of entering such "orders as may be necessary for purposes of enforcing this Final Judgment of Dissolution of Marriage." Near the conclusion of the final hearing and before the trial court rendered the judgment, the mother's attorney expressed concern that the mother never would have the child on any weekend. Judge Blue's oral response was that he intended to leave the visitation as he had ordered and added:
When you can't work them out, then you get to come back and see me, and I would certainly look into some sort of a change that would benefit both parties, because I can see where you would both benefit if you didn't have to be on the road as much as you are and have the baby on the road as much as it is, but there's got to be some give and take.
I think Melissa should have the child on some weekends and maybe you all can think about that and maybe you attorneys could advise and see if it can be worked out.
Six months later the mother's new attorney filed a Motion to Correct Error in Final Judgment, asserting that there was a "clerical mistake or error arising from oversight or omission in the Final Judgment." The motion in essence alleged that the above-quoted statement indicated that Judge Blue intended to retain jurisdiction to change visitation without the necessity for a party to file a petition for modification but that the final judgment failed to do so. Judge Gallen held a hearing on the motion during which he reviewed the transcript of Judge Blue's ruling from the final hearing.[1] Thereafter Judge Gallen entered an order amending the final judgment to provide:
[T]his Court has continuing jurisdiction to determine visitation and changing the visitation as is in the best interest of the minor child and the Court further upon reviewing the transcript of the Ruling on November 18th, 1991, finds that Judge John R. Blue in his Ruling reflected that the continuing jurisdiction of the Court to revisit visitation would not require the petitioning *838 party to show or allege a substantial change of circumstances and the visitation ordered by Judge Blue was in the nature of a trial visitation which if it was not suitable, the Court would revisit the matter and work it out in the event the parties could not otherwise agree.
Judge Gallen's order then referred the issue of visitation to mediation.
We conclude that Judge Gallen's order was error. The mother's motion to correct error in the final judgment was a request for relief pursuant to Florida Rule of Civil Procedure 1.540. Rule 1.540(a) limits relief to those requests seeking to correct clerical, not judicial, errors or omissions in an order or final judgment. Clearwater Oaks Bank v. Plumtree, 477 So. 2d 1023 (Fla.2d DCA 1985). The challenged order did not correct a clerical error, but rather it changed the substance of the final judgment. There was no indication in Judge Blue's final judgment that the visitation was in the nature of a trial visitation. In fact, that same visitation schedule had been ongoing in the four months preceding the entry of the final judgment.
Judge Gallen's order extinguished the requirement of either party having to prove a substantial and material change in circumstances in order to modify the visitation. There, of course, is no question that the trial court has continuing jurisdiction to enforce or modify the judgment in this case. See Wells v. Ward, 314 So. 2d 138 (Fla. 1975). The correct procedure to modify visitation, however, is for the party to file a petition for modification. Then, in order to prevail on the petition, the party must show that there has been a substantial and material change in circumstances and that the proposed change would be in the best interests of the minor child. Perkins v. McKay, 460 So. 2d 531 (Fla.2d DCA 1984).
We, therefore, vacate Judge Gallen's order. The mother still has available to her the remedy of filing a petition for modification of the final judgment which alleges that there has been a substantial change in circumstances and that the proposed change in visitation would be in the best interests of the child.
FRANK, C.J., and SCHOONOVER, J., concur.
NOTES
[1] Judge Blue had been elevated from the circuit court to the second district court of appeal at the time of the mother's motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617860/ | 190 S.W.3d 615 (2006)
FERRELLGAS, INC., Appellant,
v.
EDWARD A. SMITH, P.C., et al., Respondent.
No. WD 65554.
Missouri Court of Appeals, Western District.
May 9, 2006.
*617 Hugh Lawrence Marshall, Kansas City, MO, for Appellant.
Michael Patrick Joyce, Kansas City, MO, for Respondent.
Before JAMES M. SMART, JR., ROBERT G. ULRICH, and LISA WHITE HARDWICK, JJ.
PER CURIAM.
The trial court granted summary judgment in favor of Respondents Edward A. Smith, P.C., et al., because the claims brought against them by Appellant Ferrellgas, Inc. were barred by the applicable statute of limitations. Ferrellgas appeals. The judgment is affirmed.
Factual and Procedural Background
This appeal arises from a lawsuit filed by Ferrellgas, Inc. against Edward A. Smith, P.C. and Smith, Gill, Fisher & Butts, P.C., ("Smith, Gill"), alleging legal malpractice. The allegations relate to Smith, Gill's representation of Ferrellgas in a California lawsuit, Hightower v. Buckeye Gas Products, case no. Indio 54099, Riverside County Superior Court.
The plaintiff in that lawsuit, Allan Hightower, was injured in a propane gas explosion in Blythe, California, in 1985. In October 1985, Hightower filed suit against Buckeye Gas Products, LP, and Buckeye Gas Products Management Company (collectively, Buckeye). Ferrellgas became a party to the lawsuit when it purchased Buckeye from American Premier Underwriters, Inc. (APU) in 1986. Ferrellgas retained Smith, Gill, along with a California law firm, to represent it in the Hightower lawsuit. Prior to trial, plaintiff Hightower offered to settle his claim for $275,000. Smith, Gill advised Ferrellgas not to accept the offer. Ferrellgas declined the offer. After a trial, the jury found in favor of Hightower on October 12, 1990, awarding him $2,000,000. The verdict was upheld on appeal. Ferrellgas eventually paid over $3,000,000, including interest, to satisfy the Hightower judgment.
Exactly five years after the Hightower verdict, on October 12, 1995, Ferrellgas brought suit against Smith, Gill in Jackson County Circuit Court, alleging negligence and breach of contract. Those allegations were based, in part, on Ferrellgas' assertion that Smith, Gill failed to make itself aware and to inform Ferrellgas that if it were assessed just one percent of fault in the Hightower case, it would be responsible for the entire judgment. The malpractice case was dismissed without prejudice at Ferrellgas' request after the parties entered into a tolling agreement, effective October 25, 1996.
In October 2001, when the tolling agreement was not renewed, Ferrellgas refiled the lawsuit against Smith, Gill and its successor, Edward A. Smith, P.C. (collectively, the "Smith Firms"). This time, it alleged misrepresentation in addition to negligence and breach of contract. The Smith Firms' defendants asserted as an affirmative defense "that Plaintiff's claims are barred by all applicable statutes of limitations, including, but not limited to, *618 those of the States of California and Missouri."
The Smith Firms moved for summary judgment in March 2004, arguing, inter alia, that all the claims are barred by the applicable statutes of limitations. The Smith Firms explained in their suggestions in support that all three counts were barred by California's one-year statute of limitations for legal malpractice claims, CAL.CIV.PROC.CODE § 340.6, made applicable by Missouri's borrowing statute, section 516.190, RSMo.[1]
The motion referred to a federal case in which APU (the predecessor of Ferrellgas) had brought claims of legal malpractice against Smith, Gill for its handling of the Hightower lawsuit, APU v. Smith, Gill, Fisher & Butts, P.C., case no. 95-0828-CV-W1. The federal court granted summary judgment in that case based on the identical statute of limitations defense raised by the Smith Firms in this case, citing § 516.190, RSMo, and CAL.CIV.PROC. CODE § 340.6(a). The motion for summary judgment in this case, which involved the Ferrellgas claim, mentioned that the Smith Firms informed Ferrellgas of that summary judgment ruling prior to the refiling of this lawsuit in 2001 by Ferrellgas.
Ferrellgas argued, in response to the summary judgment motion, that the Smith Firms waived the statute of limitations defense by failing to plead it with particularity in their answers. It also argued that the defense was meritless because the causes of action accrued in Missouri, not California.
The Smith Firms then moved for leave to amend their answers, pursuant to Rule 55.33(a), to include citations to the specific statutes of limitations they were relying on. The court granted leave to file amended answers. The amended answers included citations to the specific statutes of limitations.
The trial court entered summary judgment in favor of the Smith Firms on the basis of the one-year California statute of limitations for actions against attorneys.
Ferrellgas appeals.
Standard of Review
Whether summary judgment is appropriate is a question of law, and, therefore, reviewed de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We view the record in the light most favorable to the party against whom judgment was entered and accord that party the benefit of all reasonable inferences. Id. Summary judgment is proper where the movant establishes that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Id. at 380; Rule 74.04.
Point I: Leave to File Amended Pleading
Ferrellgas argues in its first point that the trial court abused its discretion in granting the Smith Firms leave to amend their answers to include citations to the specific statutes of limitations.
In granting leave to amend, the trial court reasoned that "plaintiff has known from the beginning of this case the defendants' theory regarding the statute of limitations defense and the statutes relied on. There is no harm to plaintiff." Pursuant to Rule 55.33(a), "leave [to amend] shall be freely given when justice so requires." Whether to allow the amendment *619 of a pleading is discretionary with the trial court and its decision will not be disturbed absent an "obvious and palpable abuse of discretion." Kenley v. J.E. Jones Constr. Co., 870 S.W.2d 494, 498 (Mo.App.1994). On review, we look to see whether justice is furthered or subverted by the decision. Id.
Ferrellgas says that justice did not require that leave be granted to amend the pleadings in this case and that doing so actually subverted justice by depriving it of the opportunity to proceed on the merits of its claim. Ferrellgas argues, in essence, that justice does not require leave to amend an answer to include a statute of limitations defense. Ferrellgas argues that it subverts justice to preclude a decision on the merits, and that doing so advances no relevant public policy.
In granting leave to amend a pleading, the court is to consider the hardships to the moving party if the request is denied, the reasons for failure to include the matter in a designated pleading, and the injustice caused the opposing party when the request is granted. Rose v. City of Riverside, 827 S.W.2d 737, 739 (Mo.App. 1992). Ferrellgas contends that it suffers the more severe hardship, because Smith, Gill's mishandling of the Hightower lawsuit caused it to lose over three million dollars. Permitting the amendment effectively allows the wrongdoer to avoid any responsibility for that loss, it says.
We find no "obvious and palpable abuse of discretion" in the trial court's granting leave to amend. Trial courts are not to be stingy in granting leave to amend. See Bohrmann v. Schremp, 666 S.W.2d 30, 32 (Mo.App.1984). The trial court has broad discretion to grant a party leave to amend his answer; it is an abuse of discretion not to grant such leave when justice requires. Rose, 827 S.W.2d at 739. Prejudice is not measured by whether one party or the other would stand to suffer financial loss as a result of the court ruling. Instead, prejudice is measured by whether a party is deprived of a legitimate claim or defense because the motion for leave to amend caught that party by surprise after it had developed its strategy. See Id. In Rose, the court noted that the appellants were well aware of the statute of limitations defense sought to be added by amendment because the respondent raised it in the motion for summary judgment. Id. The court concluded that "[i]t would be an abuse of discretion to refuse to allow the respondent to amend its answer to include a statute of limitations defense" where the plaintiffs were "well aware the defense existed." Id.
The same is true here. As noted by the trial court, Ferrellgas knew from the outset the statute of limitations theory and the applicable statutes. The Smith Firms alleged in their answers that Ferrellgas' cause of action was barred by the applicable statute of limitations of California and Missouri. Prior to refiling its petition, Ferrellgas was aware of the federal district court's ruling granting summary judgment in favor of APU based on the same statutes of limitations that Smith, Gill included in its amendment. There was no surprise and, thus, no prejudice or harm to Ferrellgas in granting leave to amend.
The circuit court did not abuse its discretion in granting leave to amend. Point denied.
Point II: Cause Accrued in California
Ferrellgas argues, in Point II, that the trial court erred in granting summary judgment on its tort claims based on California's one-year statute of limitations because those claims accrued in Missouri. Thus, Missouri's five-year statute of limitations *620 applies, and the petition was not untimely. Ferrellgas also says the court erred in its finding as to when the claims accrued.
The trial court held that all of Ferrellgas' claims were barred by California's one-year statute of limitations for claims of legal malpractice, section 340.6 of the California Civil Procedure Code.[2] The fact of damage was, therefore, capable of ascertainment on the date of the Hightower verdict, October 12, 1990. Thus, for the matter to have been timely filed in Missouri, it needed to be filed no later than October 12, 1991. Instead, it was filed October 12, 1995, four years outside the statute of limitations.
Missouri's statute of limitations for personal injury actions, including legal malpractice, is five years. § 516.120; Day v. deVries & Assoc., P.C., 98 S.W.3d 92, 95 (Mo.App.2003). When a cause of action "originates" in another state, however, the foreign state's statute of limitations becomes applicable through Missouri's borrowing statute, section 516.190. Alvarado v. H & R Block, Inc., 24 S.W.3d 236, 241-42 (Mo.App.2000). Section 516.190 provides that "[w]henever a cause of action has been fully barred by the laws of the state ... in which it originated, said bar shall be a complete defense to any action thereon, brought in ... this state." Thus, if the foreign state's statute of limitations bars the action, then Missouri's borrowing statute acts to bar the action here as well. Alvarado, 24 S.W.3d at 242.
The term "originated," as used in the borrowing statute, is equivalent to the term "accrued." Thompson v. Crawford, 833 S.W.2d 868, 871 (Mo. banc 1992). Under section 516.100, a cause of action "accrues" when the damage resulting therefrom "is sustained and is capable of ascertainment." Id. "Capable of ascertainment" means "capable of being ascertained by a reasonable person using reasonable diligence." Cook v. DeSoto Fuels, Inc., 169 S.W.3d 94, 103 (Mo.App.2005). Whether damages are capable of ascertainment is an objective test, ordinarily decided as a matter of law. Id. Damage is ascertainable "when the fact of damage can be discovered or made known, not when the plaintiff actually discovers injury or wrongful conduct," regardless of whether the amount of damage is then known. Klemme v. Best, 941 S.W.2d 493, 497 (Mo. banc 1997). "Some damage for some amount" is all that is necessary to trigger accrual of a cause of action. Day, 98 S.W.3d at 97 (citing Dixon v. Shafton, 649 S.W.2d 435, 439 (Mo. banc 1983)).
Section 516.100 not only determines when a cause of action accrues but also where it accrues for the purpose of determining whether the borrowing statute applies. Id. at 95. "A cause of action accrues when and originates where damages are sustained and are capable of ascertainment." Id. (quoting Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo. banc 1984)).
Ferrellgas disputes the court's findings both as to when and where the cause of action accrued. With regard to when, Ferrellgas says the cause accrued as late as February 2003, when it received notice of the denial of rehearing, and no earlier than November 2002, when the appeal was *621 denied.[3] It is unnecessary to resolve this question, however, because Ferrellgas filed its action within five years after the verdict, but more than one year after the appeal was resolved. Thus, if Missouri's five-year statute of limitations controls, the petition was timely filed. If the California one-year statute applies, the petition is time-barred regardless of which of the three dates are used.[4] Thus, the relevant question is where the cause of action accrued.
Ferrellgas contends its tort claims originated, or accrued, in Missouri, citing Alvarado v. H & R Block, Inc., 24 S.W.3d 236 (Mo.App.2000), in support. This court, in Alvarado, held that the cause originated in California where the plaintiffs first received notices from the IRS advising them of tax penalties connected with tax returns prepared by the defendant in Texas. 24 S.W.3d at 242-43. Ferrellgas contends, based on Alvarado, that a tort action accrues where the plaintiff "learns of or should have learned of" the last item of injury. Ferrellgas claims it had no representative present in the California courtroom when the verdict was returned;[5] therefore, it says, it first "learned of" the verdict when it received notification of it at its offices in Liberty, Missouri.
Alvarado does not stand for the proposition that where a plaintiff "learns of" its injury is where the cause of action accrues. We said, in Alvarado, that the "final significant event required for the Alvarados to have a suable claim was the ascertainment of damages," and that their cause of action "accrued where [they] ascertained that they had sustained damages in the form of assessed penalties by the IRS." Id. at 242 (emphasis added). It would have been technically more accurate to say that the cause accrued where the fact of damage became "capable of ascertainment"; the damage did not become capable of ascertainment until they were living in California. Id. Contrary to Ferrellgas' analysis, the judgment in Alvarado was not based on where the plaintiffs were physically located when they "learned of" the tax penalties, but rather on where the sustaining of damage first became capable of ascertainment. In Alvarado, that was California, when the Alvaradoes received the deficiency notices from the IRS. This case, unlike Alvarado, involves a courtroom verdict, not a tax deficiency. A courtroom verdict becomes a matter of public record, which is immediately "capable of ascertainment," whereas a tax penalty based on a deficiency assessment is not ascertainable to the taxpayer until the taxpayer receives a communication from the IRS. The assessment of penalties by the IRS are confidential; they are not matters of public record which are "capable of ascertainment" by any interested person.
All three counts in Ferrellgas' petition constitute claims for legal malpractice related to Smith, Gill's handling of the Hightower lawsuit in California.[6] These claims *622 originated (or accrued) in California, in that the fact of damage resulting from Smith, Gill's alleged mishandling of that lawsuit was "capable of ascertainment" in October, 1990. See Cook, 169 S.W.3d at 103. It is immaterial whether Ferrellgas actually discovered the damage at that place and time. See Klemme, 941 S.W.2d at 497. Of course, although it is immaterial, Ferrellgas actually did discover the fact of damage at that time and place through its attorneys, even though the full amount of the ultimate damage may not have been determined until appeals were exhausted. See Dixon v. Shafton, 649 S.W.2d 435, 439 (Mo. banc 1983).
Ferrellgas' claims are time-barred by section 340.6 of the California Civil Procedure Code, and the circuit court did not err in entering judgment in favor of the Smith Firms on that basis. Point denied.
Point III: Breach of Contract Claim
In Point III, Ferrellgas argues that the trial court erred in granting summary judgment on its contract claim based on California's statute of limitations and in treating the contract claim the same as the tort claims. It also argues that the Smith Firms failed to meet their burden of establishing that the breach of contract claim accrued in California.
Ferrellgas says that because the Smith Firms failed to demonstrate when or where the contract claim accrued, the court was required to treat it as though it accrued in Missouri, citing Day, 98 S.W.3d at 97. Ferrellgas points out that Smith, Gill contracted in Missouri to represent Ferrellgas in the Hightower case. Ferrellgas argues that the firm rendered legal opinions and gave Ferrellgas advice and counsel in Missouri, and that the bulk of Smith, Gill's work under the contract took place in Missouri. Ferrellgas says it did not allege in its petition that the actual conduct of the Hightower trial constituted a breach of contract; rather, that the breach consisted of Smith, Gill's failure to live up to its obligations to investigate and educate itself in the law and to advise its client accordingly.
As noted, all of the allegations in the petition related to Smith, Gill's handling of the Hightower lawsuit, including the breach of contract count. Count II alleged that "[a] contract created in Missouri existed... under which [Smith, Gill] agreed to represent Ferrellgas as its attorneys in connection with the Hightower case," that Smith, Gill breached that contract, and that it "failed to fully and properly perform" under the contract. Ferrellgas cited numerous examples of those failures, all of which related to Smith, Gill's handling of the Hightower lawsuit. As the Smith Firms argued in their summary judgment motion however, "all of the claims filed against [Smith, Gill] arise out of the legal representation provided by [Smith, Gill] to [Ferrellgas] in the personal injury lawsuit filed by Mr. Hightower and tried and appealed in the state courts of California *623 resulting from a propane gas explosion that occurred in Blythe, California."
Ferrellgas says the court erred in not treating the breach of contract claim as separate and distinct from the two tort claims, because the rules for determining where and when a contract action accrues are different than for torts. Ferrellgas cites some cases relating to breach of contract actions, but it does not provide any authority that actually supports the statement that the rules for determining where and when a contract action accrues are different from those for torts.
Because all the counts are claims "against an attorney for wrongful acts or omissions," and because all originated in California, each is subject to California's one-year statute of limitations for legal malpractice claims, CAL.CIV.PROC.CODE § 340.6. That statute makes no distinction in legal malpractice actions between claims based on a tort theory and those based on breach of contract. See Levin v. Graham & James, 37 Cal. App. 4th 798, 44 Cal. Rptr. 2d 69, 73 (1995) (for a claim of legal malpractice, "whether the theory of liability is based on the breach of an oral or written contract, a tort, or a breach of a fiduciary duty, the one-year statutory period applies").
Missouri law also does not distinguish between tort and contract claims in analyzing "when" and "where" a cause of action accrues. The applicable "sustained and is capable of ascertainment" language applies both to torts and to breach of contract actions. See § 516.100 ("the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment"). (Emphasis added.)
We have already established that California's one-year statute of limitations for legal malpractice claims is applicable here, via Missouri's borrowing statute, and that the court properly granted summary judgment on that basis. This applies equally to the breach of contract claim. The circuit court also did not err in entering summary judgment on that count.
Conclusion
For the foregoing reasons, the judgment is affirmed.
NOTES
[1] All statutory references are to the Revised Statutes of Missouri 2000, unless otherwise noted.
[2] Section 340.6(a) of the California Civil Procedure Code provides:
An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission....
[3] The trial court disagreed with the assertion that the cause accrued either when the judgment was affirmed or when rehearing was denied, but held that the cause was time-barred by California's statute of limitations, regardless.
[4] Ferrellgas is not assisted by California's tolling provision, CAL.CIV.PROC.CODE § 340.6(a)(2), which provides that the statutory period "shall be tolled during the time that ... [t]he attorney continues to represent the plaintiff regarding the [same] subject matter [.]" Here, that was until February 1993 at the latest; thus, the outcome is the same.
[5] Smith, Gill contends that a representative of Ferrellgas was present in the courtroom when the verdict was read. The court could not resolve that dispute, but correctly held that it was irrelevant in light of the accrual test applied.
[6] Ferrellgas alleged in Count I that "Smith, Gill was negligent in providing legal services and advice ... and failed to use that degree of skill and learning ordinarily used by members of their profession in the same or similar circumstances" in various respects, all of which directly related to the Hightower case. Count II alleged that "[a] contract created in Missouri existed ... under which [Smith, Gill] agreed to represent Ferrellgas as its attorneys in connection with the Hightower case" and that it "failed to fully and properly perform under the parties' contract and breached the contract" in various respects. Count III alleged that "Smith, Gill made certain representations ... regarding the facts, law and risk of liabilities existing in connection with cases being litigated, including the Hightower case," that "Smith, Gill intended for Ferrellgas to rely upon its representations," and that "[r]epresentations made by Smith, Gill relating to the Hightower case were false[.]" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617916/ | 303 S.W.3d 612 (2010)
Russell A. McKELVEY, Movant-Appellant,
v.
STATE of Missouri, Respondent-Respondent.
No. SD 29703.
Missouri Court of Appeals, Southern District, Division Two.
February 16, 2010.
Matthew Ward, Columbia, MO, for Appellant.
Chris Koster, Attorney General, and John W. Grantham, Assistant Attorney General, Jefferson City, MO, for Respondent.
GARY W. LYNCH, Presiding Judge.
Russell A. McKelvey ("Movant") appeals the judgment granting his Rule 24.035 motion for post-conviction relief.[1] Finding that Movant has failed to raise or present any cognizable claim for appellate review under Rule 24.035(k), we affirm the motion court's judgment.
Factual and Procedural Background
Movant was initially charged in Greene County Circuit Court case number 31307CF1893 ("the underlying criminal case") by felony information with one count of the class B felony of assault of a law enforcement officer in the second degree, see § 565.082.1, RSMo Cum.Supp. 2005, and one count of the class D felony of resisting an arrest, see § 575.150, RSMo Cum.Supp.2005. The charges stemmed from an incident occurring March 11, 2007, when law enforcement officers attempted to stop Movant for driving while intoxicated and an extended chase ensued thereafter.
At the plea hearing on October 1, 2007, the State filed an amended felony information charging Movant with the same two *613 offenses, but added an allegation that Movant, having two prior felony convictions, was a persistent offender, see §§ 558.011, RSMo Cum.Supp.2004, and 558.016, RSMo Cum.Supp.2005. The State also alleged that because Movant was a persistent offender, the charge of assault of a law enforcement officer in the second degree was punishable as a class A felony and the charge of resisting an arrest was punishable as a class C felony. Pursuant to a plea agreement, the State dismissed the assault charge, Movant entered a plea of guilty to the resisting an arrest charge, and Movant was sentenced thereon as a persistent offender to five years' imprisonment.
On February 25, 2008, Movant filed a pro se motion pursuant to Rule 24.035, to vacate, set aside, or correct the judgment or sentence. Counsel was appointed, and an amended motion was filed on August 19, 2008, contending that Movant's "sentence [in the underlying criminal case] was in excess of the maximum authorized by law because the State of Missouri failed to prove beyond a reasonable doubt that Movant had been convicted, pled guilty to or [had] been found guilty of two or more felonies committed at different times." Movant further alleged that "[t]he state's felony information utilized two felony convictions that originated from a single episode [,]" and "[a]s such, the state failed to prove Movant was a persistent offender and unlawfully sentenced him to an extended term of five (5) years imprisonment for a class D felony."[2]
At the evidentiary hearing on Movant's amended motion, held the morning of December 5, 2008, the State conceded that Movant's claim had merit and did not oppose the motion court's sustaining of Movant's amended motion. The motion court made a docket entry stating: "Movant's motion to vacate sentence is sustained. Sentence in [the underlying criminal case] is hereby set aside. Deft to be re-sentenced in [the underlying criminal case] today at 11:30 a.m."
Later on the morning of December 5, 2008, Movant's re-sentencing was taken up in the underlying criminal case. At that time, the State tendered for filing in open court, and the trial court granted the State leave to file, a second amended felony information alleging the same charges. However, in addition to a May 19, 1989 plea of guilty and conviction on a charge of felony murder in the second degree as alleged previously in the first amended information, the State's second amended information also alleged a guilty plea and conviction for the unlawful use of a weapon on May 18, 2005, in a separate criminal case.
Movant stipulated to the prior May 18, 2005 guilty plea and felony conviction for unlawful use of a weapon, however he objected to the procedure of allowing the State to file an amended information at re-sentencing, contending that "proof of persistent offender status should be proven before he's sentenced and [the State] shouldn't have two bites at the apple." Counsel for Movant requested the imposition of a four-year sentence, the maximum for a class D felony, contending that the *614 State in the original sentencing proceeding had not proven Movant's persistent offender status. The State argued that amendment of the charging information was proper procedure upon remand and recommended a five-year sentence, as originally agreed to by Movant and as previously imposed by the plea court. Movant was re-sentenced by the plea court to serve a five-year term of imprisonment, and a new judgment reflecting that sentence was entered in the underlying criminal case on that date.
Almost three months later, on February 27, 2009, the motion court entered in this case an "Order Pursuant To Rule 24.035," ordering remand for re-sentencing upon its finding that the State had conceded that the basis for enhancement of Movant's sentence as a persistent offender was insufficient, in that the two felony convictions alleged in the first amended information had occurred at the same time. Movant timely appeals this judgment.
Standard of Review
"Appellate review of the motion court's action on a Rule 24.035 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k)." Brooks v. State, 242 S.W.3d 705, 708 (Mo. banc 2008).
Discussion
In his sole point relied on, Movant contends:
The motion court clearly erred in re-sentencing [Movant] prior to the filing of its "Order Pursuant to Rule 24.035" because the record leaves the definite and firm impression that he was denied his right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Missouri Constitution, in that the motion court's December 5, 2008 ruling did not become a final judgment until it filed its findings of fact and conclusions of law, in the form of an order, on February 27, 2009, and thus, he should not have been resentenced before that date.
The factual premise of Movant's point the motion court re-sentenced Movantis not supported by the record. While the motion court concluded that re-sentencing was the appropriate remedy after sustaining Movant's motion for post-conviction relief, Movant's re-sentencing was actually accomplished by the plea court in the underlying criminal case, not by the motion court in this case. Movant acknowledges this distinction in the argument portion of his brief by concluding that "[t]his Court should remand [Movant's] criminal case, so that he can be re-sentenced in accordance with the motion court's findings of fact and conclusions of law." (Emphasis added). While claims of error in the plea court's actions in the actual re-sentencing of Movant and in subsequently entering another judgment of conviction in the underlying criminal case are issues which could come before this Court by direct appeal or by another post-conviction motion, see Bain v. State, 59 S.W.3d 625, 627 (Mo.App.2001), they are not before us in this appeal.[3]
As previously stated, our review in this appeal is "limited" to the findings and conclusions of the motion court. Rule 24.035(k); Brooks, 242 S.W.3d at 708. Thus, "[c]laims that have not been presented to the motion court cannot be raised for *615 the first time on appeal." Samuel v. State, 156 S.W.3d 482, 483 (Mo.App.2005) (quoting Dean v. State, 950 S.W.2d 873, 877 (Mo.App.1997)). Here, other than the motion court's conclusion that re-sentencing was the appropriate remedy,[4] the motion court made no findings or conclusions related to the actual imposition of any sentence upon Movant. Movant, in his point on appeal, does not allege the motion court failed to make a required finding or challenge any finding or conclusion by the motion court as being clearly erroneous. Rather, Movant claims error, never raised in the motion court in the first instance, challenging the plea court's timing of his re-sentencing in the underlying criminal case. As such, Movant has failed to raise or present any issue in this case for our appellate review within the purview of Rule 24.035(k). Movant's point is denied.
Decision
"We presume the motion court's findings and conclusions are correct." Nelson v. State, 250 S.W.3d 386, 389 (Mo.App.2008) (citing Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991)). The burden is on the movant to convince this Court that the findings and conclusions of the motion court are clearly erroneous. Allen v. State, 233 S.W.3d 779, 782 (Mo.App.2007). In the absence of any challenge by Movant to the motion court's findings and conclusions in this case, we affirm its judgment.
SCOTT, C.J., and RAHMEYER, J., concur.
NOTES
[1] References to rules are to Missouri Court Rules (2009).
[2] The first amended information filed by the State and upon which Movant's guilty plea was entered and accepted alleged Movant's persistent offender status as follows:
1. On or about the 19th day of May, 1989, [Movant] plead [sic] guilty to the crime of felony Murder in the Second Degree in the Circuit Court of Jackson County, Missouri, Case Number CR88-4189, for events that occurred on 15th day of August, 1988.
2. On or about the 19th day of May, 1989, [Movant] plead [sic] guilty to the crime of Armed Criminal Action in the Circuit Court of Jackson County, Missouri, Case Number CR88-4189, for events that occurred on the 15th day of August, 1988.
[3] Although we do not reach Movant's due process claim in this case, it appears to us, without necessarily so deciding, that Movant's right to challenge any alleged plea court error in his re-sentencing in the underlying criminal case by direct appeal or post-conviction relief motion provides Movant constitutionally required due process.
[4] "The type of relief chosen is within the motion court's discretion." Croney v. State, 860 S.W.2d 17, 19 (Mo.App. E.D.1993) (citing Proctor v. State, 809 S.W.2d 32, 35 (Mo.App. 1991)). Movant has not challenged the type of reliefresentencingordered by the motion court in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1617944/ | 38 So. 3d 1180 (2010)
STATE of Louisiana
v.
James Deron WILLIAMS.
No. KW 09-993.
Court of Appeal of Louisiana, Third Circuit.
May 26, 2010.
*1181 Don Burkett, District Attorney, Many, LA, for Appellee, State of Louisiana.
Carol D. Powell Lexing, Monroe, LA, for Defendant-Appellant, James Deron Williams.
Court composed of SYLVIA R. COOKS, BILLY H. EZELL, and SHANNON J. GREMILLION, Judges.
COOKS, Judge.
Defendant, Deron James Williams, asserts on May 16, 2007, he was involved in an altercation. During the altercation, a Wildlife and Fisheries agent came upon the scene, and, according to Defendant, pulled a gun out and pointed it at Defendant. Defendant initially made a statement over the phone against the agent, but was advised to submit the complaint in writing. He eventually submitted a complaint in writing along with that of a corroborating witness. The complaint was investigated, and the result was that Defendant was arrested and charged by bill of information with false swearing for purposes of violating public health or safety, a violation of La.R.S. 14:126.1.
Defendant filed a Motion to Quash, which matter was submitted to the district court on briefs and denied. Defendant is now before this Court on an application for writ of supervisory review, seeking review of the district court's denial of his Motion to Quash. For the following reasons, we find the conduct charged in this case does not fall within the ambit of La.R.S. 14:126.1, and therefore remand to the trial court with instructions to grant the motion to quash the indictment.
ANALYSIS
Louisiana Code of Civil Procedure article 532(1) provides a motion to quash can be used to quash a bill of information that "fails to charge an offense which is punishable under a valid statute." Our Supreme Court in State v. Legendre, 362 So. 2d 570, 571, stated "[t]he question then is whether the indictment charges a valid offense. If it does not, it is a defective indictment and its invalidity may be declared by a ruling on a motion to quash,..." In this case Defendant was arrested and charged with violating La.R.S. 14:126.1 for filing an unsworn complaint. La.R.S. 14:126.1 provides as follows:
§ 126.1. False swearing for purpose of violating public health or safety
No person shall make a false statement, report or allegation concerning the commission of a crime for the purpose of violating, disrupting, interfering with or endangering the public health or safety, or to deprive any person or persons of any right, privilege or immunity secured by the United States Constitution and laws or by the Louisiana Constitution and laws, or cause such false statement or report to be made to any official or agency of the state or any parish, city or political subdivision thereof, or to any judicial, executive or legislative body or subdivision thereof within this state, knowing or having reason to believe the same or any material part *1182 thereof to be false and with the intent to cause an investigation of or any other action to be taken as a result thereof.
La.R.S. 14:126.1 follows La.R.S. 14:126, which reads as follows:
§ 126. Inconsistent statements; false swearing
It shall constitute false swearing whenever any person having made a under sanction of an oath, or an equivalent affirmation, required by law, shall thereafter swear or affirm in a manner materially contradictory of or inconsistent with his former sworn or affirmed statement. It shall not be necessary for the prosecution, in such case, to show which of the contradictory or inconsistent statements was false; but it shall be an affirmative defense that at the time he made them, the accused honestly believed both statements to be true.
The above statutes are found in a group of statutory provisions, La.R.S. 14:123 through 14:128, which deal with sworn speech. La.R.S. 14:123 and 14:124 deal with perjury, which is a false statement in a judicial proceeding made under oath or an equivalent affirmation. La.R.S. 14:125 deals with false swearing, which is defined in that article as "the intentional making of a written or oral statement, known to be false, under sanction of oath or an equivalent affirmation, where such oath or affirmation is required by law." La.R.S. 14:125.1 applies to "False swearing in paternity cases" and defines that crime as the "intentional making of a written or oral statement [in a paternity case], known to be false, under sanction of oath or equivalent statement ..." La.R.S. 14:127 lists the limitation of defenses for a "prosecution for perjury or false swearing." It does not reference unsworn statements in any way.
Defendant argues La.R.S. 14:126.1 cannot be read in a vacuum and must be interpreted with the statutes that both precede and follow it. Statutory construction laws require that all laws pertaining to the same subject matter must be interpreted in pari materia, or in reference to each other. La.Civ.Code art. 13; State v. Gutweiler, 06-2596 (La.4/8/08), 979 So. 2d 469.
We further note La.R.S. 14:126 does not have a penalty provision in it, but La.R.S. 14:126.1 does, leading to the obvious conclusion that La.R.S. 14:126 and 14:126.1 operate in tandem, and consequently, must be read in para materia. They cannot operate together effectively unless La.R.S. 14:126.1 is read to require a sworn statement as La.R.S. 14:126 requires. "The Legislature is presumed to have enacted a statute in light of the preceding statutes involving the same subject matter ..." State v. Gutweiler, 979 So.2d at 484, citing Hamp's Constr., L.L.C. v. City of New Orleans, 05-489, p. 9 (La.2/22/06), 924 So. 2d 104, 110; New Orleans Rosenbush Claims Serv., Inc. v. City of New Orleans, 94-2223, p. 11 (La.5/10/95), 653 So. 2d 538, 544. We find it clear that La.R.S. 14:126.1 was intended to require a sworn statement based on the requirement found in La.R.S. 14:126 as well as the other statutes in La.R.S. 14:123-128, both preceding and following it.
For the foregoing reasons, we conclude that La.R.S. 14:126.1 was not intended to apply when there is not a statement made under oath. Thus, in the present case, the State failed to charge a crime in the manner required by law because Defendant's statement was not made under oath.[1] We *1183 therefore hold that the trial court abused its discretion by denying Defendant's motion to quash. Accordingly, the ruling of the trial court is reversed. We remand to the trial court with instructions to grant the motion to quash the indictment.
REVERSED AND REMANDED WITH INSTRUCTIONS.
EZELL, J., dissents and assigns written reasons.
EZELL, J., dissents.
I must respectfully dissent from the majority. The majority in this matter fail to recognize that Article 126 applies to an incident where one has made a previous statement under oath and then makes an inconsistent statement, again under oath at the time the second statement is made.
Article 126.1 does not require that one be under oath. This article stands alone and it is not necessary for one to look at Article 126 for support, due to the fact that Article 126 is dealing with statements under oath.
I would follow the ruling by the Second Circuit in State v. Marshall, 424 So. 2d 423 (La.App. 2 Cir.1982) that was authored by the Honorable Pike Hall.
NOTES
[1] We note there is at least one other statute that appears to criminalize the alleged conduct of Defendant. La.R.S. 14:59(A)(5) sets forth:
A. Criminal mischief is the intentional performance of any of the following acts:
. . .
(5) Giving of any false report or compliant to a sheriff, or his deputies, or to any officer of the law relative to the commission of, or an attempt to commit, a crime. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618071/ | 685 S.W.2d 15 (1985)
W.L. RAMSEY, Petitioner.
v.
GENERAL MOTORS CORPORATION, Et Al., Respondent.
No. C-3181.
Supreme Court of Texas.
January 30, 1985.
Rehearing Denied March 13, 1985.
Bill F. Griffin, Jr., Center, for petitioner.
Bankhead & Davis, Tom Bankhead, Carthage, Zeleskey, Cornelius, Rogers, Hallmark & Hicks, Kenzy D. Hallmark, Lufkin, for respondent.
*16 ROBERTSON, Justice.
This is a suit brought under the Deceptive Trade Practices Consumer Protection Act as it existed prior to the 1979 Amendments. W.L. Ramsey sued General Motors Corporation and Bill Hancock Chevrolet, Inc. for damages arising from the purchase of a defective pickup truck. Hancock filed a cross-action against GMC for indemnification. The trial court rendered judgment that Ramsey recover from GMC and Hancock, jointly and severally, the amount of $5,880 plus attorney fees, and that Hancock recover full indemnity from GMC. In a published opinion, the court of appeals reversed the judgment and remanded the cause for a new trial. 669 S.W.2d 824. We affirm in part the judgment of the court of appeals, and we reverse and render in part.
Ramsey sought damages for breach of implied warranty of merchantability under the provisions of section 17.50 of the DTPA, Tex.Bus. & Com.Code Ann. The trial was to a jury which found that the truck which Ramsey purchased from Hancock was defective and that it was not fit for the ordinary purposes for which such vehicles are intended. The jury also found that the vehicle had a market value without the defect of $7,960 and a market value with the defect of $6,000. The trial court trebled the $1,960 of actual damages and rendered judgment for Ramsey in the amount of $5,880 plus attorney fees.
On appeal, General Motors and Hancock challenged the trial court's refusal to submit the following special issue:
Do you find from a preponderance of the evidence that the defendant cured the defect in the vehicle, if any, before Plaintiff, W.L. Ramsey, filed suit?
The court of appeals reasoned that section 17.50A(3) of the pre-1979 DTPA precluded an award of treble damages if the defect was in fact cured before the suit was filed. The court therefore held that the trial court erred in refusing to submit the requested issue.
In section 17.50A(3), the legislature intended to provide a defense to treble damages for defendants who attempt to cure the defect. Woods v. Littleton, 554 S.W.2d 662, 671 (Tex.1977). However, this defense of "cure" is an affirmative defense which the defendant must plead and prove. Tex.R.Civ.P. 94; see Ridco, Inc. v. Sexton, 623 S.W.2d 792 (Tex.App. Fort Worth 1981, no writ).
General Motors pleaded "cure" as an affirmative defense, but Hancock merely filed a general denial. Although Hancock introduced evidence of cure, the trial court refused to submit the requested special issue. The refusal to submit a special issue in this case is not error because the issue was not raised by the pleadings. Matthews v. General Fire & Life Assurance Corp., 161 Tex. 622, 343 S.W.2d 251, 255 (1961). Therefore, the trial court's refusal to submit the special issue was not error as to Hancock.
As to Ramsey's claim against Hancock, we reverse the judgment of the court of appeals and affirm that of the trial court. We affirm the judgment of the court of appeals in that Ramsey's claim against GMC and Hancock's cross-claim against GMC are remanded for new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618083/ | 685 S.W.2d 356 (1984)
Billy P. TURNER, Appellant,
v.
Arthur W. LUTZ, et ux., Appellees.
No. 14126.
Court of Appeals of Texas, Austin.
October 10, 1984.
Rehearing Denied February 20, 1985.
*358 David Greenfield; Blanks, Greenfield, Mewhinney & Rhodes, Temple, for appellant.
Geoffrey A. FitzGerald, Temple, for appellees.
Before PHILLIPS, C.J., and POWERS and BRADY, JJ.
BRADY, Justice.
This is a second appeal by Billy P. Turner from the trial court's decree terminating his parent-child relationship with his two children. The first appeal resulted in this Court's reversal and remand for failure of the trial court to appoint a guardian ad litem as required by statute. 654 S.W.2d 57. On a retrial of this cause, the trial court appointed a guardian ad litem, proceeded to trial, with no jury having been demanded by any party, and held that the termination of the father's parental rights was for the best interests of the children. We reverse and render.
The parties to this cause were divorced in 1980. The mother, who is one of the appellees here, was named managing conservator of the two minor children, a boy, Billy, born in 1971 and a girl, Tami, born in 1979. The mother remarried appellee Arthur W. Lutz seven months after the divorce, and in July, 1981 filed this suit for termination of the parent-child relationship with the natural father and for adoption of appellant's two children. The petition for termination and adoption alleged that appellant "has failed to support the children in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition."
The divorce decree provided for child support payments of one hundred dollars per month for each child, commencing in March, 1980. Appellant had failed to pay payments as ordered by the court, paying only $200.00 in June of 1980, and $150.00 in July, 1980 after a contempt hearing. On October 14, 1981, the trial court terminated appellant's parental rights, and the first appeal was perfected to this Court. We reversed and remanded this cause for a new trial because Tex.Fam.Code Ann. 11.10(a) (Supp.1982) providing for appointment of a guardian ad litem had not been followed in the trial court.
Appellant on this appeal argues that the trial court erred in finding that the termination of the parent-child relationship between him and his two minor children was in the best interest of the children because there was either (1) no evidence or (2) insufficient evidence of such facts.
In considering "no evidence" points of error, this Court must look only *359 to that evidence which supports the trial court's decision and disregard all other evidence to the contrary. In reviewing an "insufficient evidence" point of error, this Court must consider and weigh all the evidence in the record to determine if the judgment was proper.
Although the Texas Family Code, Section 11.15 provides that the court's findings shall be "based on a preponderance of the evidence," the Texas courts have applied the "clear and convincing evidence" standard of proof in all proceedings for involuntary termination of the parent-child relationship. In the Interest of G.M., et al. Children, 596 S.W.2d 846 (Tex.1980). In that case the Court stated:
Termination is a drastic remedy and is of such weight and gravity that due process requires the state to justify termination of the parent-child relationship by proof of more substantial than a preponderance of the evidence.
In Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), the United States Supreme Court stated:
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential," "basic civil rights of man," and "[r]ights far more precious ... than property rights." "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.
The natural right between parents and their children is one of constitutional dimensions. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976). The termination of this right is complete, final, and irrevocable. It divests forever the parent and child of all legal rights, privileges, duties, and powers between each other except for the child's right to inherit. Our courts uniformly hold that for such reasons the proceedings below must be strictly scrutinized. In the Interest of R.L., 620 S.W.2d 249 (Tex.Civ. App.1981, no writ).
In determining questions of termination of parental rights to their children, the primary consideration is the best interest of the children. Where there is no jury, broad discretion is entrusted to the trial court, subject to the rules outlined herein. Once made, the decision of the trial court will not be disturbed unless it appears from the record that there was an abuse of discretion. Normally, as a corollary to this rule of broad discretion, it would matter not what this Court might have done under the circumstances had we heard the evidence; we would only be permitted to determine whether such broad discretion had been abused. However, under the "clear and convincing evidence" standard of proof, the scope of appellate review is expanded and this Court has more discretion in reviewing an involuntary termination case. See 12 St. Mary's L.J. 558, Hellman v. Kincy, 632 S.W.2d 216 (Tex.App.1982, no writ).
For guidance, we look to the Texas Supreme Court decision of Holley v. Adams, 544 S.W.2d 367 (Tex.1976), in which the Court lists some nine factors to be considered by the courts in ascertaining the best interests of the children. Included among these are (A) the desires of the child, (B) emotional and physical needs of the child now and in the future, (C) emotional and physical danger to the child now and in the future, (D) parental abilities of the individuals seeking custody, (E) programs available to assist these individuals to promote the best interest of the child, (F) the plans for the child by these individuals, (G) stability of the home or proposed placement, (H) the acts or omissions of the parent which may indicate the existing parent-child relationship is not a proper one, and (I) any excuse for the acts or omissions of the parent.
*360 With the above rules in mind, we must now proceed to scrutinize carefully and strictly this record for evidence which will support this drastic remedy. The "clear and convincing evidence" standard is defined as "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." This is an intermediate standard falling between the preponderance of the evidence of civil cases and the reasonable doubt of criminal proceedings. See State v. Addington, 588 S.W.2d 569 (Tex.1979) and In The Interest of G.M., et al., Children, supra.
We find no testimony in this record from the guardian ad litem. As previously stated in Holley, supra, the Texas Supreme Court has noted several factors which are pertinent in ascertaining the best interest of the children. We have no evidence from which this Court can determine that Mr. Sheffield, the court appointed guardian ad litem, had at any time made any investigation concerning these factors. We find nothing in the record to indicate that the children had been either seen or were interviewed by the guardian ad litem.
The limited participation of the court appointed guardian ad litem suggests he failed to make an independent investigation into the Holley factors. The trial court should have considered this in its finding that termination was in the best interest of the children. No written report was made or filed by the guardian ad litem. He did not testify. A social study made in 1981 by a court appointed investigator for the purpose of the adoption petition was not introduced into evidence in the termination hearing. Although we need not determine this point, the rule in termination cases requires the social study be formally introduced and admitted into evidence before it can be considered by the trial court. We note that evidence of appellant's alcohol problem or his misdemeanor DWI conviction did not include any showing of emotional or physical danger to his children, which in our view would be sufficient to support termination. Appellant's statement to his son that his mother was pregnant when they married, although reprehensible, justified the trial court's strong censure but alone would not be sufficient to support termination. The record indicates to us that the children's mother after the divorce and her remarriage, made visitation from the children's natural father next to impossible. Appellant was never permitted to have his children with him, but was only allowed to see them in the appellees' home. Letters and cards addressed from him to his children were not given to his children but were returned unopened. When the mother and her new husband moved from Bell County to El Paso, their unlisted telephone number prevented the appellant from communicating with his children. Gifts sent by the father to the children were refused by the appellees. In one instance a doll sent by appellant to his daughter was never given to her by appellees. The appellant was cut off almost completely from his children.
In a termination case there is a presumption that the children's best interest is served by leaving custody in the natural parents. This is of course based on the universally recognized belief that the ties of natural parents with their children are the best atmosphere for the mental, moral and emotional development of the children. Wiley v. Spratlan, supra. Appellees argue that this presumption was overcome, or that the original burden of proof on them to produce evidence that it was in the best interest of the children to terminate the parent-child relationship was shifted to appellant. This argument overlooks the "clear and convincing evidence" standard of proof. We reject it.
Actions which break the ties between parent and child can never be justified without the most solid and substantial reasons. Wray v. Lenderman, 640 S.W.2d 68 (Tex.App.1982, no writ); In the Interest of H.W.E., 613 S.W.2d 71 (Tex.Civ.App. 1981, no writ). Termination of the parent-child relationship may not be based solely upon what the trial court determines to be *361 the best interest of the child. Holley v. Adams, supra; Hellman v. Kincy, supra. While there is some evidence in this record of probative force to support the grounds for termination of the parent-child relationship, we do not feel that such evidence meets the requirement that it be "clear and convincing."
We conclude that the judgment of the trial court was not based on sufficient clear and convincing evidence to defeat the natural right of appellant as the father of these children, being one of constitutional dimensions.
Tex.Fam.Code § 11.19 provides that an appeal from an order, decree or judgment with or without a supersedeas bond, does not suspend the order, decree or judgment unless suspension is ordered by the trial court. No such suspension order was entered by the trial court of the decree terminating appellant's parent-child relationship with his two children. No showing was made to this Court by any party to this appeal that such orders should be suspended by us. Further, the record reveals that all the parties considered the decree of termination as being continued in effect pending appeal. Appellant had no visitation rights during these periods. Appellees moved from Bell County to El Paso, obtained an unlisted telephone number, and returned all of appellant's mail unopened. Some of this mail included Christmas and birthday gifts which appellant had sent to his children. Appellee, Mrs. Patricia Lutz, testified in 1981,
I wrote him, when I mailed back some cards, his parental rights had been terminated and I told him there was no need for him to send gifts for them any more.
This record reveals that the attorneys and the trial court erroneously assumed that the termination decrees in the first suit and in the second trial were suspended by the appeals, as was appellant's obligation to pay appellee child support.
Appellant's obligation to pay child support ceased upon the first order of termination on October 15, 1981. Upon reversal by this Court of that order on June 22, 1983, such obligation then was restored until September 15, 1983, when the trial court again terminated appellant's parent-child relationship with his children, and his obligation to pay child support. Effective on the day of the entry of the mandate on this appeal, appellant's obligation to pay child support in accordance with the decree of divorce in Cause No. 81,800 is reinstated.
Judgment of termination is reversed and rendered whereby appellant's parental rights are restored. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/241576/ | 241 F.2d 874
William A. NISBET, Katherine Nisbet, Lanna M. Nisbet, Emma M. Nisbet, J. C. Nisbet, Plaintiffs-Appellants,v.Ira VAN TUYL and Elsin C. Van Tuyl, doing business as V-T Drilling Company, Ray Ryan and Helen Ryan, doing business as Ryan Oil Company, Defendants-Appellees,William A. NISBET, Katherine Nisbet, Lanna M. Nisbet, Emma M. Nisbet, J. C. Nisbet, Plaintiffs-Appellees,v.Ira VAN TUYL and Elsin C. Van Tuyl, doing business as V-T Drilling Company, Ray Ryan and Helen Ryan, doing business as Ryan Oil Company, Defendants-Appellants.
Nos. 11874-11875.
United States Court of Appeals Seventh Circuit.
March 7, 1957.
William L. Craig, Nat H. Youngblood, Herman L. McCray, Evansville, Ind., for plaintiffs. James G. Wheeler, of Wheeler & Marshall, Paducah, Ky., of counsel.
William P. Foreman, Joe Vol Butt, Frederick P. Bamberger, Edmund F. Ortmeyer, Wesley Bowers, Ellis B. Anderson, Evansville, Ind., for defendants (appellees and cross-appellants).
Before DUFFY, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.
LINDLEY, Circuit Judge.
1
Plaintiff sued to recover damages said to have resulted from defendants' negligence in failing to seal properly an abandoned oil well. The cause was before us previously on appeal from a summary judgment in favor of defendant. 224 F.2d 66. As we pointed out there, the complaint was predicated upon an alleged violation of §§ 353.110 and 353.120 of Kentucky Revised Statutes, which impose a duty to plug an abandoned oil or gas well drilled through a "workable coal bed" and prescribes the procedure to be followed. Plaintiffs sought to recover the actual cost of replugging, notwithstanding the fact that that cost had not been borne by plaintiffs primarily, but rather by a third party, the West Kentucky Coal Company. The district court concluded that, though defendants were liable, the recovery should be limited to $1,000, the amount actually expended by plaintiffs. On appeal plaintiffs deny that their damages should be so restricted and, on cross-appeal, defendants deny all liability.
2
In June, 1947, plaintiffs entered into an oil and gas lease covering Kentucky land which was later assigned by the lessees to defendant Ryan Oil Company, who caused a well to be drilled which ultimately proved to be non-productive. Thereupon, plaintiffs notified the geologist and the men working about the well that they wanted it properly plugged and sealed, so as not to interfere with any coal mining operations, for which they expected to lease the land. Later, plaintiffs did lease the coal to the West Kentucky Coal Company, who, after mining had begun, discovered that gas and water were leaking into the mine from the abandoned well. Thereafter, the coal company entered into an agreement with plaintiffs whereby the former agreed to replug the well. The pertinent provisions of this contract were: "(1) That if the party of the second part [the Coal Company] will undertake to cause to be properly plugged said oil well and advance the cost thereof, * * * [plaintiffs] will repay from royalties to be earned upon demand the total cost when the same is ascertained. (2) [Plaintiffs] do hereby advance to the second party upon said total cost the sum of One Thousand Dollars ($1,000.00) the receipt of which is hereby acknowledged by the second party and * * * [plaintiffs] covenant and agree upon demand when the total cost of said plugging is finally ascertained to execute their note to the second party payable in one year from the date thereof subject to the credit of One Thousand Dollars ($1000.00) this day advanced, * * *." (Emphasis supplied.) The replugging was completed by the coal company at a cost "in excess of * * * $1000 but less than * * * $5104", as found by the district court, and the $1,000 mentioned was withheld from coal royalties accruing to plaintiffs. However, no demand was ever made by the coal lessee for the note mentioned in the agreement and, at the time of suit, no further royalties had accrued or were being withheld, and coal mining had completely abated.
3
Upon defendants' contention that no liability exists, it is urged that no statutory violation resulted for the reason that the well had not been drilled through "workable coal beds" within the meaning of the statute. A "workable coal bed" is specifically defined in § 353.010 of Kentucky Revised Statutes in these words: "(a) A coal bed actually being operated commercially, (b) A coal bed that the department decides can be operated commercially and the operation of which can reasonably be expected to commence within not more than ten years, or (c) Any coal bed that, from outcrop indications or other definite evidence, proves to the satisfaction of the department to be workable and, when operated, will require protection if wells are drilled through it." Obviously, the pertinent provisions are (b) and (c). It is defendants' position that, as there was no evidence of proof having been made to the satisfaction of the Department of Mines and Minerals that the coal bed was workable and protection needed, or, of a decision made by the Department, the requirements of neither (b) nor (c) had been met, and, consequently, that no liability ensued.
4
There is no dispute that the well was drilled through three separate minable coal veins. Likewise, defendants admit that they carefully logged the drilling of the well. Nevertheless, defendants contend that they had no actual knowledge of the presence of coal, although they candidly admit that a duty to cap properly an abandoned well is imposed under the circumstances mentioned in the statute. The record is replete with evidence that defendants should have known, in the exercise of reasonable care, that the well was being drilled through coal bearing strata and that the circumstances were such as to impose a duty on them to seal the well properly as provided by §§ 353.110 and 353.120. We cannot say as a matter of law that the trial court's finding in this respect is clearly erroneous.
5
As was succinctly stated, in Meeks Motor Freight v. Ham's Adm'r, 302 Ky. 71, 193 S.W.2d 745, 748, quoting from 38 Am.Jur. § 23 at page 665: "`The foundation of liability for negligence is knowledge — or what is deemed in law to be the same thing: opportunity by the exercise of reasonable diligence to acquire knowledge — of the peril which subsequently results in injury.'" The court added: "Every person is under a duty to exercise his senses and intelligence in his actions in order to avoid injury to others, and where a situation suggestions investigation and inspection in order that its dangers may fully appear, the duty to make such investigation and inspection is imposed by law. * * * One under duty to use care for which knowledge is necessary cannot escape liability for negligence because of voluntary ignorance." See also, Howard v. Fowler, 306 Ky. 567, 207 S.W.2d 559, 561. To hold that, in the absence of actual knowledge of existence of coal bearing beds, there was no duty imposed to seal the well would strike at the very heart of the remedial statute. To allow a party to avoid liability merely by averring bald ignorance would completely frustrate the purposes of the legislation.
6
Defendants further insist that there is complete lack of proof that the amounts expended in replugging the well were reasonable and necessary. As to this, we find that the record adequately supports the conclusion that the procedure followed in plugging the well was necessary, and that the cost range found by the trial court to be reasonable was not clearly erroneous.
7
There remains the further question of the amount of damages recoverable. In this respect, in essence, the initial problem is whether plaintiffs should be allowed to recover the actual cost expended by the coal company in remedying the situation created by defendants, or whether they should be limited to their actual expenditures or to the liabilities incurred by them under the coal company agreement.
8
There is no doubt that the question of recoverable damages is governed by the law of Kentucky. As established in Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 497, 61 S. Ct. 1020, 85 L. Ed. 1477, a federal court must look to the conflicts of law rules of the state in which it is sitting. Indiana follows the general rule that the issue is a substantive matter to be determined by the law of the place where the wrong was committed. Restatement, Conflict of Laws, § 412; Buckles v. Ellers, 72 Ind. 220, 223.
9
We must determine, irrespective of the effect of the agreement, whether plaintiffs may, as a matter of law, recover the entire amount expended by the coal company. In other words, are plaintiffs restricted in the amount of their recovery by the fact that they have, in effect, been partially compensated from a collateral source for the injury sustained? As a matter of general law, there is support for plaintiffs' position that they are entitled to all reasonable and proper costs, regardless of the arrangement with the coal company. In 15 Am.Jur. § 198, at page 615, it is stated: "As a general rule, total or partial compensation for an injury received by the injured party from a collateral source wholly independent of the wrongdoer will not operate to lessen the damages recoverable from the person causing the injury." However, a contrary view is pointed out in 15 Am.Jur. § 199, at page 616: "some authorities hold that no recovery for attention and medical services can be had unless there has been an actual expenditure of money for such attention and services or a liability therefor has been incurred, on the theory that the recovery must be for such pecuniary damages only as the plaintiff has actually suffered." (Emphasis supplied.) The leading Kentucky case in this respect is Sedlock v. Trosper, 307 Ky. 369, 211 S.W.2d 147, 13 A.L.R. 2d 349. There plaintiff attempted to recover for medical and hospital expenses for which he had incurred no liability, as they had been paid pursuant to an insurance benefit plan. At page 150 of 211 S.W. 2d the court enunciated the principles controlling in this cause: "In an action for personal injuries the reasonable value of necessary medical services and hospitalization is an element of damage, but recovery may be had only if the plaintiff has paid for such services or has incurred liability therefor. (Cases cited.) These are special damages and their recovery is purely compensatory." (Emphasis supplied.) To the same effect is Columbia Amusement Co. v. Rye, 288 Ky. 179, 155 S.W.2d 727, a personal injury case, wherein the court held that no recovery would be permitted for housekeeping expenses not shown to have been paid or liability incurred therefor by plaintiff. Similarly, in Bartlett v. Vanover, 260 Ky. 839, 86 S.W.2d 1020, at page 1021, the court had this to say: "In actions of this character recovery may be had for amounts shown to have been expended or incurred for hospital bills, medical treatment, etc., provided such damages are properly pleaded. * * * The word `incurred,' as used in pleadings or instructions regarding medical expense, etc., paid out or incurred, means to become liable for." See also, Hall v. Proctor Coal Co., 236 Ky. 813, 34 S.W.2d 425. Inasmuch as we are bound by the law of Kentucky, we must conclude that plaintiffs can recover damages only to the extent that they have either actually expended funds or incurred liability as a result of the injuries sustained.
10
Ultimately, therefore, we face the question of whether plaintiffs have sustained their burden of proof in establishing that they have made expenditures or incurred liabilities in excess of $1,000. It is plaintiffs' position that, since the contract is still in full force and effect, there exists a binding obligation on their part to reimburse the coal company for the entire cost of sealing the well. It is significant, however, that the first paragraph of the contract discloses that plaintiffs promised to pay the cost of replugging "from royalties to be earned." Yet, it is urged, that by reason of the second paragraph, there remains a possibility that the coal company may demand that a note be executed to cover the actual cost of plugging and that this situation creates a valid liability. Such an interpretation, we think, would render the two paragraphs completely irreconcilable, a situation which would hardly seem to have been within the contemplation of the parties. Clearly, the more obvious and logical construction of the second paragraph is that the parties intended that a note would be executed, payable only out of a specific fund, namely, royalties to be earned. The evidence clearly negates existence of any royalties from which a note could be paid. As we have already emphasized, there has never been a demand on plaintiffs for anything in addition to the $1,000 paid or for delivery of the note. Similarly, so far as the record shows, no royalties have been or are being withheld. And it is significant that all coal mining operations have ceased. Consequently, there was complete failure to prove that any specific fund out of which the alleged liability can be satisfied is in being or is capable of coming into existence. Plaintiffs have failed to prove any legal obligation on their part to the coal company. In view of Kentucky law, they are, on this record precluded from recovering anything other than the $1,000.
11
The judgment is affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1920199/ | 91 B.R. 961 (1988)
In re James E. TWITCHELL and Jeanine P. Twitchell, Debtors.
OREM POSTAL CREDIT UNION, Plaintiff/Appellee,
v.
James E. TWITCHELL, Defendant/Appellant.
Civ. No. C-87-873W.
United States District Court, D. Utah, C.D.
February 22, 1988.
*962 Richard F. Bojanowski, Salt Lake City, Utah for defendant/appellant.
Bruce L. Richards, Salt Lake City, Utah, for plaintiff/appellee.
MEMORANDUM DECISION AND ORDER
WINDER, District Judge.
This is an appeal from a bankruptcy court memorandum opinion and order determining that a $20,958.37 debt is not dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(4). Richard F. Bojanowski appeared on behalf of James E. Twitchell, the appellant, and Bruce L. Richards appeared on behalf of the Orem Postal Credit Union, the appellee. The court heard oral argument on January 28, 1988 and took this matter under advisement. The court has carefully reviewed the appellate briefs of counsel, the record on appeal, and all case law pertinent to the issues on appeal. Being now fully advised, the court is of the opinion that the decision of the bankruptcy court should be reversed and the debt discharged pursuant to 11 U.S.C. § 727.
Factual Background
In 1974 the Orem Postal Credit Union (the "Credit Union") employed James E. Twitchell as a credit manager. Later, the Credit Union appointed Mr. Twitchell as president and treasurer of the Credit Union. On June 3, 1985, James and Jeanine Twitchell filed a petition for relief under Chapter 7 of the Bankruptcy Code. Subsequently, the Credit Union filed an adversary proceeding against Mr. Twitchell to seek a determination that the debt owed to it by Mr. Twitchell was nondischargeable pursuant to 11 U.S.C. § 523(a)(2), (4), and (6).
Following a trial of this matter, the bankruptcy court made findings of fact and conclusions of law on the record. The bankruptcy court found that Mr. Twitchell, as president and treasurer of the Credit Union, owed the Credit Union the sum of $20,958.37 for his failure to apply proceeds from the sale of his home to satisfy a loan obligation, his unauthorized payment of payroll checks, his failure to withhold payroll taxes, his improper approval of a loan to W. LeGrand Ellison and himself, and his unauthorized release of the Credit Union's lien on his property. Despite these findings, the bankruptcy court initially held that the $20,958.37 debt was dischargeable due to the Credit Union's failure to prove the elements of reasonable reliance under section 523(a)(2)(A), the necessary fraud under section 523(a)(4), and the requisite intent under section 523(a)(6). On July 29, 1986, the bankruptcy court entered a judgment in favor of Mr. Twitchell. The court dismissed the complaint and awarded Mr. Twitchell attorney's fees and costs.
On August 22, 1986, the bankruptcy court heard the Credit Union's motion for a new trial or to amend the findings, conclusions *963 and judgment. After a hearing and review of this motion, the bankruptcy court denied the motion for a new trial but amended its findings and conclusions to hold that the $20,958.37 obligation was nondischargeable in bankruptcy. The court only amended its earlier findings and conclusions relating to the elements of proof under section 523(a)(4). The court held that the obligation arose from a defalcation by Mr. Twitchell while acting in a fiduciary capacity and was thus nondischargeable under 11 U.S.C. § 523(a)(4). The court granted judgment to the Credit Union in the amount of $20,958.37 plus interest, attorney's fees and costs. The amended judgment was entered on September 29, 1987, and the memorandum opinion was published in 72 B.R. 431 (Bankr.D.Utah 1987). Mr. Twitchell filed a timely notice of appeal on October 7, 1987.
Discussion
On appeal, the district court can reverse a bankruptcy court's judgment after a de novo review of questions of law or mixed questions of law and fact. In re Mullet, 817 F.2d 677, 679 (10th Cir.1987); In re Yeates, 807 F.2d 874, 877 (10th Cir.1987). On the other hand, a bankruptcy court's findings of fact are reversible only if they are clearly erroneous. Bankruptcy Rule 8013; In re Yeates, 807 F.2d at 876 (10th Cir.1986).
The sole issue on appeal is whether Mr. Twitchell was in a fiduciary capacity, within the meaning of section 523(a)(4), when the defalcations occurred. The bankruptcy court found that Mr. Twitchell had been acting in a fiduciary capacity within the meaning of section 523(a)(4) while serving as president and treasurer of the Credit Union. The court concluded that Title 7 of the Utah Code placed Mr. Twitchell, as an officer of a financial institution, in a fiduciary relationship to the Credit Union. By virtue of this fiduciary relationship, Mr. Twitchell was a "trustee" pursuant to state law and, thus, was in a fiduciary capacity for the purposes of section 523(a)(4). In re Twitchell, 72 B.R. 431, 434 (Bankr.D.Utah 1987). While serving in this fiduciary capacity, the court found that Mr. Twitchell committed various defalcations from the Credit Union in the sum of $20,958.37. Twitchell, 72 B.R. at 436.
The Section 523(a)(4) Exception to Discharge
Section 523 of the Bankruptcy Code provides certain narrow exceptions to a discharge. Section 523(a)(4) narrowly excepts from discharge in bankruptcy any debt based on a defalcation while acting in a fiduciary capacity. This provision provides as follows:
(a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt . . .
(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. . . .
11 U.S.C. § 523(a)(4).
The cases construe Code section 523(a)(4) very narrowly so as to not frustrate the fundamental policy of promoting the fresh start of the debtor. In re Black, 787 F.2d 503, 505 (10th Cir.1986). A central purpose of bankruptcy legislation is to provide the debtor with comprehensive relief from the burden of his debts by discharging him of virtually all of his debts. In re Cross, 666 F.2d 873, 879 (5th Cir.1982). Bankruptcy provides debtors "a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt." Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934). To these ends, courts have narrowly construed exceptions to discharge against the creditor and in favor of the debtor. Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1915).
Prior to 1970, the question of whether an individual debt was dischargeable was within the scope of state law jurisdiction. Amendments to the Bankruptcy Act in 1970 granted exclusive jurisdiction over questions of dischargeability to the bankruptcy courts in an effort to curb creditor abuses that had undermined the discharge of the bankrupt. See generally, In *964 re Huff, 1 B.R. 354, 356 (Bankr.D.Utah 1979) (citing S.Rep. No. 91-1173, 91st Cong., 2d Sess. (Sept. 16, 1970); House Judiciary Comm., H.R.Doc. No. 19-1502). Consequently, the question of who is in a fiduciary status for purposes of section 523(a)(4) is one of federal law. Black, 787 F.2d at 506.
Fiduciary Capacity
The term "fiduciary capacity" as defined by federal law, applies only to technical trusts, express trusts, or statutorily imposed trusts and not to fiduciary relationships which arise from an equitable or implied trust or an agency relationship. Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 153-54, 79 L.Ed. 393 (1934); In re Romero, 535 F.2d 618, 621 (10th Cir.1976); Savonarola v. Beran, 79 B.R. 493, 495 (Bankr.N.D.Fla.1987); In re Reder, 60 B.R. 529, 538-39 (Bankr.D.Minn. 1986); In re Myers, 52 B.R. 901, 904 (Bankr.E.D.Va.1985).
The term "fiduciary capacity" as used in section 523(a)(4) has its origin in the Bankruptcy Act of 1841. This Act provided that "all persons whatsoever, residing in any state, territory, or district of the United States, owing debts which shall not have been created in consequence of the defalcation as a public officer,[1] or as executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity" could, upon compliance with the Act, receive a discharge.
In 1844, the meaning of "fiduciary capacity" under the 1841 Act came before the Supreme Court in Chapman v. Forsyth, 43 U.S. (2 How.) 202, 11 L.Ed. 236 (1844). In Chapman, the Court held that a factor, entrusted with selling cotton for another, was not a fiduciary within the meaning of the bankruptcy law. The Court discharged the factor's debt, which arose from the factor's failure to remit sales proceeds to his principal. The Court gave the term "fiduciary capacity" a narrow construction, observing that a debt of a person, not covered under the specified exceptions, was dischargeable even though the person may be under a fiduciary obligation. Chapman, 43 U.S. (2 How.) at 207. Further, the Court speculated that if the 1841 Act discharged a debt of a factor who retained sale proceeds of his principal,
. . . it will be difficult to limit its application. [Accordingly, the 1841 Act] must include all debts arising from agencies; and indeed all cases where the law implies an obligation from the trust reposed in the debtor. Such a construction would have left but few debts on which the law could operate. In almost all the commercial transactions of the country, confidence is reposed in the punctuality and integrity of the debtor, and a violation of these is, in a commercial sense, a disregard of a trust. But this is not the relation spoken of in the first section of the act.
The cases enumerated, "the defalcation of a public officer," "executor," "administrator," "guardian," or "trustee," are not cases of implied, but special trusts, and the "other fiduciary capacity" mentioned, must mean the same class of trusts. The act speaks of technical trusts, and not those which the law implies from the contract. A factor is not, therefore within the act.
Id.
In 1934, the Supreme Court observed that the meaning of the phrase "acting in a fiduciary capacity" had been fixed by judicial construction for nearly a century. Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 153-54, 79 L.Ed. 393 (1934). The Supreme Court stated that the Chapman construction, that the statute "speaks of technical trusts, and not those which the law implies from the contract," had been applied with unbroken continuity. Id. (quoting Chapman v. Forsyth, 43 U.S. (2 How.) 202, 208, 11 L.Ed. 236 (1844)).
The Tenth Circuit Court of Appeals stated that the term fiduciary capacity, within the exception of section 17(a)(4) of the former *965 Bankruptcy Act,[2] "has been held to connote the idea of trust or confidence, which relationship arises whenever one's property is placed in the custody of another." In re Romero, 535 F.2d 618, 621 (10th Cir.1976). The court further recognized that "the exception under section 17(a)(4) applies only to technical trusts and not those which the law implies from a contract." Id. (citing Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 153, 79 L.Ed. 393 (1934)).
This case authority recognizes that the traditional definition of a "fiduciary" is not applicable in defining "fiduciary capacity" under section 523(a)(4). The general meaning of a fiduciary a relationship involving confidence, trust and good faith is far too broad for the purposes of section 523(a)(4). In re Cairone, 12 B.R. 60, 62 (Bankr.D.R.I. 1981). The Supreme Court favors a narrow construction of the term "fiduciary capacity" and defines the term as meaning arising from an express or technical trust. Davis, 293 U.S. at 333, 55 S.Ct. at 153-54.
Despite this narrow Supreme Court construction, a few cases hold that a debt due to a breach of a fiduciary duty by a corporate or bank officer is not dischargeable. See John P. Maguire & Co. v. Herzog, 421 F.2d 419, 422 (5th Cir.1970); In re Hammond, 98 F.2d 703, 705 (2nd Cir.1938); In re Overmyer, 52 B.R. 111, 118 (Bankr.S.D. N.Y.1985). These cases construe the term fiduciary capacity very broadly, requiring only that a fiduciary relationship exist between an officer and his corporation. Nevertheless, such a broad construction runs contrary to the stated judicial construction of "fiduciary capacity" by the Supreme Court. In addition, a central purpose of the bankruptcy Code is to further the fresh start of the debtor. Thus, the exceptions to discharge should be construed, in close cases, against the creditor and in favor of the debtor.[3]
To establish that Mr. Twitchell was in a fiduciary capacity, the Credit Union had the burden to show that Mr. Twitchell was a trustee pursuant to an express agreement or statute. Further, the Credit Union had the burden to show that the trust relationship existed before the defalcation occurred and that it did not arise ex maleficio. Romero, 535 F.2d at 621. The fiduciary relationship of Code section 523(a)(4) does not encompass ordinary commercial relationships such as those of a principal/agent or debtor/creditor. In re Ayers, 25 B.R. 762, 774 (Bankr.M.D.Tenn.1982). Therefore, the Credit Union must show that all of Mr. Twitchell's defalcations occurred while he was acting as a trustee and did not arise from his ordinary commercial transactions with the Credit Union.[4]
a. Express or Technical Trust
The elements for an express trust include (1) sufficient words to create a trust, (2) a clearly defined trust res, and (3) an intent to create a trust relationship. In re Kwiat, 62 B.R. 818, 821 (Bankr.D.Mass. 1986); see also Sundquist v. Sundquist, 639 P.2d 181, 183-84 (Utah 1984).[5] An *966 express or technical trust is distinguished from a trust the law implies from a contract. Romero, 535 F.2d at 621.
The Credit Union argues that the bylaws of the Credit Union established the management duties of Mr. Twitchell as an officer. In particular, the bylaws gave the office of the president the charge of "cash, securities, books of account and other valuable papers of the credit union." Bylaws of the Orem Postal Credit Union at 7.2.1.
Although the bylaws imposed a fiduciary duty upon Mr. Twitchell, as president and treasurer, the bylaws did not expressly create a trust, in any technical sense, of which Mr. Twitchell was responsible for. The bylaws did not contain language expressly creating a trust res or expressing the Credit Union's intent to make Mr. Twitchell a trustee. The resulting obligation cannot be turned into a trust by mere implication from the bylaws or because Mr. Twitchell is chargeable as a trustee ex maleficio. See Davis v. Aetna Acceptance Co., 293 U.S. at 333, 55 S.Ct. at 153-54.
At best, the bylaws created an implied trust. However, section 523(a)(4) does not exempt defalcations from implied trusts from discharge. In re Owens, 54 B.R. 162, 164 (Bankr.D.S.C.1984). This court is of the opinion that the Credit Union did not produce an agreement creating an express or technical trust which imposed trustee responsibilities on Mr. Twitchell.
b. Statutorily Imposed Trust
A statutorily imposed trust can place a debtor in a fiduciary capacity. In re Petersen, 51 B.R. 486, 488 (Bankr.D.Kan.1985). To show a fiduciary capacity from a statutorily imposed trust for the purposes of section 523(a)(4), a creditor must point to an express legislative intent to create a trust relationship in the statute. Matter of Campbell, 79 B.R. 496, 498 (Bankr.M.D. Fla.1987); In re Meyers, 52 B.R. 901, 905 (Bankr.E.D.Va.1985); In re Petersen, 51 B.R. at 488.[6]
Title 7 of the Utah Code generally regulates financial institutions pursuant to the Financial Institutions Act of 1981. Chapter 9 of Title 7 specifically regulates credit unions. It is clear from these regulations that the Utah legislature recognized that officers of financial institutions, including credit unions, have fiduciary duties to the institution. See Utah Code Ann. §§ 7-1-308 (Supp.1983) and 7-9-49 (Supp.1987). Nevertheless, there are no regulations in Title 7 that express a legislative intent to place a credit union officer as a trustee over funds belonging to the credit union.
The case of In re Meyers, supra, illustrates the requirement that a statute must state an express intent to create a trust relationship in order to show that a debtor was in a fiduciary capacity within the meaning of 11 U.S.C. § 523(a)(4). The debtors in Meyers operated a sporting goods business and sold hunting and fishing licenses for the State of Virginia. Pursuant to Virginia law, the debtors were required to collect and remit all proceeds of sold licenses to the state after deducting commissions. When the debtors' business took a downswing, the debtors applied proceeds from license sales toward business expenses. Meyers, 52 B.R. at 903. The Commonwealth of Virginia argued that the debtors' obligation was nondischargeable pursuant to 11 U.S.C. § 523(a)(4) because the debtors stood in a fiduciary relationship to the Commonwealth. Id. at 904. The bankruptcy court construed the pertinent Virginia statute as creating an agency relationship rather than an express trust relationship between the parties. Id. at 905. Consequently, after further discussion, the court held the obligation to be dischargeable in bankruptcy.
Several cases are instructive regarding the nature of a statutorily imposed trust for the purposes of section 523(a)(4). See generally, American Ins. Co. v. Lucas, 41 *967 B.R. 923 (D.W.D.Pa.1984); In re Meyers, 52 B.R. 901 (Bankr.E.D.Va.1985); In re Petersen, 51 B.R. 486, 488 (Bankr.D.Kan. 1985). After reviewing these cases, it appears that the Credit Union cannot point to a Utah statute that positions Mr. Twitchell as a trustee over the funds of the Credit Union. In the absence of statutory language expressly imposing a trustee status on Mr. Twitchell, the Credit Union cannot show that Mr. Twitchell was acting in a statutory imposed fiduciary capacity.
Attorney's Fees and Costs
Mr. Twitchell also seeks recovery of attorney's fees and costs expended in defending the dischargeability action. However, the appellant has not directed the court to any specific statute allowing the recovery of attorney's fees and costs for a prevailing debtor in a section 523(a)(4) action.
Code section 523(d) does allow the recovery of attorney's fees and costs when a creditor requests a determination of dischargeability of a consumer debt under section 523(a)(2) and under a narrow set of circumstances. Section 523(d) provides as follows:
(d) If a creditor requests a determination of dischargeability of a consumer debt under subsection (a)(2) of this section, and such debt is discharged, the court shall grant judgment in favor of the debtor for the costs of, and a reasonable attorney's fee for, the proceeding if the court finds that the position of the creditor was not substantially justified, except that the court shall not award such costs and fees if special circumstances would make the award unjust.
The legislative history to section 523(d) explains that this provision provides protection to a consumer debtor that dealt honestly with a creditor who sought to have a debt excepted on grounds of falsity in the incurring of the debt. The purpose of the provision is to discourage creditors from initiating frivolous dischargeability actions alleging false financial statements by the debtor. H.R. No. 595, 95th Cong. 1st Sess. 365 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 80 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5787, 5963.
The appellant has not briefed the court regarding the applicability of section 523(d) as a basis for the recovery of his attorney's fees and costs. Further, this court has no basis for finding that the Credit Union was not substantially justified in bringing its section 523(a)(2) action and that no special circumstances make the award unjust. Consequently, this court declines to award attorney's fees and costs incurred in defending the dischargeability action to Mr. Twitchell.
Conclusion
This court finds that the bankruptcy court's opinion that Mr. Twitchell was acting in a fiduciary capacity for the purposes of 11 U.S.C. § 523(a)(4) is incorrect based on existing case law and policy considerations which favor dischargeability. Under the circumstances of this case, no express agreement or statute placed Mr. Twitchell as a trustee over funds belonging to the Credit Union. Because the Credit Union made no showing that Mr. Twitchell was in a "fiduciary capacity" as construed under federal law, Mr. Twitchell's obligation of $20,958.37 is dischargeable in bankruptcy. Further, the appellant is not entitled to attorney's fees and costs.
Accordingly,
IT IS HEREBY ORDERED that the bankruptcy court judgment in regard to the dischargeability of Mr. Twitchell's debt to the Orem Postal Credit Union is REVERSED.
NOTES
[1] A "public officer" is commonly known to be a person legally elected or appointed to exercise governmental functions. Webster's New Collegiate Dictionary 925 (1979).
[2] Section 17(a)(4) of the former Bankruptcy Act which preceded Bankruptcy Code section 523(a)(4) provided that a petitioner's debts were nondischargeable if they "were created by his fraud, embezzlement, misappropriation or defalcation while acting as an officer or in any fiduciary capacity."
[3] Consistent with this fresh start policy, the Tenth Circuit has narrowly construed other exceptions to discharge in favor of the debtor. See generally, In re Mullet, 817 F.2d 677 (10th Cir.1987) (construing section 523(a)(2)); In re Compos, 768 F.2d 1155 (1985) (construing section 523(a)(6)).
[4] Generally, provable debts arising from ordinary commercial transactions between a debtor and a creditor are dischargeable. See Matter of Dove, 78 B.R. 630, 636 (Bankr.M.D.Ga.1986). Here, Mr. Twitchell's $20,958.37 debt to the Credit Union arose, in part, from his failure to satisfy a loan obligation and his improper approval of a loan to himself and Mr. Ellison. This portion of the debt appears to arise from ordinary commercial transactions and thus, for policy reasons, should be dischargeable.
[5] The Tenth Circuit Court of Appeals recognizes that "state law is an important factor in determining when a trust relationship exists." In re Black, 787 F.2d 503, 506 (10th Cir.1986). Sundquist describes the elements of an express trust as including an intent to create a trust and trust property that is clearly specified and set aside. Further, the essential terms of the trust must be clear to enable a court to enforce the resulting equitable duties. Sundquist, 639 P.2d at 183-84.
[6] This court is aware that certain dicta in In re Black, 787 F.2d 503, 506 (10th Cir.1986), may imply that as long as a state statute recognizes a fiduciary duty of an officer to a corporation, the officer is in a fiduciary capacity. After a closer analysis of this subject, however, this court believes that Code section 523(a)(4) requires a showing of a fiduciary relationship arising from an express trust. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/409117/ | 689 F.2d 69
111 L.R.R.M. (BNA) 2332, 95 Lab.Cas. P 13,782,3 Employee Benefits Ca 2101
Leo BROWN, et al., Plaintiffs-Appellants,v.INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE ANDAGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW),Defendant-Appellee.
No. 81-1296.
United States Court of Appeals,Sixth Circuit.
Argued June 24, 1982.Decided Sept. 16, 1982.
Arthur M. Rude, James R. Seastrom (argued), Muskegon, Mich., for plaintiffs-appellants.
A. Robert Kleiner, Grand Rapids, Mich., M. Jay Whitman (argued), Detroit, Mich., for defendant-appellee.
Before KEITH and MERRITT, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
PHILLIPS, Senior Circuit Judge.
1
This is a class action filed on behalf of former hourly employees of a bankrupt employer against an international labor union charging breach of duty of fair representation under a pre-ERISA pension fund agreement. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) is accused of negligent failure to monitor payments required to be made by the employer into the employee's pension fund.
2
Jurisdiction is based on § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, 29 U.S.C. § 159 and 28 U.S.C. § 1337. Plaintiffs sue for $2,244,880, the alleged deficit in the pension fund.
3
* The bankrupt employer was Lakey Foundry Corporation (Lakey), which for many years operated a grey-iron foundry in Muskegon, Michigan. Beginning in 1941 its hourly employees were represented by the UAW and its local 403. The Lakey Foundry pension plan was created in 1950 as a part of a collective bargaining agreement between Lakey and the Union. Under the terms of the plan, Lakey was required to maintain the pension fund at a level sufficient to guarantee each vested employee, upon retirement, a specific annual pension until death.
4
The plaintiffs are a class of all former Lakey hourly employees who have accrued vested benefits under the plan and who have not received their full benefits, due to insufficient money in the pension fund. When Lakey became bankrupt, the deficit in the fund became uncollectable. The plaintiffs charged that the insufficiency of funds is due to the failure of Lakey to make all of the contributions to the plan as required by the terms of the agreement; and that an employee of the UAW who also was a member of the Plan's Board of Administration was negligent in failing to monitor these payments which the employer was required to make.
5
The record shows that Lakey was in financial difficulty from 1960 forward. It suffered large losses in six of its last twelve years of existence, and only small profits in the other six years. It filed a voluntary petition for bankruptcy under Chapter XI of the Bankruptcy Act on February 7, 1972, and ceased operations.
6
The plaintiffs filed their complaint on August 7, 1973, before District Judge Noel P. Fox, who certified the plaintiffs' class, as stipulated by the parties, as:
7
All former hourly employees of the Lakey Foundry Corporation who are members of the collective bargaining unit represented by Defendant, and who have accrued a vested right to receive benefits from the Lakey Foundry Corporation Pension Plan, which has been terminated, but who will be unable to receive the full measure of such benefits because of any deficiency of funds held by the Trustee of said Plan.
8
UAW Local 403, which represented the employees in the plant in question, was originally a defendant. The Local was dropped by the First Amended Complaint, filed August 23, 1973, prior to answer.1
II
9
The present appeal is from a final decision of District Judge Douglas W. Hillman in favor of the UAW, reported at 512 F.Supp. 1337 (W.D. Mich. 1981). Reference is made to the comprehensive opinion of Judge Hillman for a recitation of pertinent facts.
10
Judge Hillman held that the UAW had breached its duty of fair representation because one of its employees, a member of the Board of Administration of the Pension Plan, failed totally to monitor Lakey's contributions to the Pension Fund. He further held, however, that the plaintiffs were not damaged by this conduct. Judge Hillman made several findings of fact which supported his conclusions: that, except for the years 1964 and 1969, no deficit existed in the pension fund until the close of the pension plan year ending 1970; that deficits caused by the failure of Lakey to make timely contributions for 1964 and 1969 were eliminated soon thereafter; that until 1970 Lakey paid the amounts minimally necessary to keep the fund "current," and the plan was on track until 1970; that: "(b)y late 1970 Lakey's financial condition was moribund (and) (n)o unsecured assets remained, and Lakey had increasing difficulty in obtaining credit;" that even if the Union had demanded payment for the 1970 and 1971 contributions, Lakey could not have complied; and that even if the UAW had known the size and frequency of Lakey's pre-1970 contribution, it could not have forced the company to contribute more money to the fund, "given Lakey's marginal existence throughout the 1960s."
11
The principal issue raised on this appeal is whether the foregoing findings of fact are clearly erroneous. The district judge, sitting without a jury, conducted an eight day trial and heard the testimony of thirteen witnesses, three of whom were experts; he also examined many exhibits.
12
It is well settled that, under Fed. R. Civ. P. 52(a), the findings of fact of a district judge sitting without a jury will not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. This court will not overturn findings of fact by the trial judge unless we are left with the definite and firm conviction that a mistake has been made. Thropp v. Bache Halsey Stuart Shields, Inc., 650 F.2d 817, 818 (6th Cir. 1981); Thompson v. National Railroad Passenger Corp., 621 F.2d 814, 817-18 (6th Cir.), cert. denied, 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497 (1980); Markowitz & Co. v. Toledo Metropolitan Housing Authority, 608 F.2d 699, 704 (6th Cir. 1979); Buckeye Power, Inc. v. Utility Workers Union, 607 F.2d 759, 761 (6th Cir. 1979). This same standard applies in this Circuit even when the findings are based on documentary, rather than testimonial, evidence. Alexander v. Youngstown Board of Ed., 675 F.2d 787, 795-96 (6th Cir. 1982).
13
We conclude that even if some of the findings of the district judge are technically incorrect, as the appellants assert, at least two of the district judge's findings are not erroneous and, standing alone, support his finding of no causation. These are the last two findings listed above: that Lakey could not have complied with demands for contributions during 1970 or 1971 and that the UAW could not (or would not) have forced Lakey to alter its pre-1970 payment schedule.
14
After 1970, Lakey was essentially insolvent, and it clearly was unable to contribute to the fund. Throughout the 1960s, Lakey was in financial trouble. 512 F.Supp. at 1345-47. The Union tried to help Lakey stay in business. In 1966 and 1970, the Union supported altering the State Workers' Compensation Trust Fund requirements in favor of the company so that Lakey could continue operations. In 1969, the Union also interceded on Lakey's behalf so that Lakey could gain permission to borrow from the Workers' Compensation Trust Fund in order to purchase pollution control equipment. Even if the appellants are correct in their assertion that the district judge was erroneous in his determinations (1) that Lakey was not required under the Plan to make larger contributions, based upon a "cost" basis rather than a "market value" basis, and (2) that Lakey was not always one year behind in its payments to the Fund, we still affirm the finding of the district court of no causation. Throughout the 1960s the Union would have been either unable to force Lakey to make larger payments because of Lakey's financial condition, or unwilling to make such demands for fear that such action would "kill the company."
15
Further, it is clear from the decision of the district judge that he credited the testimony of the expert witnesses for the defense and discredited the testimony of the expert for the plaintiffs. In particular, he credited the testimony of the defendant's expert actuary as to practices in the administration of employee retirement plans before Congress enacted the Employment Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA). He also credited the testimony of the defendant's other expert as to the consequences if the Union had attempted to force Lakey to increase its contributions to the Fund.
16
For these reasons we conclude that the finding of no causation by the District Court is not clearly erroneous.
III
17
In the present case we do not reach the issue of what degree of negligence on the part of the Union is required to constitute unfair representation. Cf. Ruzicka v. General Motor, et al., 649 F.2d 1207, 1211-12 (6th Cir. 1981); Hoffman v. Lonza, Inc., 658 F.2d 519 (7th Cir. 1981).
18
We express no view as to the correctness or incorrectness of the holding of the district court that the UAW breached its duty of fair representation because one of its employees, as a member of the Board of Administration of the Pension Plan, failed to monitor Lakey's contribution to the Pension Fund. We find it unnecessary on the present appeal to reach the issue of whether the Union was guilty of such conduct as to constitute a breach of unfair representation under the pre-ERISA pension trust here involved.
19
It has been suggested that failure by a union to monitor a pension fund may amount to a breach of the duty of fair representation. Nedd v. United Mine Workers, 556 F.2d 190, 200 (3d Cir. 1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 757 (1978). But see Turner v. Local No. 302, 604 F.2d 1219, 1227-28 (9th Cir. 1979).
20
Indeed, in light of recent decisions of the Supreme Court, there is a serious question as to whether a Union can be held vicariously liable for the acts of its members when they are performing as pension fund trustees. See General Building Contractors Ass'n., Inc. v. Pennsylvania, --- U.S. ----, ----, 102 S.Ct. 3141, 3152, 73 L.Ed.2d 835 (1982); United Mine Workers of America Health & Retirement Funds v. Robinson, --- U.S. ----, 102 S.Ct. 1226, 71 L.Ed.2d 419 (U.S. 1982); NLRB v. AMAX Coal Co., 453 U.S. 322, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981). In AMAX Coal, the Court held that a trustee for a pension fund must act exclusively for the benefit of the plan's beneficiaries and not for the interest of the party that appointed him. It is arguable that the Union's representative could not act as an agent of the Union when performing, or failing to perform as in the present case, his duties as a fiduciary, because the Union had no right to control him when he acted in that capacity. Court of Appeals decisions interpreting AMAX Coal support a conclusion that, except in special situations, a Union may not be held vicariously liable for the acts of its members or representatives as pension fund trustees. See NLRB v. Driver Salesmen Local No. 582, 670 F.2d 855, 857-60 (9th Cir. 1982); Central Florida Sheet Metal Contractors Ass'n. v. NLRB, 664 F.2d 489, 499-502 (5th Cir. 1981).
21
Under the recent decisions, it may be that any right of action the appellants had under the facts of the present case would have been against the members of the Board of Administration of the Pension Trust, and not against the UAW. This issue was not raised by the parties either in their briefs or during oral argument, and, in view of our disposition of the appeal, we need not decide the question here.
IV
22
Appellants further contend that the district court erred in finding that the claims of breach of fiduciary duty and breach of third party beneficiary contract under Michigan law were without merit. We conclude that the finding of the district court on the causation issue forecloses these claims as well.
23
The judgment of the district court is affirmed. No costs are taxed. The parties will bear their own costs in this court.
1
After further discovery, the plan's actuary, A. S. Hansen, Inc., was joined as cross-defendant by order of the court. Plaintiffs also moved for leave to file a Third Amended Complaint adding Hansen, Inc., as a defendant. Hansen, Inc. filed a motion that District Judge Fox recuse himself. In a written opinion filed June 22, 1978, Judge Fox denied the motion for recusal. On November 2, 1978, a panel of this court denied a petition for mandamus or prohibition, holding that the petitioner failed to demonstrate that Judge Fox abused his discretion in denying the motion for recusal
After Judge Fox had taken senior status, the case was transferred to District Judge Douglas W. Hillman. In an opinion published at 85 F.R.D. 328 (W.D. Mich. 1980), Judge Hillman denied plaintiffs' motion for leave to file a Third Amended Complaint adding Hansen as a party defendant; vacated the order joining Hansen as a cross-defendant; and struck UAW's cross complaint against Hansen. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3965008/ | The conviction is for burglary; penalty assessed at confinement in the penitentiary for life.
The indictment, in addition to charging the offense of burglary, also avers that appellant has been twice convicted of felonies less than capital, namely: On the 31st day of May, 1933, appellant was convicted in the Criminal District Court of Tarrant County, Texas, in cause No. 35675 of the felony of burglary; and on the 11th day of April, 1930, he was convicted in the District Court of the United States for the Northern District of Texas, at Fort Worth, Texas, in cause No. 4473 of a felony for the violation of the Harrison Narcotic Act.
By reason of the repetition of offenses, the jury was authorized to impose the enhanced penalty permitted by Art. 63, P. C., 1925, which reads as follows:
"Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary."
The above principle has been upheld by the decisions of this court. See Arnold v. State, 74 S.W.2d 997; Pullen v. State,84 S.W.2d 723; Pueblo v. State, 69 S.W.2d 768.
The record is before us without statement of facts and bills of exception, in consequence of which the sufficiency of the evidence must be presumed.
The motion for new trial fails to reveal any fault in the procedure authorizing interference with the result of the trial.
The judgment is affirmed.
Affirmed. *Page 9
ON MOTION FOR REHEARING. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1618173/ | 200 N.W.2d 276 (1972)
Orville L. STUBER, Plaintiff and Appellant,
v.
Geraldine TAYLOR and James A. Rea, individually and as Co-executors of the Estate of Ruby F. Rea, Deceased, Defendants and Respondents.
Civ. No. 8741.
Supreme Court of North Dakota.
August 29, 1972.
*277 Bjella & Jestrab, Williston, for plaintiff and appellant.
Mackoff, Kellogg, Kirby & Kloster, Dickinson, for defendants and respondents.
FRIEDERICH, District Judge.
This action was instituted in the District Court of Bowman County by Orville L. Stuber as Plaintiff, individually, and as administrator of the estate of J. C. Stuber, deceased, against the defendants, individually, and as co-executors of the estate of Ruby Rea, deceased. The Complaint prays for an injunction against the removal and destruction of records, for an accounting and for judgment in the amount found to be due. The trial court found the evidence insufficient to establish the right to an accounting and ordered a dismissal.
Although additional relief was prayed for in the Complaint, no specifications of error are recited by the Appellant, and we interpret the action as one for an accounting *278 and the appeal from the trial court's finding that the Appellant failed to prove his right to compel an accounting.
The Appellant is the only son and Ruby Rea was the only daughter of J. C. and Anna Stuber, deceased. Respondents Geraldine Taylor and James A. Rea, are the surviving children of Ruby Rea, deceased, and co-executors of her estate.
J. C. Stuber, during his lifetime, accumulated extensive financial interests in farming and ranching, operated an implement business, farm and ranch store, a lumber yard, held mining, oil and gas rights, along with other real estate and investments. He died on December 19, 1963 at the age of 91, leaving surviving him his wife, Anna Stuber, and the two children, Appellant herein and Ruby Rea. Orville L. Stuber was appointed administrator of his father's estate on January 9, 1964.
On March 23, 1956 or about seven years before his death, a power of attorney was given by J. C. Stuber to his daughter, Ruby Rea. In February of 1959 Ruby Rea negotiated and executed a contract on behalf of her father as his attorney in fact for the sale of his partnership interest in the Stuber Implement Company to Orville L. Stuber for the sum of $70,000.00. At the time the power of attorney was executed, J. C. Stuber was ill and in the hospital, and on November 1st of the same year he assigned his interest in the lumber business to Ruby Rea by written assignment. (He continued in the personal management of his holdings thereafter to a greater or lesser extent until his death.) Anna Stuber, his wife, participated very little in the actual business affairs of her husband either before or after his death.
Ruby Rea was in ill health for a major part of her life, being afflicted with a heart condition. She was divorced and during the latter part of her life resided in Bowman, North Dakota, the same town in which her parents lived. She died on November 25, 1965. The Respondents are not only the co-executors of her estate, but also the sole legatees and devisees under her will. Anna M. Stuber died on July 20, 1968 at the age of 85.
During the lifetime of J. C. Stuber the Appellant Orville L. Stuber took an active part in the operation of the farming and ranching business with his father. The Stuber Implement Company and the Stuber Farm and Ranch Store were operated as corporations for some years prior to the death of J. C. Stuber. Appellant Orville L. Stuber owns three-fourths of the stock in the implement corporation and approximately one-half of the stock in the Farm and Ranch Store and the Stuber Land Company. Ruby Rea was a minor stockholder in these corporations. The corporations were regularly audited by a certified public accountant, and according to the testimony, past corporation records were in the family home of J. C. Stuber at Bowman, North Dakota, following his death until the family home was sold to Appellant's son. Prior to the time the house was sold these records were equally as accessible to the Appellant as to Ruby Rea. The Respondents at no time had actual possession of the records, and know very little about their mother's business affairs.
The transfer of funds which is claimed by Appellant as the basis for the accounting came about on March 13, 1956 when J. C. Stuber, then ill and in the hospital, drew a check on his personal account at the First National Bank of Bowman made payable to himself and to his wife, Anna Stuber, jointly, in the sum of $166,499.66. This draft closed out his personal account in First National and he re-opened a joint account with his wife on the same date in the same bank. Six days later on March 19, Anna Stuber drew two checks on this joint account of $50,000.00 each whereby she opened a checking account in the First National Bank of Hettinger and in the Buffalo State Bank at Buffalo, South Dakota, respectively. Both accounts were joint with right of survivorship in the names of Anna Stuber and Ruby Rea.
*279 On April 2, 1956, Anna Stuber drew a check to herself on the account of the First National Bank of Bowman for $50,000.00 which she endorsed. The money was used for the purchase of $15,000.00 worth of Series E Bonds, $20,000.00 worth of Series H Bonds, and the remaining $15,000.00 was paid over to Ruby Rea in the amount of $3,000.00 and to Orville L. Stuber in the amount of $12,000.00.
Although the records are fragmentary, there is no question that Ruby Rea drew a substantial number of checks on the joint account of Anna Stuber and Ruby Rea in the First National Bank of Hettinger and the Buffalo State Bank in South Dakota. J. C. Stuber and Anna Stuber continued to make other deposits and withdrawals from the joint account in the First National Bank of Bowman subsequent to the three $50,000.00 checks previously referred to. Although only $16,499.66 of the initial deposit would have remained, the evidence shows withdrawals of over $90,000.00 thereafter.
Between 1956 and 1963 a total of over $600,000.00 in property was reported to the Internal Revenue Service as gifts to Orville L. Stuber and Ruby Rea; the greater portion of these gifts having been made to Ruby Rea.
Upon trial the able and experienced trial judge had the benefit of a certified public accountant as well as the testimony of a witness who did the bookkeeping for J. C. Stuber from 1948 until his death, and who now does the bookkeeping for the Stuber Implement Company. The accountant made a thorough examination of such books and records as were available, but a complete audit was difficult to make for the reason that some records were missing. After a careful consideration of all the evidence in the case, the trial court in his memorandum stated:
"The Plaintiff in this action seeks to establish a fiduciary relationship by showing that Ruby Rea was a member of a partnership with Orville and Anna Stuber and also by showing that she as agent under the Power of Attorney as executed by J. C. Stuber acted in a fiduciary capacity.
"In this there is no evidence that Ruby F. Rea was ever engaged in any business as a partner with the Plaintiff in this action. There is no evidence that Ruby F. Rea was ever engaged in any business as a partner with either J. C. Stuber or Anna Stuber. The evidence conclusively shows that the only possible fiduciary relationship existing between any of the parties in this case is by virtue of the Power of Attorney granted by J. C. Stuber to Ruby Rea. The Court has before found that Ruby Rea accounted in full for all money she received pursuant to the Power of Attorney. There is no duty to render a further account. That the Corporations in which J. C. Stuber was interested were not managed by Ruby F. Rea. That an annual audit was had of such corporations and there is no evidence that Ruby Rea was in any manner indebted to any of said corporations.
"The Plaintiff has failed to show that a fiduciary relationship existed between him and Ruby Rea or that a fiduciary relationship existed between Ruby Rea and J. C. Stuber or Anna Stuber. Neither has it been shown that any duty rested upon Ruby F. Rea or upon the Defendants in this case to render an account.
"Before the duty of a fiduciary to account arises it is essential that complainant establish not only the confidential or fiduciary relationship between the parties but also the receipt by the fiduciary of the funds to be accounted for.
"(Minn.) [231 Minn. 548] 44 N.W.2d 224, Physicians and Hospitals Supply Co. v. Johnson.
"`Equity will not take jurisdiction on an accounting where there is no relation of trust and the accounting is not complicated, and is merely a basis for ascertaining damages.
*280 "`Kilgore v. Farmers Union Oil Co., (N.D.) [74 N.D. 640] 24 N.W.2d 26.
"`A çomplaint stating a good cause of action does not as a matter of course give Plaintiff the right to an accounting. Before an accounting is in order, all matters in bar of an accounting should first be disposed of.
"`Munce v. Munce, (S.D.) [77 S.D. 594] 96 N.W.2d 661.'
"The Plaintiff has failed to prove facts sufficient to entitle him to an accounting in this matter."
As pointed out in the foregoing quotation, an accounting is never ordered as a matter of course. Historically such an action was first founded in law, but the delay, complexity and cost of an accounting action generally made the equity courts a more adequate forum. Convenience and efficiency are not the only criteria, however. To warrant examination by the equity court, there must be more than just the existence of an account. There must be one or more of the following: (1) a fiduciary relationship with a duty upon the confidant to render an account; (2) a mutual or complicated account; (3) a particular need for a discovery; or (4) some other basis for equitable jurisdiction. 1 Am. Jur.2d, Accounts and Accounting, Sec. 51; 1 C.J.S. Accounting § 14.
The Appellant on cross examination admitted that no accounting was necessary with reference to the corporations, Stuber Land Company, Stuber Implement Company and Stuber Farm and Ranch Store. We conclude from this testimony that as to these business enterprises the case is abandoned. There remains for examination only that portion involving the power of attorney and the joint bank accounts with Anna Stuber.
A power of attorney creates an agency relationship between the principal, the one conferring the power, and the agent, upon whom the power is conferred.
It is not necessary for purposes of this discussion to define the myriad legal implications of a power of attorney. Suffice to say that because it is an agency relationship, the agreement by the agent to act on behalf of the principal causes the agent to be a fiduciary. Restatement of Agency 2d, Sec. 13. Among the duties of the agent in such a relationship is the duty to account for profit arising out of the agency and the duty to deal fairly with the principal in all transactions between them. Restatement of Agency 2d, Sec. 288.
If the fiduciary relationship created by the power of attorney justifies an accounting, then the Appellant's position is well taken. We have examined all testimony relative to the power of attorney and can find only one transaction in which this authority was used. We refer to the sale of the J. C. Stuber interest in Stuber Implement Company to the Appellant for the sum of $70,000.00. The evidence rather conclusively establishes that the $70,000.00 payment has not been made by the Appellant, nor was it listed on the inventory of the J. C. Stuber estate. No funds came into the possession of Ruby Rea by this sale for which she or her successors in interest could be required to account.
Much emphasis is placed by the Appellant upon the close proximity between the time the power of attorney was executed and the creation of the joint bank accounts of Anna Stuber and Ruby Rea. The joint bank accounts, however, are totally independent of the power of attorney. The signature card at the First National Bank of Hettinger did not purport to be signed by Ruby Rea under the authority of the power of attorney, nor were there any drafts on this account made by her in any other form than in her own name. Nothing is shown to have been otherwise in the account at the Buffalo, South Dakota, bank.
In addition to the contention that no fiduciary relationship existed which would demand an accounting, the Respondents resist *281 the action on the grounds that even if an accounting had been justified at one time, it is now barred by limitation and laches. Courts of equity have inherent power to refuse relief after undue and inexcusable delay notwithstanding any statute of limitation. Laches, under these circumstances, is founded upon the equity of granting relief after a long and material change in the conditions of the property or relations of the parties. Not only did J. C. Stuber live for almost eight years after the power of attorney was executed, but Ruby Rea survived him by two years and Anna Stuber lived for two and one-half years after the death of Ruby Rea. The action here was not commenced until March of 1969 after the death of the three individuals who could have best explained the purpose or intent of the transactions being questioned.
The Appellant lived in the same town and was associated with his father in a number of business ventures long before the power of attorney was executed and the joint accounts created, and this association continued until his father's death. His sister also lived in the same town and continued her participation in the family enterprises after her father's death until she died. The mother continued to live in Bowman until her death. Appellant was the executor of his father's estate since January of 1964. It is inconceivable that he should have been unaware of any irregularity or mishandling of funds by his sister during all of this time. He neither individually nor as administrator of the J. C. Stuber estate saw fit to file a claim against the Ruby Rea estate. The inequity of forcing an accounting at this later date is best expressed by the axiom: "He who consents to an act is not wronged by it." Sec. 31-11-05(6) NDCC.
"Whether or not in a proceeding in equity the statute of limitation applies, the principal may be barred by laches by failing to take reasonable advantage of equity rights against the agent. He is barred by laches only if he has been unreasonable in delaying after learning the facts or if a hardship would result to the agent or to a third person because of a change of circumstances or because of the likelihood that relevant evidence could no longer be obtained." Restatement of Agency 2d, 421A(d). See also: Sequin v. Madison, 328 Mich. 600, 44 N.W.2d 150 (1950).
No good purpose would be served by discussing in detail the more than 100 exhibits in this case. We have examined the record and have given due consideration to all of the evidence. Although the suit is tried de novo in this court upon the record, nonetheless it is well established that upon disputed questions of fact the findings of the trial court thereon, though in no sense binding upon this court, are entitled to appreciable weight. From our own independent investigation and consideration of the record, there appears no valid reason for disturbing the decision of the trial court.
Judgment is affirmed.
STRUTZ, C. J., and TIEGAN, KNUDSON, and PAULSON, JJ., concur.
ERICKSTAD, J., deeming himself disqualified, did not participate; RAY R. FRIEDERICH, District Judge of the Second Judicial District, sitting in his stead. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618190/ | 41 Mich. App. 393 (1972)
200 N.W.2d 370
PEOPLE
v.
STEDMAN.
Docket No. 10408.
Michigan Court of Appeals.
Decided June 26, 1972.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Donald A. Johnston III, Chief Appellate Attorney, for the people.
Arthur J. Tarnow, State Appellate Defender, and David A. Goldstein, Assistant Defender, for defendant.
Before: J.H. GILLIS, P.J., and R.B. BURNS and DANHOF, JJ.
Leave to appeal applied for.
DANHOF, J.
The defendant was convicted of sale of narcotics. MCLA 335.152; MSA 18.1122. He was sentenced to a term of 20 to 21 years and he now appeals. We affirm.
At the trial the defendant produced witnesses who testified to his reputation for truth and veracity and to his general good character. Before these witnesses had testified the defendant had offered the following testimony on direct examination:
*395 "Q. Have you had any arrests and convictions, yourself, for any crimes?
"A. Oh, boy. It is kind of hard to say. I know I have had assault and battery well, assault, contributing. I don't know if they ran that together or if it is, you know, all one.
"Q. This was some time ago?
"A. Yes.
"Q. You are 22 now?
"A. Right.
"Q. Other than traffic offenses, you had no other arrests and convictions?
"A. Right.
"Q. Have you never been in
"A. I can't exactly
"Q. You have never been in prison?
"A. No, I haven't.
"Q. You never have had any, for instance, as Johnson pointed out, any felony charges against you whether you were convicted or not?
"A. Well, I had that one, it was I got pulled over with my car and I had a it was an antique bayonet in the car and I got charged for a felony on that. When we went to court, it was lowered to, I believe it was a misdemeanor.
"Q. What would this have been, possession of a deadly weapon or something? A concealed weapon?
"A. Well, that's what they charged me with at first and then they dropped it.
"Q. This was when you had an antique bayonet in the car
"A. Right.
"Q. and were stopped?
"A. Right."
The prosecutor when cross-examining one of these character witnesses asked if the witness knew of the defendant's arrest for several offenses. Ordinarily an inquiry into an arrest which did not result in a conviction is improper. However, when the accused has placed his character in issue by *396 producing character witnesses, these witnesses may be asked if they have heard of other acts of misconduct. People v Hill, 258 Mich. 79 (1932).
The defendant argues that reversible error is present because of the way in which these questions were framed. We agree with the defendant that the questions were not properly worded. The proper form of the question is "Have you heard" not "Do you know"; however, we do not believe that the use of "Do you know" is automatically reversible error. The defendant has cited no cases where a judgment of conviction was reversed because of this defect in the questions and we have found none. In People v Rosa, 268 Mich. 462 (1934), a case cited by the defendant, it appears that the "Do you know" form of question was used yet the judgment of conviction was affirmed.
In the case at bar, the defendant opened the door to an inquiry into arrest by his own testimony. No objection was made to the form of the question. The trial court instructed the jury as follows:
"In addition to that, there has been some questions asked by the prosecuting attorney by the relative to Mr. Gamelin's knowledge of any arrests which did not result in conviction, and I should instruct you that the sole purpose of those questions is to test the credibility of Mr. Gamelin's opinion about Mr. Stedman as to whether he had knowledge of such facts upon which he was basing his opinion, and they are not those questions and the answers thereto are not to be taken by you as substantative evidence of the alleged offenses involved, because they are not offered for that purpose. They are offered solely for the purpose of testing Mr. Gamelin's credibility as a witness to give an opinion as to the reputation of Mr. Stedman in the community in which he resides, and that is the sole purpose, and you are to consider them for only that purpose."
*397 On the facts of this case, we do not find reversible error.
The defendant contends that reversible error was committed when, in the course of instructing the jury, the trial court made the following remark: "He is unable, of course, to explain how Mr. Johnson did end up with some heroin". This statement was made during the course of the trial judge's discussion of the defendant's theory of the case. A more complete excerpt of the charge reads as follows:
"Now, what are the claims of the defendant? It is the claim of the defendant that he is a young man, 22 years old, operating a motorcycle shop at the corner of Hall and South Division; that he had met Johnson on about four occasions prior to the evening of December 20, 1969; that he is married, lives with his wife at the address on Birchwood in the City of Wyoming; that on this particular night his grandmother was at the home, just before Christmas, and that sometime around 11 o'clock Fred Johnson came to the home; that he came to the side door, that he knew when he came to the home, because of his own associations with a number of different people, that he was coming there in order to attempt to buy narcotics; that he talked to him while he was in the dining room and across a counter which led into the kitchen, and that at no time did Johnson go any farther than the kitchen of the place; that his grandmother did not see him, nor did his wife see him in the premises, but that some talk did take place; he was asked if he had any narcotics, he said that he did not, that he had none to sell and, as a result, that Mr. Johnson said, well, he was going to Kalamazoo tomorrow and did he want him to buy any for him in Kalamazoo, and that he said he did not; that at no time did he sell or offer to sell or have anything to do with the sale of any narcotics to Mr. Fred Johnson at that time. He is unable, of course, to explain how Mr. Johnson did end up with some heroin, but it is his claim it could have come from any number of sources; *398 that he could have it secreted on his person or that he could have gotten it at 563 Lafayette, or at any other time he could have had the narcotic, and that at no time did he sell or give it to him."
Taken out of context and standing alone, the trial court's remark could be considered reversible error. However, jury instructions are read as a whole.
The statement complained of is susceptible of two interpretations. First, that the court was placing the burden of showing where the narcotics came from on the defendant, or second, that the court was merely remarking that under the defendant's theory of the case he would, of course, have no knowledge of the source of the heroin. When we read the entire charge, including the instruction on the burden of proof, we do not find this single statement to be reversible error. We note also that any error could easily have been corrected by a supplemental instruction and one was not requested.
The defendant contends that he was prejudiced by various remarks of the prosecutor. We find no merit to this contention.
The defendant argues that his conviction should be reversed because of an alleged suppression of evidence by the prosecutor. In support of this contention the defendant has filed a number of affidavits and exhibits. We are not disposed to conduct a trial by affidavit. Issues of this type must be raised on a motion for a new trial.
We find no merit in the defendant's contention that his sentence constitutes cruel and unusual punishment.
Affirmed.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618184/ | 41 Mich. App. 446 (1972)
200 N.W.2d 354
SIMONETTI
v.
RINSHED-MASON COMPANY.
Docket No. 11220.
Michigan Court of Appeals.
Decided June 26, 1972.
Cicinelli, Mossner, Majoros, Harrigan & Alexander, for plaintiffs.
Davidson, Chaklos, Jungerheld & Hoffman, for defendant.
*449 Before: R.B. BURNS, P.J., and HOLBROOK and O'HARA,[*] JJ.
Leave to appeal denied, 388 Mich. 784.
HOLBROOK, J.
This is a products liability-negligence action heard by a jury.
On September 4, 1963, plaintiff Louis Simonetti was an employee of the Baker Perkins plant in Saginaw, Michigan. He was assisting a co-employee in welding an inspection plate on a piece of machinery. The machine had been previously cleaned by the use of defendant's product, Synthetic Thinner, ER-59. When the welder arced his machine to start welding, the residue and vapors of ER-59 ignited and exploded. Plaintiff Louis Simonetti was severely and permanently injured. Plaintiffs claimed that ER-59 had a dangerously low flash point, was exceedingly flammable, and that the defendant in selling the product to Baker Perkins knew, or should have known, that it was being used for washing and cleaning machinery. The negligence claimed herein consisted of defendant's failure to adequately label the product and warn of the dangerous explosive properties of ER-59. Virginia Simonetti's action was for loss of consortium.
Defendant denied liability contending there was no carelessness, negligence or violation of duty in the manufacture and sale of its product.
The jury returned a verdict of $415,000 for Louis Simonetti, and $60,000 for his wife Virginia. Defendant has appealed.
Defendant's first claim of error is grounded upon the court's refusal to grant summary judgment or directed verdict.
Defendant asserts that reasonable minds could *450 not differ in finding there was no proof whatsoever to conclude that defendant should have anticipated or foreseen welding and product use under such circumstances. There is no evidence that the paint thinner had any defect that would make it unsafe for use in the usual way. Plaintiff and his co-workers knew of the flammable nature of the product because it was stored in a separate building with other flammable materials, there was a red cautionary label on the big drums, it was dispensed in one-gallon safety cans, used in a ventilated area where fire extinguishers and no-smoking signs were posted. Prior to the explosion, plaintiff was present at a discussion regarding the advisability of welding and was worried about the safety of welding in the presence of strong vapors, although he did nothing about his worries. In such surroundings and under such circumstances, to subject the paint thinner to a 2000° welding arc transcends ordinary or reasonable use of the product. It was foolhardy and careless and every reasonable intelligent adult would know better than to take such a chance. The trial court should have found that defendant was not negligent as a matter of law. The motions for directed verdict or summary judgment were in order and should have been granted.
Plaintiffs reply by asserting that a trial judge is almost never justified in taking a negligence case from the jury and deciding the case as a matter of law. The large 55-gallon drums in the separate building contained a small red label or shipping tag which said:
"Keep AWAY from FIRE, HEAT and OPEN-flame LIGHTS
"CAUTION
*451 "LEAKING Packages Must Be Removed to a Safe Place
"DO NOT DROP
"This is to certify that the contents of this package are properly described by name and are packed and marked and are in proper condition for transportation according to the Regulations prescribed by the Interstate Commerce Commission
"INMONT CORP, 5935 Milford Ave, Detroit, Mich. 48210"
The label did not give any indication that the product was highly volatile or explosive. While it could be inferred that the product might be flammable under certain conditions, there was no warning that the product vapors or fumes could ignite and cause a tremendous explosion hours after the substance had been used.
Defendant should have been aware that the paint thinner was being used as a cleaner. Witness Caulton Ray, who qualified as an expert in chemistry and generally as to the manufacture of chemical products around the nation and the uses to which these products were put, clearly indicated that it was a well-known fact among chemical manufacturers that paint thinners were frequently used as a "wash". Further, Mr. Ray testified as to the sufficiency of the warning label on the subject 55-gallon drum as follows:
"Q. Now, back in 1963, Mr. Ray, and before, was there a basic minimum standard of conduct that chemical manufacturers, or formulators, or corporations which market chemicals, customarily followed? Was there a standard, or custom, or practice, that they customarily followed in the labeling of fluids that you have mentioned, solvents, including solvents like Rinshed-Mason ER-59, with its characteristics that you found on the test?
"A. Yes, there were.
*452 "Q. There were. All right, and were you familiar with those standards and those customs back then in 1963?
"A. Yes.
"Q. And can did manufacturers of these materials generally, most of them generally follow that custom?
"A. Well, my experience has shown that.
"Q. Was that standard of labeling products like this, Mr. Ray, was that standard good labeling practice, insofar as the minimum was concerned, in your opinion?
"A. I would say it could be acceptable. Good is a rather strong term in this sense, being a chemist.
"Q. But what the industry generally did was acceptable?
"A. Right.
"Q. So that you were then acquainted with the custom in that regard, upon the manufacturers of reducers or thinners, as to what warning labels were supposed to be put on their products, supposed to warn the users; is that correct?
"A. Yes.
"Q. Now, what was that labeling standard that manufacturers customarily followed in labeling of their products? What was it designed to do?
"A. It was designed to warn and/or caution the user as to how the material should be used, or how it should not be used.
"Q. All right, now that would be an instruction as to its use. Would there be any standards as to warning the consumer about the dangers of the product?
"A. Yes.
"Q. All right. Now, with respect to this kind of material, this kind of solvent with this kind of a flashpoint, Mr. Ray, were there, back in 1963, were there key phrases that were applied to materials like this that had flashpoints at four or ten degrees? Were there key phrases that were part of that custom?
"A. Yes.
"Q. All right. And were these key phrases, or key words, applied depending upon how volatile or how nonvolatile the material was?
*453 "A. Yes.
"Q. Can you tell us now, Mr. Ray, what was that custom that was followed back in 1963 by the chemical industry and trades labeling these materials to the user?
"A. Well, the custom at the time was that the recommendations were based on the flashpoint of the material. If the material had a flashpoint of 20 degrees or lower, it was labeled danger, caution, extremely flammable, or vapors explosive, use in well-ventilated area, keep away from fire, flame, anything of this nature, and there was also, following that, a health hazard warning, and the next category would be if it was between 20 and 80 degrees Fahrenheit, it would say caution, flammable mixture, use in well-ventilated area, keep away from flame, and the same health hazard and warning, and then when the temperature exceeded 80 degrees, that's 80 to 150, or some temperature above that, it would say combustible, and to use in well-ventilated area, and the health warning.
"Q. All right. Of those three categories that you have described, where did Rinshed-Mason's fluid fall into place?
"A. Well, our tests showed that it fell into the area of below 20 degrees, which is the where it says extremely flammable, explosive, vapors explosive, use in well-ventilated area.
"Q. And insofar as a warning that was customarily given back in 1963, what is it about this Rinshed-Mason fluid, what is the dangerous aspects of this fluid that would give you the single word danger to a person? What is it about this mixture?
"A. Well, the flashpoint, the volatility, that it would vaporize rapidly at room temperature.
"Q. It's the vapors then?
"A. Right, it's the vapors.
"Q. The warning then was customarily made at that time to tell somebody about the dangers of the vapors?
"A. That is correct.
"Q. Now, I want you to assume, Mr. Ray, that back in 1963, the Rinshed-Mason Company sold and shipped 55 gallon drums, such as you saw in that shed back on *454 September 5, 1963, with markings on the drums, such as you read to us here this morning in court, I want you to assume that they did that back in 1963, markings Reducer S30 ER59 S302018 B180856 XXX-XX-XXX, assume that their drum was marked in that fashion back in 1963, and that attached to the top of that drum was a single, red label, similar in color, and exactly in wording as plaintiffs' exhibit number `3', which I hand you, assuming the markings that I have indicated and that paper label on top of the drum, and nothing else by way of paper labels, writings or warnings of any kind, or letters or pamphlets, or instructions that came with that material that covered it in any way, or did that drum refer to any other material in any way, assuming those facts to be true, do you have an opinion, Mr. Ray, based upon reasonable scientific certainty, as to whether this label and plaintiffs' exhibit `3', and those markings that you read off that barrel when you took your sample from there, whether that was in conformity to and met the standards and the customs and the practice of the chemical industry at that time, with respect to the adequacy and sufficiency of warning of the dangers of the product and the instructions to its use to a consumer and a user, do you have an opinion as to whether that label met those standards?
"A. In my opinion, it's not sufficient. It didn't meet the standards of custom and practice at that time.
"Q. Why not?
"A. Well, let me explain it this way. I have purchased many solvents and chemicals from different areas of the country, and everyone that I saw had a red label similar to this, because this is a shipping label required by the Interstate Commerce Commission. Now this is for shipping, but in most cases, you will find an additional label that's for the user, that will give some instructions as to how it should be used, or how it should not be used, and this is where you will find the remarks extremely flammable, vapors explosive, use in a well-ventilated area, keep away from fire, no smoking, and a list."
We conclude that whether the red label or tag *455 attached to the 55-gallon drum contained an adequate warning for users or potential users of ER-59 was a fact question which the trial judge properly left to the jury for decision.
As a general rule, summary judgment is inappropriate in negligence actions. Gamet v Jenks, 38 Mich. App. 719 (1972). This is because conformance to or violation of a standard of behavior is peculiarly within the province of a jury. Only in rare instances will it be found that no "genuine issue of fact" exists. The reasonableness of a party's conduct under any given circumstances is almost always a question for the jury. Thompson v Essex Wire Co, 27 Mich. App. 516 (1970); Mackey v Island of Bob-Lo Co, 39 Mich. App. 64 (1972).
The workmen in this case decided to do the welding. This they may not have done if the red label or tag or other outside warning advised that the residue, fumes or vapors could ignite and explode hours following product use. The trial judge properly submitted the question of the sufficiency and adequacy of the warning to the jury. On motions for summary judgment, the trial judge's only function is to determine whether a material question of fact exists. Zamler v Smith, 375 Mich. 675 (1965); Petrie v GRD, Inc, 39 Mich. App. 619 (1972). In this case plaintiff and his co-workers decided to do the welding. It is conceivable that other workmen could make the same decision given the same warnings and circumstances. It is only where all reasonable men must agree on the question of negligence that the court can properly decide the question as one of law. Nagy v McEachern, 28 Mich. App. 439 (1970); Brown v Page, 39 Mich. App. 50 (1972). Further the claims of defendant that it did not know ER-59 was being used as a cleaner and that plaintiff *456 knew of the explosive nature of the product were contested and the proximate cause issue was for the jury. In the instant case, no error was committed in refusing to grant defendant's motions for summary judgment and directed verdict.
Parsonson v Construction Equipment Co, 386 Mich. 61 (1971), cited by defendant is inapplicable. The explosive characters of gasoline are, as the case held, common knowledge. Not so with paint thinner, therefore, there was a need for adequate warning.
Defendant claims error was committed when the trial court allowed the raising of the ad damnum clause on the morning of the trial from $275,000 to $675,000.
The late amendment did not result in surprise or prejudice. Defendant was aware of and admitted that plaintiff's injuries were very serious. The treatment of proposed amendments is discretionary with the court. LaBar v Cooper, 376 Mich. 401, 409 (1965). Amendments may be allowed any time when justice so requires. GCR 1963, 118.1; Grove v Story Oldsmobile, Inc, 31 Mich. App. 613, 616 (1971). Defendant did not ask for a continuance and it fails to demonstrate reversible prejudice or that justice was not served by allowing the amendment. We find no abuse of discretion.
An expert witness from Chicago, Illinois, whose name was submitted as a witness by the defendant was not allowed to testify. Defendant contends this was error. The record clearly reflects that the endorsement was only a few days before trial and was in violation of a pretrial order to timely produce the names of witnesses. Generally, the exclusion of a witness is discretionary with the trial court. Where there is noncompliance with a pretrial order resulting in the creation of a time *457 problem for opposing counsel, it cannot be said that the court acted unwisely or that discretion was abused. We find no such abuse on this record. Furthermore, since no separate record was requested or made, we are in no position to pass upon the admissibility of evidence which might have been offered. Bujalski v Metzler Motor Sales Co, 353 Mich. 493 (1958); Conlon v Dean, 14 Mich. App. 415, 424 (1968).
During the course of the trial, the court permitted the introduction of a warning label as an exhibit. The label was from a one-gallon container whereas all thinner purchased by Baker Perkins was shipped in 55-gallon drums which did not contain the same label. The label was, therefore, irrelevant and immaterial according to defendant.
The exact words on the label were testified to by defendant's witness. The trial judge had discretion in determining the materiality and relevancy of the evidence. Orquist v Montgomery Ward, 37 Mich. App. 36 (1971). No palpable abuse of discretion is demonstrated on this record since the jury had already been apprised of the contents of the label. The jurors were not misled prejudicially by the acceptance of the exhibit into evidence.
Defendant contends the trial court erred in striking certain testimony from the depositions of witnesses Homer Durham and Robert Loerke.
Witness Loerke, a painter, had his testimony stricken concerning his opinion that supervision, of which he was not a member, kept the product in a separate place "because possibly it might explode, I suppose" and had he been there he would have advised against the welding. Among other questions and answers, witness Durham's comparison between the subject product and gasoline and his opinion as to the adequacy of defendant's *458 shipping label were deleted. Defendant claims this testimony was relevant, material and should have been admitted in the trial record. Witness Loerke, as a painter, did not qualify as an expert concerning the chemical composition and properties of ER-59. Witness Durham's comparison of the paint thinner and gasoline was covered in other trial testimony and his answers indicated that he was not an expert in the field of product labeling.
The determination of whether one qualifies as an expert witness is a matter within the discretion of the trial court, and the Court of Appeals will not interfere except to correct an abuse. Coles v Galloway, 7 Mich. App. 93 (1967); Anderson v Lippes, 18 Mich. App. 281, 285 (1969). Because these witnesses did not qualify as experts as to the subject testimony, it was properly excluded.
Defendant contends that no one is held liable to a higher degree of care than the average person in the trade or business in which he is engaged. The following instruction was requested:
"I charge you that Rinshed-Mason had no greater duty to warn an industrial purchaser of 55-gallon drums of pain [sic] reducer than any other manufacturer in the flammable fluid industry."
The court gave the following charge:
"If you find that defendant Rinshed-Mason did not follow the custom of the trade in its manner of labeling such warning, then I instruct you that such failure to follow the custom of the trade is evidence of negligence."
Defendant claims the instruction given imposed a higher duty on the defendant than the law requires. We do not agree. The instruction given *459 informed the jury that they were to weigh the evidence concerning the fairness of the label as a warning when compared with the usual custom of the flammable fluids industry. The instruction was a clear statement of applicable law. The correct instruction having been given, it was not error to refuse to give a requested instruction on the same subject. Shirley v The Drackett Products Co, 26 Mich. App. 644, 654 (1970); Wright v Whitmire, 31 Mich. App. 692, 697 (1971).
The court also refused to give defendant's requested instruction number 4 which dealt with plaintiffs' burden of proof in their claims that the accident and injury was foreseeable and failure to warn under such circumstances was negligence, and defendant had no duty to warn at all since the product was standard and common and the user was totally familiar with its harmful and dangerous characteristics.
The court in determining that the proposed instruction was improper stated:
"Now, as to the part of the instruction or request number four, which had to do with the standard and common commodity, the court reviewed, carefully, the cases cited by defense counsel. All of these cases involved cement, a ready-mix cement. Two of them were breach of implied warranty cases, which do not apply in this particular case, two were negligence cases, which would be similar to this case, and in that case, the court declaring that cement was a product that had been in common use for over 50 years, and that the dangerous part of the product, the lime product, had been known, its properties had been known for centuries, and compared this a little to electricity, which they felt was such a common commodity that this instruction should be given. In fact, in all of these cases, either the court directed a verdict for the defendant at the end of the case, or reversed a in one case, there was a verdict for plaintiff, which was reversed. The court felt that this *460 did not apply in this case. There were no cases cited dealing with synthetic reducers or thinners, as such, and from the testimony of the experts produced here in open court, it would appear that there are many, many variations of complex formulas that go to make up these products, all of different degrees of danger, volatility, and as well as flammability, and the court feels that this is not a product of which would be, even though the name itself might be common, the properties and dangers of it are not common, but are very much a matter of expertise, and the court would not, under those conditions, follow and give the instruction requested by defendants in this case." (Emphasis supplied.)
The court's reasons for rejection are reasonably based upon the trial evidence. No error was committed. Defendant's proposed instruction is not the law in this case. The product as the court properly determined was not that well known and its dangerous characteristics required warning. For this reason, defendant's requested instruction is inapplicable and it was not error for the trial court to refuse to give it to the jury. Elias v Hess, 327 Mich. 323 (1950); Duncan v Strating, 357 Mich. 654, 661 (1959).
Affirmed. Costs to plaintiffs.
All concurred.
NOTES
[*] Former Supreme Court Justice, 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/2697881/ | [Cite as Van Orden v. Van Orden , 2011-Ohio-2246.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
HANNAH VAN ORDEN, :
:
Plaintiff-Appellee, : Case No. 10CA10
:
vs. : Released: May 9, 2011
:
DAVID RICHARD VAN ORDEN, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Richard M. Lewis, and Christen Finley, The Law Firm of Richard M. Lewis,
LLC, Jackson, Ohio, for Appellant.
William S. Cole, Jackson, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.:
{¶1} This is an appeal from a Jackson County Court of Common Pleas
judgment finding Appellant, David Van Orden, in contempt. On appeal,
Appellant contends that the trial court erred in finding Appellant in contempt
of the court’s order to hold Appellee, Hannah Van Order, harmless from the
marital debt, in ordering Appellant to pay Appellee’s attorney fees
concerning the prosecution of the contempt, and in ordering Appellant to
make arrangements to pay the judgments obtained by Fifth Third Bank and
USAA against Appellee.
Jackson App. No. 10CA10 2
{¶2} In light of our finding that no final, appealable order exists, we
hereby dismiss the current appeal.
FACTS
{¶3} The parties were married on October 16, 1998, and five children
were born as issue of the marriage. Appellee filed a complaint for divorce
on September 27, 2006. A final divorce hearing was held on April 16, 2007.
Based upon the agreed statement of facts contained in the record, Appellant
filed a Chapter 7 petition for bankruptcy on August 20, 2007. On August
24, 2007, a magistrate’s decision was issued in the divorce proceeding, and
on September 20, 2007, the trial court issued an order adopting the
magistrate’s decision and issuing a decree of divorce. The divorce decree
specified that “Defendant shall pay all of the marital debt and hold the
Plaintiff harmless therefrom.”
{¶4} Subsequently, Appellee was sued by Fifth Third Bank and
USAA. Although Appellant obtained a discharge in bankruptcy on July 21,
2008, creditors Fifth Third Bank and USAA obtained judgments against
Appellee. On March 13, 2009, Appellee filed a contempt motion against
Appellant based upon his failure to hold her harmless on the marital debts.1
The trial court held a hearing on the motion on June 29, 2009, on December
1
The motion also raised other issues not pertinent to this appeal.
Jackson App. No. 10CA10 3
16, 2009, a magistrate’s decision finding Appellant in contempt of the hold
harmless agreement was issued. Although Appellant objected to the
magistrate’s decision, the trial court issued its entry adopting the
magistrate’s decision with respect to the hold harmless agreement on June 1,
2010.
{¶5} With respect to its finding that Appellant was in contempt of the
hold harmless agreement, the trial court found as follows:
“3. Defendant is in contempt of the Court’s Order to hold Plaintiff
harmless from the marital debt owed to Fifth Third Bank and USAA.
Defendant shall pay Plaintiff’s attorney fees for this motion within 90
days.
***
6. Defendant shall make arrangements within 90 days with Fifth Third
Bank and USAA to pay the judgments they obtained against
Plaintiff.”
The trial court did not provide Appellant an opportunity to purge his
contempt. Nor did the trial court impose any sort of fine or sanction, or
determine the amount of attorney fees owed to Appellee.
{¶6} It is from this order that Appellant brings his appeal, setting forth
a single assignment of error for our review.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN FINDING APPELLANT IN
CONTEMPT OF THE COURT’S ORDER TO HOLD APPELLEE
HARMLESS FROM THE MARITAL DEBT AND IN ORDERING
Jackson App. No. 10CA10 4
APPELLANT TO PAY APPELLEE’S ATTORNEY FEES
CONCERNING THE PROSECUTION OF THE CONTEMPT AND
TO MAKE ARRANGEMENTS TO PAY THE JUDGMENTS
OBTAINED BY FIFTH THIRD BANK AND USAA AGAINST
APPELLEE.”
LEGAL ANALYSIS
{¶7} “Civil contempt sanctions are designed to coerce compliance
with a court order or to compensate a complainant for loss sustained by the
contemnor's disobedience.” Slone v. Slone, Pike App. No. 01CA665, 2002-
Ohio-687; citing, Boggs v. Boggs (1997), 118 Ohio App. 3d 293, 299, 692
N.E.2d 674; citing Brown v. Executive 200, Inc. (1980), 64 Ohio St. 2d 250,
253, 416 N.E.2d 610. “One found in civil contempt must be provided with
the opportunity to purge himself of contempt.” Slone, supra; citing Carroll v.
Detty (1996), 113 Ohio App. 3d 708, 712, 681 N.E.2d 1383; In re Purola
(1991), 73 Ohio App. 3d 306, 312, 596 N.E.2d 1140; See, also, Amsbary v.
Amsbary (March 25, 1997), Gallia App. No. 96CA11, 1997 WL 139440.
Furthermore, an appellate court reviews a trial court's contempt finding
under an abuse of discretion standard. Slone, supra; citing, Denovchek v. Bd.
of Trumbull Cty. Commrs. (1988), 36 Ohio St. 3d 14, 16, 520 N.E.2d 1362.
{¶8} Initially, we must address a threshold jurisdictional issue. Ohio
appellate courts have jurisdiction to review the final orders or judgments of
inferior courts within their district. Section 3(B)(2), Article IV of the Ohio
Jackson App. No. 10CA10 5
Constitution. Also see R.C. 2501.02. If a judgment is not final and
appealable, then an appellate court has no jurisdiction to review the matter
and it must be dismissed. Prod. Credit Assn. v. Hedges (1993), 87 Ohio
App.3d 207, 210, 616 N.E.2d 591 at fn. 2; Koons v. Pemberton (1992), 84
Ohio App. 3d 499, 501, 617 N.E.2d 701. As set forth above, one found in
civil contempt must be provided with an opportunity to purge. Here, the
trial court found Appellant in contempt but gave him no ability to purge his
contempt.
{¶9} Further, contempt generally consists of both a finding of
contempt and the imposition of a penalty or a sanction. As provided in R.C.
2705.05:
“(A) In all contempt proceedings, * * *. If the accused is found guilty, the
court may impose any of the following penalties:
(1) For a first offense, a fine of not more than two hundred fifty dollars, a
definite term of imprisonment of not more than thirty days in jail, or
both;”
This court has held that “[u]ntil a court issues a penalty or sanction, no final
appealable order exists.” Slone, supra; citing See In re Smith (Jan. 31, 1991),
Jackson App. No. 630, 1991 WL 14098 (“in the absence of one of these
sanctions [either fine or imprisonment], there is no appealable order * * *”).;
See, also, Thompson v. Pendleton, Scioto App. No. 00CA2737, 2001-Ohio-
2531.
Jackson App. No. 10CA10 6
{¶10} We further note that the trial court ordered Appellant to pay
Appellee’s attorney fees related to the contempt motion. In Lawson v.
Lawson, Lawrence App. No. 01CA31, 2002-Ohio-409, we reasoned that “[a]
trial court possesses the authority to include reasonable attorney fees as part
of costs taxable to a defendant found guilty of civil contempt.” In Lawson,
at the time the contempt motion was appealed, the attorney fee award
remained pending for later determination and had yet to be resolved. Based
upon those facts, we held that there was no appealable order. In the case sub
judice, based upon our review of the record, it appears that while the trial
court ordered Appellant to pay Appellee’s attorney fees related to the
contempt motion, we can find no evidence in the record suggesting that the
amount was ever determined.
{¶11} Thus, based upon our review of the record, it appears that the
trial court did not provide Appellant an opportunity to purge his contempt,
did not impose any penalty or sanction, and did not determine that attorney
fee amount Appellant was ordered to pay. Thus, we must dismiss the instant
appeal for the lack of a final appealable order.
{¶12} Accordingly, based upon the foregoing reasons we hereby
dismiss the instant appeal.
APPEAL DISMISSED.
Jackson App. No. 10CA10 7
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED and that the Appellee
recover of Appellant 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 Jackson County Common Pleas Court to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, P.J. and Kline, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, 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/97802/ | 227 U.S. 477 (1913)
BRADLEY
v.
CITY OF RICHMOND.
No. 38.
Supreme Court of United States.
Submitted November 6, 1912.
Decided February 24, 1913.
ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA.
*478 Mr. I. Henry Harris for plaintiff in error.
Mr. H.R. Pollard for defendant in error.
*480 MR. JUSTICE LURTON delivered the opinion of the court.
Appellant was convicted in the Hustings Court of Richmond for the violation of an ordinance forbidding the carrying on of the business of a "private banker" without a license. This judgment was affirmed by the Supreme Court of the State.
Numerous objections to the ordinance and to the tax, arising under the law and constitution of the State, were decided adversely to the plaintiff in error. With these we have no concern. The case comes here upon the claim made in the state court, and denied, that the ordinance denies both the equal protection of the law and due process as guaranteed by the Fourteenth Amendment.
The ordinance in question requires all persons desiring to pursue certain businesses and occupations to pay a special license tax for the privilege of prosecuting such business. Many pursuits are named, among them real estate agents, commission merchants, brokers, auctioneers, private bankers, etc. The persons required to pay such special license tax are to be divided by the finance committee of the city council into thirteen classes. The amount required to be paid by each class is as follows: First class, $800; second class, $600; third class, $400; fourth class, $300; fifth class, $250; and so on in decreasing amounts to the thirteenth class which is required to pay only $10. This classification by the finance committee is to be made with the advice and assistance of "the commissioner of revenue, the city tax collector, or any city officer."
The tax imposed is not merely an exercise of the police power regulating a business, but is a tax assessed as a condition upon which the license issues. Though it fulfills the double function of both regulating the business and producing revenue, it was fully authorized by the law of the State as adjudged by the very judgment under review: *481 Gundling v. Chicago, 177 U.S. 183, 189. Since the purpose of the statute is double, it is plain that to exact the same amount from each person or firm subject to the tax might result in inequality of burden under like circumstances and conditions. Therefore it was that the ordinance provided for a division into classes, those in each class paying the same tax.
The objection to the ordinance does not grow out of any contention that there may not exist just and reasonable distinctions justifying a greater tax upon some of these persons or firms engaged in doing what is called a "private banking" business than upon others engaged in the same general business; but arises from the fact that the law provides no rule by which some are to be placed in one class and some in another. An ordinance which commits to a board, committee or single official the power to make an arbitrary classification for purposes of taxation, would meet neither the requirement of due process, nor that of the equal protection of the law.
But this ordinance does not authorize any arbitrary classification, nor could the State or the council legally confer or exercise arbitrary power in classifying for the purpose of either regulating or licensing or taxing. The guarantee of the Fourteenth Amendment would forbid.
But whether the power of classifying be exercised by the State directly or by a city council authorized to require the payment of such a tax as a condition to the issuance of a license, it is at last the exercise of legislative discretion and is subject, in either case, to the guarantee referred to.
But when the matter concerns the determination of the business or occupation which may be required to take out a license and pay a tax as a condition of obtaining such a license, the power of the State is subject to no limitations, save those found in the guarantee of due process and the equal protection of the law. In the present instance, the State has delegated this power of selecting the businesses *482 and occupations carried on within the city of Richmond, and of dividing them into classes and determining the amount of the tax to be paid by the members of each class. The state Supreme Court has decided that there can be no objection under the constitution of the State to such delegation. Neither do we see any reason under the Fourteenth Amendment why the State may not delegate to either the council of the city or to a board appointed for that purpose the power to divide such occupations or privileges into classes or sub-classes, and prescribe the tax to be paid by the members of each such class. Gundling v. Chicago, 177 U.S. 183; Fischer v. St. Louis, 194 U.S. 361, 372; Lieberman v. Van De Carr, 199 U.S. 552, 560. In the case last cited, this court said:
"That this court will not interfere because the States have seen fit to give administrative discretion to local boards to grant or withhold licenses or permits to carry on trades or occupations, or perform acts which are properly the subject of regulation in the exercise of the reserved power of the States to protect the health and safety of its people there can be no doubt."
That this ordinance does not contemplate any arbitrary discrimination between the persons or firms subject to the license tax is evident from the direction that they shall be divided into thirteen classes, the members of each class to pay the particular amount named as a condition to the issuance of a license. It is also evident from the provisions in respect of notice, right to be heard and a right to a review by the council itself. These are obvious guards against unjust and capricious inequalities.
The authority to classify is given to the finance committee of the city council. That was a committee of eleven members of a city council composed of forty members. The ordinance required this committee to make a tentative classification with the advice and assistance of certain city officials supposed to be acquainted with the general *483 subject. When made the classification is required to be filed in the office of the city auditor for public inspection. The auditor is then required to give notice through two city newspapers that the tentative assessment is so filed in his office for examination and that all persons affected may be heard by the finance committee at times and places specified. From the final classification made by the committee the ordinance permits any aggrieved person to appeal to the full city council and there obtain a review.
But it is said that after all there is no security that the city council will not in the end approve of a scheme of classification operating most unjustly. The same objection might be made with reference to any tribunal required to determine such a matter. The presumptions which must be indulged run counter to the suggestion made.
If the right to appear and be heard and to obtain a review should prove illusory, there would, under general principles of jurisprudence, remain the right to judicial review, if the result should violate either a right secured under the law of the State or that of the United States. This is the right which plaintiff in error has in this very case asserted. Kentucky Railroad Tax Cases, 115 U.S. 321, 335, 336.
There was obviously no want of due process of law in the imposition of the tax.
Finally, the plaintiff in error says that the actual operation of the ordinance has brought about an unjust and illegal discrimination in that he has been classified in such manner as to subject him and his business to a higher tax, as a condition of issuing to him a license, than that required of many other private bankers. This was a defense made in the state court. But that court, after saying that it was competent for the council to assign private bankers to different classes, and that the plaintiff in error *484 had been required to pay no greater license tax than all others in the same class, said:
"In order to render the classification illegal, the party assailing it must show that the business discriminated against is precisely the same as that included in the class which is alleged to be favored. Norfolk &c. v. Norfolk, 105 Virginia, 139. That has not been shown in the present case; on the contrary, it appears that the business of the plaintiff in error is not precisely the same with that of other private bankers who are put in a different class and assessed with a less license tax."
That some private bankers were put into classes which subjected them to less taxation than the class into which the plaintiff in error was placed is the only allegation which would tend to show discrimination. But there was evidence tending to show that the business done by the plaintiff in error and ten other persons or firms was that of lending money at high rates upon salaries and household furniture, while the kind of business done by others in the same general business was the lending of money upon commercial securities. Obviously the burden was upon the plaintiff in error to show an illegal and capricious classification. The state court said that he had failed to show that these private bankers favored in the classification were doing the same business.
In Home Telephone Company v. Los Angeles, 211 U.S. 265, 280, 281, the complaint was that the city, under an authority to regulate the charges for telephone service, had given a more favorable rate to a rival company and had thereby illegally discriminated. After saying that the allegation of such difference was "too vague to pass upon," this court said:
"Whether the two companies operated in the same territory, or afforded equal facilities for communication, or rendered the same services does not appear. For aught that appears, the other company may have brought its *485 patrons into communication with a very much larger number of persons, dwelling in a much more widely extended territory, and rendered very much more valuable services. In other words, a just ground for classification may have existed. Every presumption should be indulged in favor of the constitutionality of the legislation."
See also Sweet v. Rechel, 159 U.S. 380, 392.
But it is not necessary to rest our judgment upon the question as to whether the plaintiff in error was rightly or erroneously classified, because we are of opinion that he is not in a situation to complain. There was obviously no want of due process of law in the scheme of the ordinance. The occupations to be subjected to the tax were defined. There was a maximum and minimum limitation as to the amount of the tax, dependent upon the classification. The classification was to be made after notice and a hearing and an appeal from the final action of the committee was permissible. The plaintiff in error might have appeared and shown the character and extent of the business he was doing and compared it with that of others more favored in classification. He did nothing of the kind. He seems to have stood by and let the matter of classification go by without contest. It is no answer to say that it would have been unavailing. The presumption is otherwise. The authority to classify was committed primarily to the finance committee, subject to review by the council. It was expected to use its judgment and knowledge. If it erred there was ample opportunity to show that by an appeal to the council. Of the right to appear and to be heard plaintiff in error elected not to avail himself. Under the circumstances he is not warranted in resorting to the extraordinary jurisdiction of this court to arrest an administrative error susceptible of correction by an appeal to the council. Gundling v. Chicago, 177 U.S. 183, 186; Chicago, B. & Q. Rd. v. Babcock, 204 U.S. 585, 598.
*486 It is true that in the opinion of the Hustings Court it is inadvertently said that of the opportunities afforded by the act for curing any wrong he had "availed himself." It is likely that the word "not" has been accidentally omitted. This we say because the brief of the defendant in error says that he did not appeal to the city council and in the brief of the plaintiff in error this is admitted. In addition, we add that there is no evidence that he in any way appeared or pointed out any injustice done him.
Judgment affirmed.
MR. JUSTICE LAMAR concurs in the result. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1618738/ | 303 S.W.3d 211 (2010)
Daryle GILYARD, Appellant,
v.
STATE of Missouri, Respondent.
No. WD 70467.
Missouri Court of Appeals, Western District.
February 23, 2010.
S. Kate Webber, Kansas City, MO, for Appellant.
Chris Koster, John W. Grantham, Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
Before JAMES EDWARD WELSH, P.J., MARK D. PFEIFFER, and KAREN KING MITCHELL, JJ.
JAMES EDWARD WELSH, Judge.
Daryle Gilyard appeals the circuit court's judgment denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Gilyard pleaded guilty to one count of first degree assault and one count of armed criminal action for which he was sentenced to eighteen years imprisonment on each count, with the sentences to run concurrently. In this appeal, Gilyard alleges that his plea was involuntary because his plea counsel coerced him into pleading. In particular, Gilyard asserts that his plea counsel: (1) told him that he would definitely be sentenced to twenty-five years imprisonment if he went to trial, (2) failed to explain the elements of assault in the first degree, and (3) failed to "ensure that he would not necessarily be convicted at trial." We affirm.
Daryle Gilyard was charged with one count of first-degree assault with serious physical injury and one count of armed criminal action. Gilyard entered a plea of guilty on September 14, 2007, in exchange *212 for an agreement from the prosecutor to recommend not more than a twenty-year term of imprisonment.
At his guilty plea, Gilyard testified that it was his desire to enter into a plea of guilty. He acknowledged that he had completed eleventh grade, and could read, write, and understand English. Gilyard also acknowledged that he understood and was aware of everything that had happened in court so far.
Gilyard stated that he understood he had a right to a jury trial; that he understood that a jury may or may not find him guilty; and that, if he were found guilty, he could be sentenced to more or less time than he would receive after a guilty plea. By pleading guilty, Gilyard stated he knew he was giving up his right to a jury trial. He also said that he understood the range of punishment for each offense. Further, Gilyard said that he understood that if the court ordered the sentences to be served consecutively then he could be ordered to serve up to two consecutive life sentences. The court explained to Gilyard that it would consider all of the evidence and the arguments at sentencing but noted that it did not anticipate, based on what the court knew about the case up until that point, that it would sentence Gilyard to the statutory minimum terms.
Gilyard then testified as to his version of what happened during the incident. Gilyard said that he was riding in a vehicle, stuck a gun out the window, and shot at the victim. Gilyard stated that he later learned that his shot actually hit the victim. The victim lost his right eye as a result. Gilyard admitted that it was his intent to assault the victim and that he used a shotgun in the assault. Gilyard then entered guilty pleas to both charges.
The circuit court then asked the prosecutor about some of the other evidence in the case. The prosecutor informed the court that the shotgun had been recovered, that testing had confirmed that the shotgun was operational, and that police found a shell casing that had been shot from the shotgun in the vehicle from which Gilyard fired the shot. The prosecutor also stated that Gilyard's co-defendants had made statements to the police and were prepared to testify that the group had decided that they were going to "get" the victim and that there was going to be a shooting. Further, the co-defendants said that, because the shotgun had only one remaining shell, Gilyard was told that he "better not miss." Gilyard affirmed that he expected the State to produce this evidence at trial and again pleaded guilty to both offenses.
Gilyard then answered the circuit court's questions about his attorneys. Gilyard said that his attorneys had done everything asked of them and that they had not done anything against his wishes. He said that his attorneys explained his constitutional rights to him, told him that he did not have to plead guilty, and told him that they could go to trial if Gilyard wished. Gilyard told the circuit court that he had no complaint about either of his attorneys. He said that his attorney had discussed with him the possible consequences of going to trial and said that he considered those possibilities when he decided to plead guilty. He also said that no one told him how to answer the court's questions; that no one threatened him to make him plead guilty; that no one promised him anything outside the terms, which were stated in open court; and that no one said anything to him make him feel as if he had to plead guilty.
Gilyard said he was pleading guilty because he had committed the offense. Gilyard further said that he wanted the court to accept his pleas of guilty and that all his statements were truthful. The court then found that Gilyard had voluntarily, freely, *213 and intelligently entered into the pleas and accepted Gilyard's pleas of guilty to assault in the first degree and armed criminal action.
At some point prior to sentencing, Gilyard filed a motion to withdraw his plea. At the sentencing hearing, the circuit court took up the motion, and Gilyard testified that his attorney had not done everything that possibly could have been done in his case and complained that the case had proceeded toward trial too quickly, as the case was not yet ten months old. The circuit court found that Gilyard failed to present adequate legal grounds to allow him to withdraw his plea. The circuit court thereafter sentenced Gilyard to eighteen years imprisonment on each count with the sentences to run concurrently.
The circuit court then proceeded to examine Gilyard about the services he received from his attorneys. Gilyard stated that his attorneys did not do everything he asked them to do. Gilyard complained, "[W]e didn't havewenothing in my defense." When asked to elaborate, Gilyard tried to explain that he did not intend to shoot the victim and that he meant only to intimidate the victim. He also complained again that the case had proceeded toward trial too quickly. Gilyard then affirmed to the circuit court that his attorneys showed him the discovery; that they showed him and explained the charges against him; that they told him what they anticipated the evidence to be at trial; that they asked him his version of the facts; that they asked him if he had any witnesses but that he had none except the co-defendants; that his attorneys told him about his trial rights; and that his attorney told him that he would take the case to trial if Gilyard wanted a trial. Gilyard then stated that he had no other complaints about his attorneys.
On January 22, 2008, Gilyard filed a pro se motion for post-conviction relief under Rule 24.035 claiming that he was coerced to plead guilty due to the ineffective assistance of his counsel. On April 28, 2008, post-conviction counsel filed an amended motion in which Gilyard claimed that his plea was induced by plea counsel's advice that he could not win at trial and that he must plead guilty.
On October 2, 2008, the circuit court held an evidentiary hearing. Gilyard testified at the evidentiary hearing that plea counsel told him that if he went to trial that he would get at least twenty-five years in prison but that, if he pleaded guilty, he would get no more than twenty years. Gilyard also stated that his attorney never explained to him that it was his decision whether to plead guilty or to go to trial. When Gilyard was asked if he thought it was his choice, he responded: "Well, I thought I was justI was just taking his advice. I figured he was my lawyer, so I just was taking his advice." Gilyard said that his lawyer never told him that there was a chance that he might be found not guilty. Gilyard said that his lawyer did not speak to him about a trial but always jumped right to the issue of sentencing. Gilyard denied that his attorney explained the elements of first-degree assault or the concept of mental state to him.
Gilyard claimed that, when he told the court that he intended to assault the victim, he meant that he intended to intimidate or scare the victim. Gilyard said that, at the time of the plea, he thought that his intent to intimidate the victim would constitute an assault and that his attorney did not explain the meaning of "assault" to him. Gilyard said that his attorney did not explain the difference to him between intending to cause someone *214 injury and just intending to cause them fear.
Gilyard stated that he told plea counsel his version of what happened but that plea counsel told him that he had to tell the judge that he knowingly committed the crime and knew what he was doing when he did it or the judge would not allow his plea to go through. Gilyard testified that it was not his voluntary choice to plead guilty but that he wanted to go to trial. On cross-examination, however, Gilyard admitted that plea counsel told him that he was willing to take the case to trial. Gilyard did not call his plea counsel as a witness at the evidentiary hearing.
On November 12, 2008, the circuit court denied Gilyard's motion for post-conviction relief. Gilyard appeals.
Our review of the circuit court's ruling on a Rule 24.035 motion is limited to determining whether its findings and conclusions are clearly erroneous. Rule 24.035(k). Findings and conclusions are clearly erroneous only if we have a definite and firm impression that a mistake was made. Dobbins v. State, 187 S.W.3d 865, 866 (Mo. banc 2006).
On appeal, Gilyard contends that his plea was involuntary because his plea counsel coerced him into pleading. In particular, Gilyard alleges that his plea counsel: (1) told him that he would definitely be sentenced to twenty-five years imprisonment if we went to trial, (2) failed to explain the elements of assault in the first degree, and (3) failed to "ensure that he would not necessarily be convicted at trial."
The problem with Gilyard's allegations is that he did not assert any of these claims in his post-conviction motion. In his amended motion for post-conviction relief, Gilyard complained that he was induced to plead guilty by plea counsel's improper advice that he could not win at trial and must plead guilty and that he feared taking his case to trial because his attorney failed to properly prepare for trial. Nowhere in his amended motion does Gilyard assert that his plea counsel told him that he would definitely be sentenced to twenty-five years imprisonment if he went to trial or that his plea counsel failed to explain the elements of assault in the first degree. Moreover, we cannot find in his motions Gilyard's allegation that his plea counsel failed to "ensure that he would not necessarily be convicted at trial." None of these allegations appear in Gilyard's pro se motion or amended motion for post-conviction relief.
Rule 24.035(d) provides: "The motion to vacate shall include every claim known to the movant for vacating, setting aside, or correcting the judgment or sentence.. . . [T]he movant waives any claim for relief known to the movant that is not listed in the motion." Thus, when claims on appeal are not asserted in an original or amended post-conviction motion, they are waived. State v. Shafer, 969 S.W.2d 719, 740 (Mo. banc), cert. denied, 525 U.S. 969, 119 S. Ct. 419, 142 L. Ed. 2d 340 (1998). Indeed, plain error review is not even available. Edwards v. State, 954 S.W.2d 403, 408 (Mo.App.1997). As Judge Breckenridge stated in Edwards, when a defendant fails to raise a claim in his Rule 24.035 motion, he waives it:
Under Rule 24.035(d), the post-conviction motion must include all claims and those not raised in the motion are waived. Johnson v. State, 921 S.W.2d 48, 50 (Mo.App.1996). . . . Plain error review is also unavailable. "Because the appellate court lacks jurisdiction to consider these claims, they are not eligible for plain error review under Rule *215 84.13(c)." State v. Dees, 916 S.W.2d 287, 302 (Mo.App.1995) (citation omitted).
Id.
Because Gilyard did not raise these issues in his Rule 24.035 motion, he cannot raise these issues for the first time on appeal. Amrine v. State, 785 S.W.2d 531, 535 (Mo. banc), cert. denied, 498 U.S. 881, 111 S. Ct. 227, 112 L. Ed. 2d 181 (1990); Collins v. State, 228 S.W.3d 40, 42 (Mo. App.2007); Day v. State, 208 S.W.3d 294, 295 (Mo.App.2006); Dean v. State, 950 S.W.2d 873, 877 (Mo.App.1997).
The circuit court did not clearly err in denying Gilyard's Rule 24.035 motion for post-conviction relief. We, therefore, affirm the circuit court's judgment.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3044215/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3567
___________
Malik Abdul Shabazz, also known *
as Vonnie Lynn Moore, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Arkansas Department of Correction; * [UNPUBLISHED]
Charles Freyder, Chaplain, Varner *
Unit, ADC; Don Yancy, Administrator *
of Religious Services, Arkansas *
Department of Correction; Agin *
Muhammad, Sr., Islamic Coordinator, *
Arkansas Department of Correction; *
Ray Hobbs, Deputy Director, Arkansas *
Department of Correction, *
*
Appellees. *
___________
Submitted: March 6, 2008
Filed: March 10, 2008
___________
Before BYE, SMITH, and BENTON, Circuit Judges.
___________
PER CURIAM.
Arkansas inmate Malik Shabazz appeals the district court’s1 final judgment
imposing a permanent injunction against defendants on his claim under the Religious
Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1. Shabazz
challenges the district court’s rulings on several motions, and he argues that the court
should have held a hearing to explore other options for injunctive relief against
defendants. Having carefully reviewed the parties’ arguments and the record on
appeal, we agree with the district court’s rulings for the reasons stated by the court,
we find no merit to Shabazz’s argument that he was entitled to an additional hearing,
and we affirm. See 8th Cir. R. 47B.
______________________________
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable J.
Thomas Ray, United States Magistrate Judge for the Eastern District of Arkansas.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1617984/ | 303 S.W.3d 177 (2010)
Susan M. POTTS, Respondent,
v.
Raymond A. POTTS, II, Appellant.
Nos. WD 70196, WD 70455.
Missouri Court of Appeals, Western District.
February 23, 2010.
*181 Michelle E. Jakobe, Lee's Summit, MO, for appellant.
*182 Stanley Brian Cox, Sedalia, MO, for respondent.
Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
PER CURIAM:
Raymond Potts appeals the judgment of the Pettis County Circuit Court pertaining to the dissolution of his marriage to Susan Potts. He argues on appeal that the trial court erred with respect to awarding custody of the parties' children, finding the parties' prenuptial agreement to be unconscionable, classifying and dividing property, awarding maintenance, awarding child support, and ordering Raymond to pay Susan's attorneys' fees on appeal. The judgment is affirmed.
Facts
Raymond and Susan Potts were married on September 21, 1985. They separated on July 16, 2006, with Susan subsequently filing a petition for dissolution of marriage. They have four children. The oldest child is emancipated.
Raymond has been engaged in business as a roofing sheet metal contractor since 1979. Raymond's business is incorporated as Potts Contracting Group, Inc. Raymond owns all the shares in his sole name. The record shows that Raymond has a track record of disregarding corporate formalities in transferring funds back and forth between his corporation and himself, and accordingly owes taxes to the government. At the time of the marriage, Susan was 30 years old and worked at a bank as a secretary for a loan officer. Susan had previously worked as a floral designer. At the time of the dissolution trial, Susan worked 30 hours per week for $7.00 per hour coordinating delivery meal service to the elderly at a senior center.
The parties signed a prenuptial agreement the day before their marriage. The prenuptial agreement contained a full disclosure of the parties' assets and debts at the time of the marriage. The parties disagreed about the details surrounding the execution of the agreement.
Raymond testified to the following particulars concerning the prenuptial agreement. He had the agreement drawn up by his attorney several months prior to the marriage. He gave the prenuptial agreement to Susan for her review about a month prior to the wedding. Susan requested that Raymond change the provisions of the prenuptial agreement and suggested a formula so that she would get more money for each year that the parties remained married. Raymond's secretary notarized the prenuptial agreement. He remembers it being signed in his office prior to the end of business on the Friday before the wedding.
Raymond's business attorney also testified. He said that he prepared the prenuptial agreement at Raymond's request. He said he would have talked generally with Raymond, as he did with all his business clients, about the need to prepare a prenuptial agreement not less than 60 days prior to the wedding. Raymond's attorney recalled meeting with Raymond on July 10, 1985, and located his datebook reflecting that appointment. He recalled Raymond contacting him about a change that Susan wanted based on a formula that would provide more money for each year they were married. This was a formula that the attorney did not regularly use. Raymond's attorney testified that, though he made changes in the prenuptial agreement, he did not make any changes to the agreement a day or two prior to the wedding. He recalled that Raymond spoke to him about changes Susan wanted made to the agreement prior to wedding invitations *183 being sent out. He recalled it because Raymond mentioned that he was not on the wedding invitation list. He did not testify that he was present when the agreement was signed, and he did not purport to know the date the agreement was signed.
Susan testified that she saw the prenuptial agreement for the first time on the Wednesday before the Saturday wedding. She said that although she did not read it completely, there was some language about receiving a certain amount of money in case of dissolution of marriage. Susan objected to some of what she read. Raymond agreed to have the agreement redone. Susan testified that she had never talked to Raymond's attorney and that she had not been in his office. She said that she received the revised agreement at 7:00 p.m. on the Friday night before the wedding, just as they were leaving for the rehearsal dinner. Susan said she read a little of the revised agreement. Susan testified that she did not sign the agreement in front of a notary public. She said that she had no legal training and, until recently, no one with legal training had explained to her the meaning of the agreement.
Both Raymond and Susan sought custody of the children. Raymond was romantically involved with another woman (Teresa) during his separation from Susan.
Raymond and Susan's children testified at the trial. Their 10-year-old son testified that he had stayed overnight with Raymond only twice in the previous six months. The son said this was less frequent than it had been because he did not like the fact that Teresa had started sleeping in Raymond's bed. Their 16-year-old son testified that he had never stayed overnight at Raymond's house because he did not "like it" at Raymond's house. He said that he did not like the "sleeping arrangements" at Raymond's house, and that Teresa and Raymond shared a bed. Their 18-year-old son testified that he had never spent the night at Raymond's house because he was not comfortable there. Their 21-year-old son was estranged from Raymond. He testified that he and Raymond do not talk.
The parties also disagreed over Raymond's financial position. Raymond gave the following testimony. Raymond's business, Potts Contracting Group, Inc., has suffered financially since approximately 2003. The trouble began when there were two instances of material suppliers providing defective material to the business for use in large projects. The defects were not discovered until after installation, causing the owner to refuse payment. After the petition for dissolution of marriage was filed, Susan took the prenuptial agreement out of Raymond's office. She told Raymond that she destroyed it. In reality, Susan hid the prenuptial agreement in a safe-deposit box and then gave it to her divorce attorney. Raymond obtained the prenuptial agreement during a deposition and submitted it to the trial court. Raymond needed the prenuptial agreement in order to obtain the commercial bonds that would enable his business to bid on large jobs. Without the prenuptial agreement, Raymond was unable to secure the needed bonds, and the business declined further. Raymond says his business corporation is deeply in debt and has not made a profit for several years. Raymond did not provide documentation supporting these assertions. Raymond offered some purported expert testimony by way of an accountant, but the court found that a lack of foundation was shown for the accountant's opinion. During the separation and pendency of the divorce, Raymond says he borrowed approximately $9,000 per month from the business to pay *184 to Susan, and then $900 per week to pay temporary support.
The U.S. Individual Tax Return filed by the parties in 2005 included $98,500 in wages and $66,626 in rental real estate income plus additional sums for capital gains. Their 2006 U.S. Individual Tax Return included wages of $52,000 and $70,055 in rental real estate income.
The trial court determined that the asset known as Potts Contracting Group was nonmarital property. According to the prenuptial agreement, this asset was worth $627,373.57 at the time of the marriage. The trial court found that Raymond had received annually an average of $80,000 in salary, $44,000 in rent income, and $100,000 in other company withdrawals (presumably designed as tax-deferred withdrawals). The trial court found that Raymond had received roughly $12,000 per month in income. The court found no credible, documented evidence from which to conclude that his income pattern would not continue in the long term.
The trial court's judgment awarded Raymond and Susan joint legal custody of their unemancipated children; awarded Susan sole physical custody of their children and Raymond visitation; held the prenuptial agreement to be invalid; determined that all property was marital except for Raymond's ownership of the business and an outboard motor which was ruled to be Raymond's nonmarital property. The court determined that the profit from the real estate that was sold was a marital asset, and awarded it to Raymond along with the business. The court awarded Susan $237,931 in marital assets, but the court also granted Raymond an equalizing money judgment against Susan in the amount of $158,436, payable at the rate of $500 per month. Raymond was assigned responsibility for $107,000 in debts. Child support was ordered at $1,180 per month. The court ordered Raymond to pay Susan $2,500 per month as maintenance. The court awarded Susan $22,000 in attorneys' fees, while stating that the attorneys' fees were also a "division of property."
Raymond filed his notice of appeal. Susan subsequently filed a motion for attorneys' fees and costs for appeal and requested that Raymond pay her attorneys' fees and costs on appeal. After hearing arguments on the motion, the trial court ordered Raymond to pay $5,000 for Susan's attorneys' fees and costs on appeal. Raymond's appeal of that ruling was consolidated with his other points.
Standard of Review
"In a court-tried case, the decree of the trial court must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Kester v. Kester, 108 S.W.3d 213, 218 (Mo.App.2003). "[W]e review the evidence and inferences in the light most favorable to the trial court's decision and disregard all contrary evidence and inferences." Id. "Judging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witnesses." Id. "We presume that the trial court took into account all evidence and believed such testimony and evidence that is consistent with its judgment." Id. "The party challenging the trial court's judgment in a dissolution of marriage has the burden of demonstrating error." Id.
Child Custody
Raymond claims that the trial court erred in awarding Susan sole physical custody of their minor children. He is not seeking a change in the amount of time awarded to each parent in the parenting *185 plan. Instead, he suggests that the trial court erred in designating Susan as having "sole physical custody" of the minor children rather than determining that both parties share joint physical custody, with Susan's address being designated for educational and mailing purposes. In essence, he complains about the label given to the custody arrangement.
During the school year, Raymond has the minor children every other weekend from Friday at 5:00 p.m. until Sunday at 7:00 p.m. and every Tuesday overnight. During the summer, Susan has the children every other weekend, every Wednesday overnight, and for two ten-day periods of vacation. The parties alternate holidays.
"Section 452.375.1(1) defines child `custody' under Missouri law as `joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof.'" Malawey v. Malawey, 137 S.W.3d 518, 524 (Mo.App. 2004). "The designation of physical custody as joint physical custody, rather than sole or primary physical custody with visitation rights for the other parent, is significant in that it determines the standard for future modification of the physical custody arrangement." Id. "A visitation award can be modified whenever modification would serve the children's best interests." Id. (citing section 452.400.2). "Modification of a custody decree, however, requires the court to find that a change has occurred in the circumstances of the child or the custodian that necessitates modification to serve the children's best interests." Id. (citing section 452.410). "Further, designation as a joint physical custodian can have intrinsic value for a parent who believes a stigma attaches when the other parent is named the primary or sole custodian." Id.
"Section 452.375.1(3) defines `joint physical custody' as `an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents.'" Id. "Joint physical custody does not require the children spend equal amounts of time with each parent." Id. (citing section 452.375.1(3)). "The statute does not define `sole physical custody.'" Id. "When the court orders significant periods where the child is in the care of each parent, the award is actually one of joint physical custody, regardless of how the court characterizes it." Id. "The key consideration in carrying out Missouri's public policy is the amount of time the children spend with each parent, not what the arrangement is called." Id. "We look to the amount of time for which each parent has the care and supervision of the children to determine the proper designation of the physical custody arrangement as `joint' or `sole.'" Id.
Susan notes that the temporary order provided significant overnight visitation. Raymond had not been exercising that visitation, however, because the children were not comfortable with Raymond's relationship with his girlfriend and did not want to spend the night with Raymond. Susan claims the designation of sole physical custody is a "reflection of the actual contact being exercised" between Raymond and his sons. Susan claims that the trial court set up the visitation schedule in an attempt to "make it better" and to encourage the children to spend more time with Raymond. She states: "The order of joint legal custody and sole physical custody with generous visitation ... was both a determination of the reality of the relationship as existed between [Raymond] and his sons and an encouragement of an improved relationship fostered by frequent contact."
*186 In any event, we wonder whether it really matters whether the court called it sole physical or joint physical custody. The Supreme Court in Russell v. Russell, 210 S.W.3d 191, 193-94 (Mo. banc 2007), traced the history of the requirement that a movant, in order to obtain a change in parenting time, show a substantial and continuing change of circumstances. In that case, the court granting the dissolution had awarded "joint legal and physical custody" to mother and father. Id. at 194. Mother then sought to modify the joint physical custody arrangement. Id. The court explained that to change an award from joint physical to sole physical custody, the movant would have to show both a change of circumstances and the "best interest" requirement under section 452.410. Id. But the change mother sought amounted to simply a change in parenting time. Id. And if the change desired is only a change in parenting time, the court need find only that the change would serve the best interests of the child. Id. at 196. Here, though Raymond may feel slighted by the designation as the non-custodian, he has already received an order for the parenting time he wants. The reality is that he is a "joint physical custodian," regardless of the lack of such a label. See, e.g., In re Marriage of Parmenter, 81 S.W.3d 234, 238 (Mo.App.2002) (parent awarded visitation the second full weekend and the last full week of each month, all of the time during the summer school vacation except for the second full weekend and the last full week during that time, and alternate birthdays and holidays was awarded joint custody); In re Marriage of Johnson, 865 S.W.2d 412, 414-15 (Mo.App.1993) (parent awarded visitation every weekend except every third weekend, commencing at 6:30 p.m. on Friday and ending at 6:30 p.m. on Sunday was awarded joint custody). The fact that Raymond's parenting time may not be fully utilized does not change the fact that the decree makes provision for what is, in effect, joint physical custody.
Where the only issue, in actuality, is a simple shift in parenting time, it is no longer "appropriate" to require a showing of a substantial change of circumstances. Russell, 210 S.W.3d at 197. Raymond is, for all practical purposes, a joint physical custodian. It is not necessary to find error or to remand for correction of the decree where we can simply recognize and clarify that he is a joint physical custodian. Rule 84.14
Prenuptial Agreement
Moving on from that point, we encounter Raymond's claim that the trial court erred in ruling that the prenuptial agreement is unconscionable and unenforceable. He argues that the finding was not based on substantial evidence, went against the weight of the evidence, and misapplied the law. Raymond says the prenuptial agreement is valid because it was entered into freely, fairly, knowingly, and with full disclosure. He cites the following: Susan's requested changes were incorporated into the agreement; Susan was not an unwary or ill-informed spouse given that she was thirty years old and worked at a bank at the time of the marriage; all assets were fully disclosed in the agreement; the agreement was drafted in advance of the wedding by an attorney for Raymond; Susan had ample time to review the agreement; although she did not do so, Susan had the opportunity to have the agreement reviewed by an attorney of her choosing; no undue duress was placed on Susan to sign the agreement; the agreement allows for a mutual release of rights by allowing both parties to title assets separately during the marriage; and the agreement is not so one-sided as to render it unconscionable.
*187 "[I]t is well-settled law that an antenuptial agreement contemplating the dissolution of a parties' marriage is not against public policy and can be valid." In re Marriage of Thomas, 199 S.W.3d 847, 852 (Mo.App.2006). In Missouri, "to be valid and enforceable an antenuptial agreement must be entered into freely, fairly, knowingly, understandingly, and in good faith with full disclosure." Id. "This requirement has been interpreted by the courts to involve a subjective evaluation of the fairness surrounding the execution of the agreement." Id. "Factors which courts have considered relevant include the signatories' access to independent counsel, the amount of time available to revise the agreement, the bargaining positions of each spouse in terms of age, sophistication, education, employment, and experience, and whether their assets were fully disclosed." Id. "The fairness of the agreement must be determined as of the date of the agreement." Id.
"[A]ntenuptial agreements will be upheld and will dispose of issues of property division unless found to be unconscionable." Id. "An agreement is unconscionable when the inequality is so strong, gross, and manifest that it must be impossible to state it to one with common sense without producing an exclamation at the inequality of it." Id. "Conscionability ... mean[s] protection against onesidedness, oppression or unfair surprise." Id. Binding parties to the provisions of an antenuptial agreement only if the agreement was "conscionable and fairly made," provides protection to the unwary and ill-informed spouse. Id.
There are two aspects to unconscionability: procedural unconscionability and substantive unconscionability. See Repair Masters Constr., Inc. v. Gary, 277 S.W.3d 854, 857 (Mo.App.2009). "The former deals with the formalities of making the contract, while the latter deals with the terms of the contract itself." Id. "[P]rocedural unconscionability in general is involved with the contract formation process, and focuses on high pressure exerted on the parties, fine print of the contract, misrepresentation, or unequal bargaining position." Woods v. QC Fin. Serv., Inc., 280 S.W.3d 90, 95 (Mo.App.2008). "Substantive unconscionability refers to an undue harshness in the contract terms." Repair Masters Constr., Inc., 277 S.W.3d at 858. The courts look to both procedural and substantive unconscionability in determining whether a contract or a clause can be voided. See Woods, 280 S.W.3d at 95. It has been suggested that there should be a balancing between the substantive and procedural aspects and that if there exists "gross procedural unconscionability," then an agreement may be voided though there is not great substantive unconscionability. Id. It is also suggested "that the same sliding scale be applied if there be great substantive unconscionability but little procedural unconscionability." Id.
But it is also now clear that, even without any specific procedural unconscionability, a court can refuse to enforce a highly unconscionable (that is, substantively highly unconscionable) provision. See, e.g., Vincent v. Schneider, 194 S.W.3d 853, 858 (Mo. banc 2006). And here, in any event, the trial court considered issues of both procedural and substantive conscionability, with its main emphasis on the substantive terms of the agreement.
"At trial, the burden of proof on the issue of the validity of the antenuptial agreement rests with the party seeking to invalidate the agreement." In re Marriage of Thomas, 199 S.W.3d at 852. "The validity of an ante-nuptial agreement is governed by rules that are unique and are distinct from the requirements for the execution of an ordinary contract." Id. *188 This is particularly true in terms of consideration. Id. "An ante-nuptial agreement requires more consideration than that necessary for a simple contract, in that the consideration moving to the spouse or prospective spouse surrendering marital rights must be fair and equitable in the particular circumstances." Id.
"In situations where there is a[n] [antenuptial] agreement, the character of the property as community/marital or separate is not determined by the presumptions set forth by statute or case, but by the terms of the contract." Id. "By statute, `marital property' in a dissolution proceeding does not include `[p]roperty excluded by valid written agreement of the parties.'" Id. at n. 2 (quoting section 452.330.2(4)). "An antenuptial agreement must ... be read as a whole in order to determine its purpose and meaning." Id. at 853.
Raymond and Susan were married on Saturday, September 21, 1985. There is no dispute that the prenuptial agreement was prepared by attorney Adam Fischer in advance of the wedding at Raymond's request. It contained a full disclosure of Raymond's assets. Susan at some point reviewed the agreement and requested changes be made. Adam Fischer made the changes. The record does not show when he made the changes. Fischer said that the changes were not made in the last day or two before the wedding. Susan said that the change would have been made some time between mid-week and Friday night. The agreement was signed on Friday, September 20, 1985. At the time of the marriage, Raymond's assets were significantly greater than Susan's assets. Raymond entered the marriage with $627,373.57 while Susan entered the marriage with $5,000.00.
The parties' testimony conflicted as to how the prenuptial agreement was prepared and signed. Raymond erroneously focuses on evidence that is contrary to the trial court's judgment, including his testimony and the testimony of Adam Fischer. The standard of review requires this court to disregard evidence and inferences contrary to the judgment. Kester, 108 S.W.3d at 218. "We presume that the trial court... believed such testimony and evidence that is consistent with its judgment." Id.
Susan testified that she never met with Adam Fischer. She testified that she first received the prenuptial agreement to review on the Wednesday prior to the Saturday wedding. She was able to discuss the prenuptial agreement with a friend and to request that changes be made. Susan said the revised prenuptial agreement was presented to her for her signature at 7:00 p.m. on Friday night as the parties were about to leave for their wedding rehearsal. The wedding was planned for the next day. Susan believed that her only choice was to sign the agreement or suffer humiliation in front of her friends and family. She said that she did not sign the agreement in front of a notary public (even though the agreement is notarized). Susan never consulted an attorney about the agreement, perhaps in part because she was first presented with the agreement a few days before the wedding. Susan said she was in the midst of wedding preparations and lacked sufficient time to examine the agreement. She testified that she did not understand the document. The trial judge, of course, was not required to believe either Raymond's testimony or the testimony of Raymond's attorney that no changes were made in the last day or two before the wedding. Thus, there was some evidence which could support the conclusion that the agreement was procedurally unconscionable.
The prenuptial agreement does more than protect separate property existing at *189 the time of the marriage. It allows either party to acquire property subsequent to the marriage (from any source including Raymond's business) and protect it as separate property by simply titling and holding the newly acquired property in that party's sole name. For example, under the agreement as drafted, all earnings generated from Raymond's holdings, which would normally be considered marital property, could be shielded from becoming marital. Those earnings could be converted to Raymond's separate property merely by depositing such earnings in assets titled only to Raymond. The prenuptial agreement also does not address the matter of accrued debt. Thus, the agreement purports to leave Susan with equal responsibility for debt even though Raymond could receive a windfall in his freedom to designate what property becomes marital and what does not. Basically, the agreement gave Raymond a free hand to cut Susan out of a marital estate and to leave her with a formula distribution that was designed to be in lieu of maintenance.
Raymond points out that courts have upheld prenuptial agreements where one party's assets were significantly greater than the other spouse's assets at the time of execution. He also states that courts have upheld prenuptial agreements that were signed shortly before the wedding. Raymond argues that embarrassment does not rise to the level of duress. He also states that prenuptial agreements allowing parties to designate property as separate property have been upheld.
Raymond's arguments focus on each piece of evidence singularly instead of on the combined weight of all the evidence together. The trial court believed that Susan was given a short time to review the prenuptial agreement, which is part of procedural unconscionability. See, e.g., McMullin v. McMullin, 926 S.W.2d 108, 111 (Mo.App.1996) (an aspect of full disclosure involves whether a party was given enough time between the presentation of the final draft and the wedding to reasonably consider whether she should seek legal advice prior to signing); In re Estate of Arbeitman, 886 S.W.2d 644, 647 (Mo. App.1994) (arguing that the time frame between signing the prenuptial and the wedding was too short but not arguing that the short time frame resulted in a lack of understanding of the prenuptial agreement). While Susan was not uneducated, she denied understanding the terminology of the prenuptial agreement and its consequences. Compare In re Marriage of Thomas, 199 S.W.3d. at 858 (noting the distinction between not having available time to understand and revise a prenuptial agreement and understanding the terms of an agreement despite a short time frame); Miles v. Werle, 977 S.W.2d 297, 302 (Mo. App.1998) (holding that the parties' bargaining power was similar and the antenuptial agreement was not unconscionable where both parties had high school educations, stated they understood the terms of the agreement, and "each appended property list[s]" to the agreement even though husband had no assets); In re Marriage of Thomas, 199 S.W.3d. at 860 (stating: "On the contrary, the record is replete with instances in which Wife herself testified she had knowledge of the terms of the antenuptial agreement; she was represented by counsel; and she willingly signed the agreement.").
The trial court also presumably recognized that the agreement contained elements of substantive unconscionability. Raymond came into the marriage as the only one with assets that would generate future assets. As already mentioned, the agreement allowed him to categorize all assets generated in the future as separate property. Compare King v. King, 66 *190 S.W.3d 28, 36 (Mo.App.2001) (holding antenuptial agreement was not unconscionable where although the agreement "provided that the separate property of the parties remain separate, and that provision did result in a great disparity between the separate property set aside to each spouse[,][t]he agreement ... did not attempt to preclude an award of marital property to [w]ife"); Miles, 977 S.W.2d at 303-04 (holding antenuptial agreement was not unconscionable where husband "retained his rights to the accrual of marital property"; the agreement "did not seek to totally prevent [husband] from obtaining the marital assets which he would have obtained absent the agreement"; and where "the agreement basically provided only that what each spouse brought into the marriage as separate property would remain their own separate property"). "[U]nconscionability has been found where... the agreement attempts to totally take from one of the spouses his or her presumed right to marital property." In re Marriage of Thomas, 199 S.W.3d at 860. "When a prenuptial agreement purports to inhibit remedies provided by statute, it should be rather strictly construed." B.J.D. v. L.A.D., 23 S.W.3d 793, 800 (Mo. App.2000). Here, although the record does not reveal whether Raymond abused his right to characterize and designate assets generated from other assets, the validity of the agreement is determined as of the date of its execution. In re Marriage of Thomas, 199 S.W.3d at 861. The agreement, by its terms, allowed Raymond to generate a large estate of non-marital property while limiting the distribution to Susan (upon dissolution) exclusively to a formula to be in lieu of maintenance, even after a twenty year marriage in which Susan had devoted her efforts to raising the children and running the household and thereby supporting Raymond's business.
All of these factors, combined, support the trial court's determination that the prenuptial agreement was invalid and not enforceable.
The point is denied.
Classification of Property
Raymond claims the trial court erred in its classification of marital and nonmarital property. He argues that the determination is not supported by evidence, goes against the weight of the evidence, and misapplies the law. Raymond says that the prenuptial agreement is valid, and therefore the determination of nonmarital property must be made in accordance with the terms of the prenuptial agreement. Because we have affirmed the trial court's finding that the prenuptial agreement was invalid, we need not address this point.
The point is denied.
Property Division
Raymond claims that the trial court erred in awarding Susan an unequal division of property. He argues that the award is against the weight of the evidence and misapplies the law. Raymond says that the court put undue weight on the fact that he has a girlfriend and failed to consider Susan's conduct. He also claims that the court overstated his income and financial resources. The value of his financial resources was a question of fact, as to which the court made a credibility determination. While the division of marital property was not equal, it was not shockingly disproportionate. Susan received $238,000 in marital assets, but the court granted Raymond a judgment against Susan for $158,400. Raymond was assigned responsibility for the debts, which exceeded $107,000. Raymond was allowed to retain all of his stock in the business, which *191 was of undetermined value. No abuse of discretion is shown here.
Attorneys' Fees
The court awarded Susan an additional $22,000 in the form of an award of attorneys' fees. The judgment states:
The basis for an award to [Susan] of her attorney fees (in the form of a higher division of marital assets) is that [Raymond's] affair is the cause of the dissolution of the marriage. [Raymond] has chosen to break his marriage covenant for the sole reason that he wants to trade what he feels is his less-exciting wife for a more exciting one. Additionally, much of the expense of this dissolution is a direct result of [Raymond's] disregard of corporate formalities in that he moves money and assets between family to company without any paperwork to support the transfers, sales, or loans, blurring all distinction between the two. Finally, [Raymond's] earning capacity far exceeds [Susan's]. For these reasons, [Raymond] should be primarily responsible for the extraordinary expense of this proceeding.
Raymond's argument discusses the law pertaining to awarding attorneys' fees, including a discussion of the factors set forth in section 452.355.1. The decision by the court to refer to the attorneys' fees as a "division of marital assets" introduces confusion as to the standard of review. We see no indication that it is proper to merge together the concept of division of assets and the concept of attorneys' fees. Despite the trial court's terminology, we will review the award of attorneys' fees under section 452.355 rather than as a division of property.
Section 452.355.1 provides that a court may award attorneys' fees in a dissolution case "after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action." "We review the trial court's decision to award attorneys' fees for an abuse of discretion." Groenings v. Groenings, 277 S.W.3d 270, 279 (Mo.App.2008). "An abuse of discretion occurs where the trial court's award was so arbitrary and unreasonable and against the logic of the circumstances as to shock the sense of justice and indicate that the trial court did not carefully consider its decision." Id. at 280. "The party requesting an award of attorney fees in a dissolution action has the burden of proving his or her entitlement to such an award." Id. "Even if the trial court does not expressly indicate that it considered all of the factors under [section] 452.355, we presume that it did consider all the factors, and the complaining party bears the burden of overcoming that presumption." Hart v. Hart, 210 S.W.3d 480, 493 (Mo.App.2007).
"While a spouse's inability to pay is not required to support an award of attorney's fees, the award must consider the financial position of each spouse." Groenings, 277 S.W.3d at 280. "However, the fact that one party earns more than the other, standing alone, does not compel an award of attorney fees." Id. "The trial court is also permitted to consider a spouse's conduct during the marriage in determining whether an award of attorney's fees is appropriate." Id. "The trial court may grant a partial award of attorney fees, even if the parties' financial condition does not otherwise necessitate an award of fees, where misconduct has taken place." Hart, 210 S.W.3d at 494.
The trial court found that Raymond earns more money than Susan, that Raymond was guilty of marital misconduct, and that Raymond's actions increased Susan's legal expenses. These findings are *192 supported by the evidence deemed credible by the trial court. It is also true that Raymond's financial affairs were not simple, requiring a significant amount of time to be invested by Susan's attorney. Raymond complains that the trial court failed to acknowledge Susan's misconduct. The trial court presumably found that Susan was not guilty of misconduct. See id. (inferring from an award of attorneys' fees in favor of wife that the trial court apparently did not agree with husband's claims that wife was guilty of misconduct). Raymond fails to show why the court should have regarded Susan as guilty of misconduct affecting the marriage. We cannot say that the award of attorneys' fees was an abuse of discretion.
The point is denied.
Maintenance
Raymond claims that the trial court erred in awarding maintenance to Susan. He argues the award goes against the weight of the evidence, is not supported by the evidence, and misapplies the law. Raymond says the prenuptial agreement is valid and provides a formula to determine the amount of money to be awarded to Susan in lieu of maintenance. He says that even if the prenuptial agreement is not valid, then the amount of maintenance awarded to Susan is still too high because it does not take into consideration the child support Susan receives and her other financial resources. Raymond also says the court did not properly consider his financial resources because the income the court imputed to him is too high.
"A trial court is vested with broad discretion in granting maintenance within a dissolution decree." McMullin, 926 S.W.2d at 111. We will reverse an award of maintenance only if the trial court abuses its discretion "by acting against the weight of the evidence or by erroneously declaring the law." Id. at 111-12. "Unless the amount is patently unwarranted, or is wholly beyond the means of the spouse who pays, interference by this court is inappropriate." Id. at 112.
"Before maintenance may be awarded, a trial court must find the spouse seeking such an award 1) lacks sufficient property, including marital property granted to him, to provide for his reasonable needs; and 2) `[i]s unable to support himself through appropriate employment.'" Id. at 112 (quoting section 452.335). "In the past, alimony was usually awarded to enable the spouse to live according to her standard of living at the time of the divorce decree." Id. "After passage of the Dissolution Act, however, reasonable needs did not automatically equal the standard of living enjoyed during the marriage." Id. Section 452.335.2 states:
The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) The comparative earning capacity of each spouse;
(4) The standard of living established during the marriage;
*193 (5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;
(6) The duration of the marriage;
(7) The age, and the physical and emotional condition of the spouse seeking maintenance;
(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
(9) The conduct of the parties during the marriage; and
(10) Any other relevant factors.
The court found that Susan was not able to support herself with her own employment at the time of judgment and that she had insufficient property with which to support herself. It found her reasonable monthly expenses to be $3,627 and her income to be $1,127 per month. It considered the factors set forth in section 452.335.2 and awarded $2,500 per month in maintenance.
Raymond makes several arguments concerning application of the prenuptial agreement. Because we do not quarrel with the trial court's conclusion that the agreement is not valid, we need not discuss these arguments.
Raymond also argues that the trial court arrived at the amount of maintenance by subtracting Susan's income from her expenses. He claims error because the trial court neglected to include the child support awarded to Susan ($1,180 per month) when tallying Susan's income. He forgets that the child support is for the needs of the children, not for Susan's personal needs. Raymond fails to show that the court erred in its calculation of a reasonable sum for maintenance.
Raymond further argues that the trial court's determination of his income is against the weight of the evidence. He states that his business has suffered significant financial difficulties over the past several years and that the trial court's finding that the decline will not continue into the future is not supported by evidence. The trial court imputed $12,000 in monthly income to Raymond. He claims that his reasonable income should have been set at $5,417 based on his testimony that he could earn between $60,000 and $70,000 per year working for another company. He forgets that he failed to demonstrate by credible, documented evidence that his company is insolvent. Thus, he failed to show that he must seek employment elsewhere.
The dissolution trial was held in June and July 2008. On their 2005 tax returns, the parties indicated $98,500 in wages and $66,626 in rental real estate income. On their 2006 tax returns, the parties indicated $52,000 in wages and $70,055 in rental real estate income. The trial court found that Raymond has consistently earned $80,000 in wages, $44,000 in rent, and $100,000 in various other company withdrawals. The court attributed $12,000 per month ($144,000 per year) in income to Raymond. This finding is supported by the 2005 and 2006 tax returns, along with the fact that Raymond's testimony suggests that once the 2003 dispute is fully resolved, the company is likely to be more profitable.
Raymond argues that the maintenance award leaves him insufficient funds to provide for his reasonable needs. He states that paying $2,500 in maintenance and $1,180 in child support will leave him with only $1,737 to meet his monthly expenses. He notes that he was awarded $106,949.78 in debt. This argument, of course, presupposes that $5,417 as opposed to $12,000 is attributed to Raymond as salary. Because the $12,000 figure is supported by sufficient evidence, Raymond's argument that *194 he lacks funds to meet his needs is without merit.
The point is denied.
Child Support
Raymond claims the court erred in the amount of child support awarded to Susan. He argues the award was not based on substantial evidence and misapplied the law. Raymond says the court should not have included maintenance on the Form 14 calculation because it is excluded by the prenuptial agreement. He also says that, based on the parenting time he was awarded in the parenting plan, he is entitled to a greater overnight credit on the Form 14. Raymond states that the amount of income imputed to him is not supported by the evidence because his business has declined and does not yield a profit. Once again, Raymond wants to view the evidence only from his own point of view, without considering that the court, as factfinder, did not need to believe all that Raymond said. Raymond says that the court improperly excluded the expert testimony of an accountant pertaining to his business; but as we have noted, Raymond does not show that a proper foundation was laid for the accountant's testimony.
The trial court follows a two-step procedure when determining child support awards in compliance with section 452.340 and Rule 88.01. McCandless-Glimcher v. Glimcher, 73 S.W.3d 68, 72 (Mo.App.2002). "In the first step, the trial court must determine and find for the record the presumed child support amount under Form 14." Id. at 73. "In the second step, the trial court, after considering all relevant factors, must determine whether to rebut the [presumed child support amount] as being unjust or inappropriate." Id.
"In determining the presumed child support amount under the first step of the procedure ... the trial court can either accept one of the Form 14 calculations submitted by the parties, or reject both parties' Form 14 calculations and prepare its own Form 14." Id. "The trial court must reject a Form 14 calculation if 1) an item is incorrectly included in the calculation; 2) an amount of an item included in the calculation is incorrect; or 3) the mathematical calculation is incorrect." Id. "To decide whether the presumed child support amount has been correctly calculated in a Form 14, the trial court is guided by [Form 14]'s directions for completion and comments for use, and the evidence in the case." Id. "On appellate review of the correctness of the presumed child support amount, this court review[s] the calculation to ensure that not only [is it] done accurately from a mathematical standpoint, but that the various items and their amounts were properly included in the calculation and supported by substantial evidence." Id.
"A trial court may use a party's tax returns in determining the party's income for purposes of calculating child support awards." Mayben v. Garren, 286 S.W.3d 854, 856 (Mo.App.2009). "The court, however, is not required to adopt the determination of income for income tax purposes as its determination of income for purposes of calculating presumed child support." Id. at 856-57. "Form 14 allows the trial court the necessary flexibility to determine a parent's income for the purposes of fixing child support in light of what the court has discovered during proceedings on the matter." Id. at 857.
The trial court rejected the Form 14 submitted by the parties. Instead, it prepared its own Form 14. The court found that Susan was capable of earning minimum wage and attributed that to her. It *195 found that Raymond has consistently demonstrated the ability to earn approximately $12,000 per month. It found no reason to believe that this pattern would not continue in the long term. The court found that, in the short term, the evidence is that Raymond's income may be smaller until the effects of past accounts receivable defaults can be corrected. The trial court determined that all company payments to Raymond that were credited to the company's "due from shareholder" account are not really loans from the company, but rather were compensation withdrawals. The court determined that these withdrawals were Raymond's salary taken in a manner so as to defer his tax liability.
Raymond also reiterates the argument he made in the section discussing maintenance. He claims that the trial court erred in determining his income. He again focuses on evidence contrary to the judgment. He complains that one of his proffered expert witnesses, an accountant who would testify that Raymond's business was spiraling downward, was improperly excluded because the expert had not conducted an adequate audit. Raymond, however, does not set forth an argument that the expert was qualified to provide an admissible opinion. We do not assume error occurred merely because Raymond says so; the fact of error must be demonstrated by argument and by references to the record. Raymond, however, seems not to understand this. He cites the expert's proffered testimony along with his own testimony as evidence the court should have relied on in determining the likely earnings of his business. Again, this is contrary to the standard of review. "In reviewing the record, this court views the evidence in the light most favorable to the trial court's judgment, and defers to the trial court's credibility determinations." McCandless-Glimcher, 73 S.W.3d at 72.
Raymond also claims error in providing him an insufficient adjustment for overnight parenting time. Line 11 of the Form 14 pertains to "[a]djustment for a portion of amounts expended by the parent obligated to pay support during periods of overnight visitation or custody." The directions and comments indicate that "[t]he adjustment shall be calculated by multiplying the basic child support amount from line 5 by the applicable adjustment from the table below. This adjustment is based on the number of periods of overnight visitation or custody per year awarded to and exercised by the parent obligated to pay support under any order or judgment." (Emphasis added.) Also, Comment B(1) indicates that the presumed amount may be rebutted if the parent "does not exercise" the period of parenting time provided under the judgment.
The parenting plan provides for Raymond to have 160 overnights per year with the children. Thus, if all of that parenting time were being exercised, Raymond would clearly be entitled to an overnight credit greater than 6%. However, the evidence at trial was that he was not exercising many of his overnight visitations with the children under the temporary custody order. The evidence was consistent with an overnight visitation credit of 6%. The court was entitled to consider whether it was likely in the near future that more overnight visitation would be exercised. Given our standard of review, we cannot say a 6% overnight credit is error. Under Comment B(1) of the Directions and Comments, the percentage set forth in Line 11 is rebutted. If Raymond begins to actually exercise more overnight parenting in the future, an adjustment could be made at that time.
The point is denied.
*196 Attorneys' Fees on Appeal
Raymond claims that the trial court erred in ordering him to pay $5,000 for Susan's attorneys' fees on appeal and costs on appeal. He argues that the ruling was an abuse of discretion, was not based on substantial evidence, and misapplied the law. Raymond says the trial court must consider the current financial condition of the parties before making an award of attorneys' fees on appeal. He says no competent evidence was presented to the court regarding the parties' then current financial status. Raymond also claims that the court's ruling was based solely on speculation and statements of counsel with no testimony presented by either party as to their then current financial condition or Raymond's ability to pay Susan's attorneys' fees. He notes that the fact that one party is appealing does not mean he or she is obligated to pay the other party's attorneys' fees on appeal. Finally, he states that even if the court considered the evidence presented at the underlying dissolution trial, it did not consider the financial condition of the parties between the time of the dissolution and the time of the hearing on the motion for attorneys' fees as it is required to do.
"Section 452.355.1 permits the trial court to award attorneys' fees on appeal of a dissolution decree." Groenings, 277 S.W.3d at 280. "A party seeking attorney's fees on appeal must show the extent of the necessary services to be rendered by counsel, and the expenses related thereto, so that the trial court may make an award based on evidence of such services and expenses." Id. "The trial court is considered an expert on the necessity, reasonableness, and value of attorney's fees." Id. "We presume the trial court's award is correct and we will reverse the award only upon a showing that the trial court has abused its discretion." Id.
"The party requesting an award of attorney's fees has the burden of proving entitlement to such award." Andrews v. Andrews, 290 S.W.3d 783, 787 (Mo.App.2009). "In determining the propriety of an award of appellate attorney's fees in a dissolution action under Section 452.355.1, the court must consider the financial history of the parties since the dissolution being appealed was granted." Id. "Moreover, when awarding attorney's fees, a court must know what debts each party owes, as well as what employment and non-employment income each party has, before it can determine either need or ability to pay such fees." Id. "One spouse's superior ability to pay will suffice to support an attorney's-fee award." Cosby v. Cosby, 291 S.W.3d 795, 800 (Mo.App. 2009). "In addition, the trial court may consider a spouse's conduct during the marriage in making its determination." Id.
The dissolution trial was held in June and July 2008. The first amended judgment was entered on September 24, 2008. The hearing on the motion for attorneys' fees on appeal was held on November 25, 2008. Neither party testified at the November hearing. The hearing consisted solely of statements of counsel and questions from the judge to counsel. The trial court, of course, had not forgotten the facts of the relative financial positions of the parties. Susan's attorney argued that she be awarded attorneys' fees on appeal because: (1) the allegation made by Raymond regarding the custody designation was without merit, and Susan would have to defend against that allegation; (2) Raymond had funds to pay for the transcript on appeal; (3) Susan decided not to file her own appeal from the judgment because of lack of funds; and (4) if the issues raised are important enough for Raymond to appeal, they should be important *197 enough to Raymond for him to pay Susan's attorneys' fees on appeal.
Generally, the court is to consider the financial resources of the parties since the dissolution, even if the time period between the dissolution hearing and the appellate fee hearing is relatively short. See Davis v. Schmidt, 210 S.W.3d 494, 517 (Mo.App.2007) (the hearing on Mother's motion for appellate attorney fees took place approximately eight months after trial without evidence of Mother's post-dissolution financial condition). See also Mozingo v. Mozingo, 779 S.W.2d 284, 285 (Mo. App.1989); Eckstein v. Eckstein, 748 S.W.2d 945, 948 & n. 2 (Mo.App.1988); Heins v. Heins, 783 S.W.2d 481, 485 (Mo. App.1990).
Unlike Davis, in which the trial court awarded $25,750 in advance of the appeal some eight months after the dissolution judgment, 210 S.W.3d at 517, here the amount was essentially the cost of the transcript (estimated at $4,700) awarded some four to five months after the dissolution trial. The court acknowledged that the economy was "tanked." But the court went on to ask counsel for additional information, reminding them that "maybe [Raymond] does have some good business and there is income coming through his business, but how do we know?" Susan's attorney asked the court to consider the evidence from the dissolution trial (in which the court found that Raymond received about $12,000 per month through his businessin contrast to her minimum wage earningsand that such income from the business was likely to continue). Raymond objected to a re-presentation of such evidence; Raymond, however, did not offer to present any evidence of his own as to any current factors affecting Raymond's financial resources. If Raymond could have presented evidence that would have been helpful to his cause, he should have spoken up at that time. If his own financial well-being, or that of the business, was suffering, and especially if he had any new information, or any new way of documenting and clarifying the facts as to his alleged troubles, he should have said so. Although the court was not expressing interest in re-plowing the same ground with the same exact offer of information, the court was clearly open to hearing any new evidence. Raymond should not be allowed to sit silently by while possessing undisclosed pertinent information without offering to disclose it, and then, after the ruling, accuse the court of error. A party cannot be allowed to invite error in that fashion.
We fail to see any trial court error here. Unlike in Heins and Davis, the trial court here did not prevent Raymond from offering testimony as to any post-trial change in his financial circumstances.
This case also does not involve an exorbitant amount for a pre-appeal award. The case involves complicated issues, including a prenuptial agreement, maintenance, child support, and custody related issues. There is no question that Raymond's business historically had been a good, well-established, and productive business. The discovery and litigation need not go on ad nauseum when the party who allegedly believes there is a recent hardship change does not say so, and does not offer to present pertinent information. We do not view the attorney's fee award statute as requiring an additional evidentiary hearing every time there is a motion for attorney's fees, especially when the parties are silent about the need to consider post-trial information. If some cases seem to suggest such a mandatory requirement, we would tend to differ as a matter of statutory interpretation. It is enough, here, that the court gave appropriate consideration to the recently presented *198 and historical financial condition of the parties, along with the fact that (1) the court obviously would have welcomed any information Raymond sought to present, but Raymond did not offer any information, and (2) the attorneys' fees award barely covered the cost of the transcript. We discern no error in the court's common sense handling of the matter. The court also did not abuse its discretion in the amount awarded.
The point is denied.
Conclusion
Based on the amount of parenting time allowed Raymond in the trial court's judgment, Raymond is, for all practical purposes, a joint physical custodian. See Russell, 210 S.W.3d at 193-97. In any event, even if remand for amendment were appropriate, it is not necessary. Raymond is a joint physical custodian. Rule 84.14.
Having carefully reviewed Raymond's other points on appeal, we find no ground for reversal of the trial court's rulings. The judgment is amended to show that Raymond is a joint physical custodian. Id. The judgment is otherwise affirmed. Each party shall bear its own costs on this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618075/ | 615 So. 2d 216 (1993)
Joseph M. CARRIGAN, Appellant,
v.
UNEMPLOYMENT APPEALS COMMISSION and Manny's Pizza House, Appellees.
No. 92-1456.
District Court of Appeal of Florida, Fifth District.
March 5, 1993.
Joseph M. Carrigan, Edgewater, pro se.
John D. Maher, Tallahassee, for appellee Unemployment Appeals Com'n.
*217 No Appearance for appellee Manny's Pizza House.
W. SHARP, Judge.
Carrigan appeals from a decision of the Unemployment Appeals Commission, which affirmed a referee's determination that he had not timely appealed a denial of his claim for unemployment benefits. The state offered no competent evidence that the denial had been mailed to Carrigan more than twenty days before he filed his appeal and Carrigan testified he only received the denial five days before his appeal was filed. We reverse.
Carrigan was employed by Manny's Pizza House for the last two quarters of 1990 and virtually all of 1991. Omar Larson, the owner, was also the mortgage holder on the residence in which Carrigan resided. Carrigan claimed he had a verbal agreement with Larson that Carrigan would be given a sufficient number of working hours each week at Manny's to enable him to make the mortgage payments on the property. After a time, Larson ceased to abide by this agreement, causing Carrigan's mortgage payments to be jeopardized.
On December 4, 1991 Carrigan's employment terminated with Manny's. Carrigan claimed he was fired by the manager in Larson's presence and with his consent. Carrigan criticized the restaurant for leaving meat on the floor overnight. Manny's claimed that Carrigan left his job due to dissatisfaction with work conditions.
Carrigan applied for unemployment benefits and received a "Wage Transcript and Determination," dated February 6, 1992, which showed he would receive $72.00 per week in unemployment benefits. Thereafter, the Division denied Carrigan all benefits and mailed him a determination advising him of this denial.[1] This document contains the following notation: "Mailing Date: February 11, 1992." On March 9, 1992, Carrigan filed an appeal of the denial. On the notice of appeal, Carrigan penned: "We just received this determination on March 4, 1992."
Sections 443.151(3)(d) and 443.151(3)(a), Florida Statutes (1991) provide that the Division must promptly notify persons of a redetermination denying them benefits, and that persons have 20 days in which to file an appeal.[2] The referee found Carrigan's notice of appeal to be untimely. The time between the "mailing date" of the determination denying him benefits, listed as February 11, 1992, and Carrigan's filing of the notice of appeal on March 9, 1992, exceeded the 20-day period. However, Carrigan contended both at the hearing and on the notice of appeal, that he did not receive the determination letter until March 4, 1992. Since his was the only competent evidence adduced on this point, the referee's determination of untimeliness must be reversed.
Section 443.031 provides that Chapter 443 is to be liberally construed, and numerous cases have held that although an appeal was not timely filed, an appeal was proper. See e.g., Robinson v. Florida Unemployment Appeals Commission, 526 So. 2d 198 (Fla. 4th DCA 1988); Pierre v. Oriente Sugar Cane Planting, 504 So. 2d 431 (Fla. 4th DCA 1987); State ex rel. Owra v. Florida Department of Commerce, Div. of Employment Security, 351 So. 2d 769 (Fla. 3d DCA 1977).
*218 To establish the mailing date, courts require competent factual evidence of the date of mailing. Teater v. Department of Commerce, Board of Review, 370 So. 2d 847 (Fla. 3d DCA 1979) (substantial and competent evidence); Colonnades, Inc. v. Florida Department of Commerce, Div. of Employment Security, 357 So. 2d 238 (Fla. 1st DCA 1978) (preponderance of the evidence). See also, § 120.68(10), Fla. Stat. (1991). Mere testimony of customary procedures is insufficient. Colonnades. Without such evidence, the date of mailing is subject to mere guesswork, and creates such uncertainty that the ends of justice are best served by allowing the appeal. Teater at 848; Fox v. South Florida Regional Planning Council, 327 So. 2d 56 (Fla. 1st DCA), cert. denied, 336 So. 2d 1181 (Fla. 1976). We do not think that a typed notation of the "mailing date" on top of the determination is sufficient evidence to establish the mailing date. Teater; Colonnades.
REVERSED AND REMANDED.
COBB and HARRIS, JJ., concur.
NOTES
[1] Carrigan makes other, serious allegations about the processing of his claim and against Larson which have not been heard due to the untimely finding of the appeal.
[2] Section 443.151(3)(d) provides:
(a) Notice of determination or redetermination pursuant to s. 443.101. Notice of any determination or redetermination which involves the application of the provisions of s. 443.101, together with the reasons therefor, shall be promptly given to the claimant and to any employer entitled to notice thereof, such notice to be given in the manner provided in this subsection, provided that the division shall by rule prescribe the manner and procedure pursuant to which employers within the base period of a claimant may become entitled to such notice. Section 443.151(3)(a) provides, in part:
The claimant, ... shall be promptly notified of such ... determination, and such determination shall be final unless within 20 days after the mailing of such notices to the parties' last known addresses, ... appeal or written request for consideration is filed by the claimant... . | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618076/ | 685 S.W.2d 236 (1985)
PORTER'S READY-BUILT, INC., Respondent,
v.
Larry PLUMMER, Appellant.
No. WD 35582.
Missouri Court of Appeals, Western District.
January 22, 1985.
F. Russell Millin, Kansas City, for appellant.
M. Sperry Hickman, Independence, for respondent.
Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
CLARK, Presiding Judge.
Respondent Porter's Ready-Built, Inc. sued appellant Larry Plummer on an unpaid account. Trial of the case to the court resulted in judgment for Porter in the amount of $3850.00 and Plummer appeals. The appeal is dismissed.
The sole issue in the case was whether Plummer was liable as an individual for the cost of installing a wrecker unit on a truck, a service provided by Porter at Plummer's request. Neither the work nor the charge presented any issue. Plummer's defense was that he had contracted the work on behalf of a Colorado corporation, Estes Park Ford, in which he and his then wife were the shareholders.
Respondent has moved to dismiss the appeal for failure by Plummer to comply with Rule 84.04(c) in the statement of facts set out in his brief, and a failure of the statement of points to comply with Rule 84.04(d). We note that this court entered its order September 25, 1984 advising Plummer that his brief would be stricken for failure to comply with Rule 84.04(d). An amended brief was filed October 11, *237 1984, but the additions did not remedy the lack of particularization in the claims of error. Respondent's brief filed November 7, 1984 incorporated the motion to dismiss and suggestions in support. Apart from a motion to strike respondent's motion, appellant has not responded with opposing suggestions.
Liberality has routinely been extended to appellants in the matter of statements of points on appeal and, consistent with that practice, appellant's cause would probably survive a motion to dismiss if only the statement of points was deficient. Here, however, the violation of Rule 84.04(c) in the statement of facts contained in appellant's brief is so flagrant as to warrant and require the sanction of dismissal of the appeal.
Rule 84.04(c) requires of the appellant that he set out in his brief a fair and concise statement of the facts without argument. The purpose of the rule is primarily to afford an immediate, accurate, complete and unbiased understanding of the facts of the case.[1]Wipfler v. Basler, 250 S.W.2d 982, 984 (Mo.1952). Failure of the appellant to comply substantially with the rules warrants dismissal of the appeal. Commerce Bank of Kansas City v. Conrad, 560 S.W.2d 388 (Mo.App.1977); appeal dismissed 436 U.S. 901, 98 S. Ct. 2228, 56 L. Ed. 2d 399, reh'g denied, 437 U.S. 912, 98 S. Ct. 3106, 57 L. Ed. 2d 1143 (1978).
An accurate and unbiased statement of the facts is a particularly significant component of the appellant's brief in this case because the only point arguably to be presented on the appeal is whether the judgment is supported by substantial evidence and is not against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Because the judgment below was for Porter after a bench trial, the facts to be accepted as true on appeal are those drawn from evidence favorable to Porter, with attending favorable inferences, and contradictory testimony is to be disregarded. Mills v. Cameron Mutual Insurance Co., 674 S.W.2d 244, 247 (Mo. App.1984).
The statement of "facts" set out by Plummer in his brief blatantly ignores all of the above requirements and, instead, conveys a false, distorted and imperfect impression of the evidence in the case. The statement entirely ignores Porter's evidence which included, among other testimony, an unqualified disclaimer of any knowledge about Plummer's Colorado corporation. The statement of facts is neither fair nor complete because it recites only evidence favorable to Plummer and omits all other facts pertinent to the case.
In a pernicious manner, the statement of facts also offends because it is inaccurate and misleading. The statement conveys the impression that the creditor corporation, Porter's Ready-Built, had significant exposure to a public holding-out by Plummer of his corporate business entity through the medium of a large outdoor advertising sign at his place of business, by use of the corporate name on shop tickets and checks and by a window sticker on the Ford truck which was involved in the wrecker installation. In fact the trial transcript shows no evidence that any representative of Porter's was ever in Estes Park, Colorado where the advertising sign could be viewed, there was no proof business forms of Estes Park Ford, Inc. ever came to Porter's and no proof at all that the truck in question had any window sticker, much less one bearing the name Estes Park Ford, Inc. In a biased and inaccurate presentation, appellant's statement represents the facts it recites to have been admitted or uncontested when they were neither.
A reading of Plummer's fact statement creates an initial impression that the judgment of the trial court was not supported by the evidence and was against the weight *238 of the evidence. That impression, is however, erroneous and is solely the product of an unfair and inaccurate presentation of the facts. Neither the court nor opposing parties are obliged to labor under such a handicap in dealing with an appeal. The only appropriate remedy in an egregious case of this nature is dismissal of the appeal.
Respondent has also moved for assessment of damages for a frivolous appeal. In this case, we do not reach the issue and conclude our review with the dismissal order. The motion for damages is denied.
The appeal is dismissed.
All concur.
NOTES
[1] An ancillary benefit is a realistic appraisal by appellant of the facts viewed impartially. The required summary of the evidence in this case would or should have alerted appellant to the lack of merit in his claim that the judgment by the trial court was not supported by the evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618082/ | 615 So. 2d 1347 (1993)
Laquietta PARKER, et al.
v.
The FRENCH MARKET CORPORATION.
Robert ANDERSON
v.
FRENCH MARKET CORPORATION.
Nos. 92-CA-0495, 92-CA-0506.
Court of Appeal of Louisiana, Fourth Circuit.
March 19, 1993.
*1348 Marc H. Morial, New Orleans, for plaintiffs, appellants Laquietta Parker d/b/a Handbags Unlimited, Douglas Hong d/b/a Pacific Ocean Imports and Mehrunnisa Schermohmad d/b/a Nishi Imports.
Brian M. Begue, New Orleans, for plaintiff, appellant Robert Anderson.
Before BARRY, BYRNES and WARD, JJ.
BARRY, Judge.
Several vendors at the Flea Market in the Vieux Carre appeal the denial of a preliminary and permanent injunction to *1349 prohibit the French Market Corporation from allocating stalls based on a recent tenure list of vendors.[1]
In one lawsuit the City of New Orleans was named a defendant through the French Market Corporation, an agency of city government. The other suit cited "French Market Corporation, a public benefit corporation funded by the City of New Orleans, ... an agency and instrumentality of City government." French Market filed exceptions of no cause and no right of action based on its private, nonprofit status, but the court never ruled on the exceptions. A temporary restraining order to "prohibit the City of New Orleans and its French Market Corporation" was granted. The vendors' cases were consolidated and a preliminary and permanent injunction was denied.
The trial court's reasons for judgment state:
The evidence will indicate that French Market Corporation has been besieged with problems over the years as to the allocation of the various space outlets in their flea market located in the French Market in the French Quarter. The French Market Corporation decided to allocate their spaces according to a new revised tenure list. It is this tenure list and the way it was compiled that the plaintiffs have complained about and sought these injunctions. The Court understands why the suits were brought but is of the opinion that the preliminary and permanent injunction should and is hereby denied to the plaintiffs. The Court is of the opinion that the French Market Corporation did not violate any of the due processes or the taking of any of the properties of the plaintiffs herein. The Court is of the opinion that it should not substitute its judgment for the French Market Corporation. This is a very difficult job that they have about allocating spaces and it was decided to come up with a tenure list. The plaintiffs protest that it was not an accurate way in which it was done. I should say admittedly it was not a perfect system but a system that did deal in a fair way and therefore the Court is of the opinion it should not interfere with the administrative board. It feels that constitutional rights of the plaintiffs have not been denied.
Plaintiffs claim that the process by which the tenure list was compiled was arbitrary, discriminatory, deprived them of property rights, and violated substantive and procedural due process.
THE RECORD
French Market submitted numerous documents including the Bruno & Tervalon lists dated December 1990 and May 29, 1991 and the French Market computer generated list dated July 21, 1991.
The French Market also submitted the affidavit of Louis Costa, its executive director since 1980, who stated that the tenure system at the Flea Market dated back to the time of the Abba Foundation. Since May, 1979 French Market took over management of the Flea Market. The Flea Market was held on weekends until 1984, after which it became a seven day operation involving an increased number of vendors.
Costa said the Board's first written policy, on June 1, 1980, referred to "priority monthly space" which was the beginning of an assignment process. In an effort to resolve many problems, on June 1, 1988 a Board policy (documenting existing policies) went into effect. A public hearing was held at the City Council Chamber in March, 1989 and 95 percent of the vendors signed for a copy of the written policy. The Board advertised and hired a national consultant whose final report in May, 1990 recommended that market space be allocated on tenure. According to Costa, vendors contested the validity of dates on the tenure list, not the concept of a tenure list.
*1350 Costa stated that a committee of Board members was authorized to hire the firm of Bruno & Tervalon, C.P.A.'s, to prepare a tenure list based on rental receipts. It was decided that an absence of 30 days from January 1, 1980 to May 31, 1988 would cause loss of a vendor's tenure. From June 1, 1988 to December 31, 1989, 28 days was the basis for forfeiture. No staff or administrative personnel of French Market were allowed to participate in the process.
Costa's affidavit noted that the first list was submitted for vendors to review on October 19, 1990. It was posted and distributed in the Flea Market and placed in The Times-Picayune. The vendors were not pleased and the Board made changes. Sales tax receipts as well as rental receipts were allowed to establish tenure, and the 30 day absence rule prior to June 1, 1988 was eliminated because many vendors were not aware of that policy. A second list was submitted for review in December 1990 but was rejected due to the vendors' dissatisfaction.
According to Costa, in February 1991 the Board appointed a Tenure Review Committee to receive appeals by vendors. Vendors were notified that they had until March 11, 1991 to submit a written appeal as to their position. The Board adopted a tenure list and vendors were allowed to explain their claims to the Board. Costa conceded that Kenneth Ferdinand, the Market's director, gave him information about the incorrect placement of vendors above Anderson on the tenure list; however, Costa and Ferdinand had no input in formulating the list.
French Market also submitted an August 16, 1991 letter to Costa by Waldo Moret, a CPA with Bruno & Tervalon. According to Moret, prior to June 1, 1988 rental receipts were used to determine if a vendor was absent for 30 days. After June 1, 1988 the basis was 28 days. Moret's firm prepared a tenure list which was issued in October, 1990. Over 400 vendors responded before a November 15, 1990 list was made and vendors were given fifteen days to respond.
According to Moret's letter, the Board established a review committee to hear appeals in March 1991. Thirty vendors (out of 450) appealed. The firm's job was to compile a list based on rental receipts in the possession of French Market Corporation. Later, sales tax receipts were also considered. After the first tenure list there were problems and a second list was prepared. During the process about 400 to 500 vendors contacted Moret. Hong and Schermohmad appealed but did not have tax or rental receipts to prove their tenure. Anderson did not contact Moret because he did not have any receipts.
Mr. Ferdinand, French Market's market director since 1980, testified that there had been several criteria used to assign locations over the years, including quality of the merchandise, previous occupancy, sales tax receipts, and a first-come, first-serve basis. The 28 day rule for loss of seniority went into effect in 1988. Ferdinand testified that missing more than 28 days prior to 1988 had no effect. If a vendor was in the Flea Market in 1975 and returned in 1987 with continuous rental thereafter, the tenure date was 1975. There was an obvious inequity among the vendors.
Ferdinand testified that no member of the French Market staff had input in developing the tenure list by Bruno & Tervalon. Ferdinand said he notified Costa of problems and misinformation; however, Ferdinand was not allowed to provide information to the C.P.A. firm. He said that he knew of vendors whose position on the list was questionable and that the list was very unfair to some vendors.
According to the December 1990 list, the May 29, 1991 list and the July 12, 1991 list, Anderson's position was # 98, # 111, and # 117 respectively. Ferdinand said the first two lists were prepared by Bruno & Tervalon and the last list was a French Market computer printout. A letter regarding the appeal process was duplicated and set out in the French Market letter, but each vendor had to pick up the letter. Notice was never mailed to the vendors. Ferdinand stated that a vendor could appeal their rank but could not question another vendor's placement. Ferdinand said the appeal process was meaningless.
*1351 Ferdinand testified that French Market set aside a special handicraft area in the "A" section of the Market. He said Anderson, a handicraft vendor, had been assigned to that section. After the list was created Anderson was displaced from his stall. Ferdinand stated that he knew of at least five or six people ahead of Anderson whose placements were questionable. He testified that vendors who operated stalls continually, paid rent and sales taxes timely and abided by the rules, expected to rent their same stall as long as they abided by the rules (even though there was no written lease). A handicraft vendor with a high number could not be assigned to the main aisle or a protected area.
Robert Anderson, plaintiff, a vendor since 1988, testified that he had not missed more than 28 or 30 consecutive days since he started. His stall, # 101-A, was a good location. At first he took whatever stall was available. By January, 1989 he was assigned to # 101-A. The number he was assigned on the 1990 list placed him in an unprotected area. Anderson said he did not appeal because he was not permitted to contest the placement of other vendors. His tenure date was always correct; however, his place on the list changed because vendors were placed ahead of him.
Laquietta Parker, plaintiff, a vendor of handbags, claims her tenure began in 1987; however, she was listed in 1989 due to a 28 day lapse in June 1988 which she denied. Parker appealed but did not have documents to prove that there was no lapse. She stated the vendors did not save the receipts, were poor bookkeepers and had no prior notice that rental receipts or sales tax receipts would be required to prove tenure. She knew vendors who were improperly placed above her but the appeal process did not allow her to contest other assignments. Based on her 1987 date Parker would be assigned an uncovered stall. She stated that Ferdinand and Rosalind Garrison (French Market Corporation) knew that vendors were improperly placed ahead of her.
Douglas Hong, plaintiff, a seal skin vendor who claimed to have been a vendor since September 1983, was listed with tenure from 1987 and appealed. Hong testified that his wife developed leukemia and he had traveled to Virginia about one week out of every month. Hong stated that the French Market staff and other vendors knew he had been in the market since 1983.
Mehrunnisa Schermohmad, plaintiff, a vendor of costume jewelry allegedly since May 1987, was given a tenure date of October 1987. Her husband, who died, had tenure from May 1983, but she was denied her husband's date.
LAW AND ANALYSIS
The Louisiana Constitution requires that no person be deprived of life, liberty or property except by due process of law. La. Const. Art. I, Sec. 2. The U.S. Constitution's counterpart is in the Fourteenth Amendment. The initial requirement in any due process claim is that the claimant show the existence of some property or liberty interest which has been adversely affected by state action. Delta Bank & Trust Company v. Lassiter, 383 So. 2d 330 (La.1980).
A due process analysis involves three questions:
1. whether the interest is protected by due process;
2. if the interest is so protected, whether due process requires some kind of hearing; and
3. if a hearing is required, what kind of hearing is mandated.
Paillot v. Wooton, 559 So. 2d 758 (La.1990).
Any significant taking of property by the State is within the purview of the due process clause. Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). Even a temporary, nonfinal deprivation of property is sufficient. Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969). An ongoing business or the right to engage in a lawful calling is a property right entitled to constitutional protection. Banjavich v. Louisiana Licensing Board for Marine Divers, 237 La. 467, 111 So. 2d 505 (1959); Callais Cable *1352 Vision v. Houma Cable Vision, 451 So. 2d 6 (La.App. 1st Cir.1984), writ denied 452 So. 2d 1175 (La.1984).
State and federal due process require oral or written notice of evidence which supports the deprivation of an opportunity to present a contrary version. Paillot, 559 So.2d at 758. The right to notice and an opportunity to be heard must be granted in a meaningful way and at a meaningful time. Fuentes, 407 U.S. at 80, 92 S.Ct. at 1994.
The first issue is whether a vendor's right to a specific stall in the Flea Market is a property right. This Court has held that an association or corporation, such as the French Market Corporation handling a public or "quasi-public" market, is not permitted to eject a tenant without cause when rent is paid and no rule has been violated:
[I]n such quasi-public markets all must be treated equallyall must be given equal rightsand we cannot but feel that, to permit this Association to eject this tenant without assigning any cause, would give to it the right to deprive him [the vendor] of his property without due process of law....
New Prytania Market Association v. Beoubay, 185 So. 531, 536 (La.App. Orl.1939).
New Prytania Market found that the vendor's right to rent a stall was a property right sufficient to trigger due process considerations. Id. at 531. In the Flea Market the location of a stall is crucial to the quantity of sales. There is ample testimony from Ferdinand and the vendors to support the claim that assignment to section "A" has a monetary advantage. We conclude that denial of assignment to a particular stall, which has been a vendor's stall for years, is a property right with due process rights.
The next matter is whether the claimants were adversely affected. The threshold question as to the State's involvement was glossed over by the trial court and appellate briefs. The vendors' petitions said the French Market was a City agency or City-funded public benefit corporation. French Market's no cause of action exception alleged that it was a private nonprofit corporation.
According to the March 5, 1973 articles of incorporation, the Mayor of New Orleans organized The French Market Corporation as a nonprofit corporation in which no profits or distributions would be paid, distributed, or inure to the benefit of any shareholder, officer or member of the board of directors of the corporation under any circumstances. All "distributable net profits" derived from the operations of the corporation "shall be paid to the City of New Orleans, State of Louisiana, as a body public." The corporation was organized solely and exclusively to renovate and operate the French Market properties and similar ventures owned by the City of New Orleans. Article VII, Basis or Organization, provides:
There shall be but one share of no par value common stock issued by this Corporation which shall be owned by the Mayor of the City of New Orleans in his capacity as the Mayor of the City of New Orleans and his successors in office in their capacity as Mayor of the City of New Orleans.
Article X, Distribution of Assets on Dissolution, provided:
Should this Corporation ever be dissolved, or should its existence terminate, all the assets of the Corporation shall be turned over to the City of New Orleans.
We have carefully considered the market system of the City. The system contemplated public markets operated by the City and quasi-public markets, which were to be leased by the City to individuals or associations in accordance with rules and regulations adopted by the City. The City would give private operators of the markets authority to determine what tenants should occupy the stalls. Id. at 531.
The U.S. Supreme Court said it is impossible to formulate a test to determine whether the State has become significantly involved in private discrimination. Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967). The Supreme *1353 Court has held that the State is normally responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement that the choice must be deemed to be that of the State. West v. Atkins, 487 U.S. 42, 52, 108 S. Ct. 2250, 2257, 101 L. Ed. 2d 40, 53 at fn. 10 (1988).
The broad test of State responsibility involves its participation through any arrangement, management, funds or property. "Only by shifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S. Ct. 856, 860, 6 L. Ed. 2d 45 (1961).
Whether a private nonprofit corporation should be considered public was discussed by the U.S. Fifth Circuit in Hines v. CENLA Community Action Committee Inc., 474 F.2d 1052 (5th Cir.1973). The Fifth Circuit noted that a private nonprofit corporation did not become public merely because the charity aspect of the corporation was public, or that the whole community may be the proper object of the good works of the corporation. The government must have the sole right, as trustee of the public interest, to regulate, control and direct the corporation and its funds. The corporation's whole interest must be the exclusive property and domain of the government. Id. at 1052.
Although French Market was incorporated as a private, nonprofit corporation, the City's total involvement is clear. The City owned the French Market and leased it to the French Market Corporation. According to its articles of incorporation French Market's profits are payable to the City. Its only share of stock belongs to the Mayor and all corporate assets upon dissolution go to the City. The contacts between the French Market Corporation and the City are clear in the articles of incorporation and in administration of the corporate activities. We conclude that French Market is sufficiently tied to the City to trigger the due process safeguards under the Louisiana and U.S. constitutions.
Because there was State involvement and the vendors' assignment of stalls was a property interest cognizable under due process law, this Court must consider whether the vendors received proper notice and a meaningful opportunity to be heard prior to the deprivation of their property rights.
According to Ferdinand, a vendor could submit evidence to change the tenure date; however, only rent and tax receipts were accepted and testimony or other documentation was not allowed. Vendors had no notice years ago that receipts would be the basis to prove tenure. Ferdinand said notice of the vendors' right to an appeal was never mailed to each vendor. The vendors were allowed to question their own tenure dates, but could not contest priority given to other vendors. The appeal process did not give the vendors an opportunity to be heard and was meaningless.
A vendor's right to continue business in the stall continuously occupied (many years in some cases) was violated by promulgation of the tenure lists. Reliance on rental and tax receipts which few vendors could produce (no prior notice to save them) created an inaccurate preference. Costa and Ferdinand conceded that the tenure list had serious flaws.
A vendor must be given timely notice and a meaningful hearing and appeal process before eviction or re-assignment. Any attempt to formulate a tenure list must include input from personnel of the French Market Corporation who have verifiable information.
The judgment which denied plaintiffs' preliminary and permanent injunctions against the French Market Corporation is reversed. The permanent injunction is granted pending formulation of a proper tenure list in accordance with the above.
JUDGMENT REVERSED; INJUNCTION GRANTED.
NOTES
[1] Robert Anderson filed one suit and Laquietta Parker, Douglas Hong and Mehrunnisa Schermohmad filed other suits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4204279/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 18 2017
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
STEFAN JOHN DENSER, AKA Robert No. 14-73282
John Denser, AKA Sean,
Agency No. A017-206-586
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2017**
San Francisco, California
Before: KOZINSKI and FRIEDLAND, Circuit Judges, and ARTERTON, ***
District Judge.
Stefan Denser petitions for review of the Board of Immigration Appeals’
decision affirming the denial of his application for withholding of removal. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Janet Bond Arterton, Senior United States District
Judge for the District of Connecticut, sitting by designation.
have no jurisdiction to consider Denser’s factual argument that his conviction was
not for a “particularly serious” crime. See Pechenkov v. Holder, 705 F.3d 444,
448-49 (9th Cir. 2012). We do have jurisdiction to consider his legal argument—
that the BIA applied an incorrect legal test—and we consider that argument de
novo. See 8 U.S.C. § 1252(a)(2)(D); Brezilien v. Holder, 569 F.3d 403, 410-11
(9th Cir. 2009). But because we have already determined that the challenged test
is valid, Denser cannot succeed. See Miguel-Miguel v. Gonzales, 500 F.3d 941,
944-49 (9th Cir. 2007) (reviewing and upholding the test described in In re Y-L-,
A-G- & R-S-R-, 23 I&N Dec. 270 (2002), overruled on other grounds by Zheng v.
Ashcroft, 332 F.3d 1186, 1196 (9th Cir. 2003)); see also Rendon v. Mukasey, 520
F.3d 967, 973-76 (9th Cir. 2008) (upholding a removal order under application of
the test in In re Y-L-).
DISMISSED in part and DENIED in part.
2 | 01-03-2023 | 09-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1618197/ | 200 N.W.2d 513 (1972)
SPENCER SHOPPING CENTER, INC., Appellant,
v.
CITY OF SPENCER, Iowa, Appellee.
No. 55031.
Supreme Court of Iowa.
September 19, 1972.
*514 James, Greer, Nelson & Bertell, Spencer, and Peters, Campbell & Pearson, Council Bluffs, for appellant.
Ronald R. Barrick, Spencer, for appellee.
UHLENHOPP, Justice.
We are required here to decide whether a special assessment levied on a shopping center tract for a storm sewer was in accordance with the special benefits conferred.
Spencer Shopping Center, Inc. acquired 16.316 acres of land in Spencer, Iowa, which it improved with buildings having approximately 100,000 square feet of roof, a hard-surfaced parking area of 57,110 square yards, and a smaller grassed area. The soil where the Shopping Center was built was porous in nature.
A storm sewer district was established which consists of about 385 assessable acres, including the Shopping Center tract. The land in the area is relatively flat. Such slope as exists is to the southeast. The Shopping Center tract is near the highest elevation, in the northwest part of the district. The storm sewer runs along most of the west side of the Shopping Center tract, along the south side, and for 437 feet along the southeast side. The sewer cost $727,734, of which 35% was paid from Spencer's sanitary fund and 65% was levied by Spencer on the benefited land in the district.
The Shopping Center tract was assessed $32,050. The Center objected before the city council that the assessment is excessive. The objection was overruled. The Center then appealed to district court where, after trial, its objection was again overruled. Hence its present appeal to us. See Code, 1962, §§ 391.89, 391.90 (references are to the Code of 1962, the latest Code at the time of the events).
At trial in district court, two witnesses testified, one for Spencer and the other for the Shopping Center. Both were engineers. Spencer's engineer, a member of a *515 consulting engineering firm, had extensive experience, considerably more than the Shopping Center's engineer. In endeavoring to arrive at the benefit from the sewer to the Shopping Center tract, both witnesses used the same factors: improvement factor, frontage factor, elevation factor, and area factor. They held the same opinion as to the improvement factor but differed as to the other three factors. The opinion on benefits of Spencer's engineer was this:
Improvement factor $ 1,827.00
Frontage factor 2,300.00
Elevation factor 3,806.00
Area factor 41,374.00
_________
Total $49,307.00
Assessment at 65% $32,050.00
The opinion of the Shopping Center's engineer was this:
Improvement factor $ 1,827.00
Frontage factor 1,725.30
Elevation factor 3,082.58
Area factor 22,396.24
____________
Total $29,031.12
Assessment at 65% $18,870.00
We need not consider the improvement factor, as the evidence is simply against the Shopping Center's present contentions. Spencer's engineer developed the assessments, and he thought of course that the allocation of $1,827 is fair. The Shopping Center's engineer testified:
The next factor to be considered in arriving at a fair assessment is the "improvement benefits" which was assessed by the city's engineers. This amount originally was $1,827.00 [before reduction by 35% paid by Spencer], and I feel that from an engineering standpoint this figure is fair.
We are thus concerned with the other three factors.
The governing statute is § 391.48 of the Code, which provides in pertinent part:
When any city council levies any special assessment for any public improvement against any lot, such special assessment shall be in proportion to the special benefits conferred upon the property thereby and not in excess of such benefits.
See also § 391.42.
Assessments made by a city are presumed to be correct and the burden is on the objector to prove otherwise. Goodell v. City of Clinton, 193 N.W.2d 91 (Iowa). The ultimate question is whether the amount levied on a tract constitutes its fair proportion of the total cost. Rood v. City of Ames, 244 Iowa 1138, 60 N.W.2d 227.
I. Frontage Factor. Spencer's engineer testified that land fronting on a street containing a storm sewer receives more benefit than other land in the district, and that land on the side of the street where the sewer runs receives more benefit than land on the opposite side of the street because of ease and lower cost of connecting to the sewer. He thought, however, that the whole factor of frontage is not entitled to great consideration. Hence he allocated less than 10% of the overall cost to that factor. He assigned $3 per front-foot to abutting parcels on the "near side," and $1.50 per front-foot to parcels across the streetthe "far side." But he did not compute footage mechanically; he made equitable adjustments for the size and shape of parcels. In addition, if the sewer ran on both sides of a parcel, he assigned the average footage of the two sides so as not to double the factor. His adjustments were aimed at causing the factor to reflect the actual benefit received by a parcel by virtue of its abutting the sewer, and he applied his system consistently and not just to the Shopping Center tract.
A front-foot factor may be employed in ascertaining benefits from storm sewers, but it must not be applied arbitrarily. Fairness may require that the size and *516 shape of parcels and actual proximity to the sewer be considered within the frontage factor itself. Moreover, if factors other than frontage affect benefits, they must be given weight. Rood v. City of Ames, 244 Iowa 1138, 60 N.W.2d 227; Benshoof v. City of Iowa Falls, 175 Iowa 30, 156 N.W. 898; Iowa Pipe & Tile Co. v. Callanan, 125 Iowa 358, 101 N.W. 141; 48 Am. Jur. Special or Local Assessments § 67 at 622-624; 63 C.J.S. Municipal Corporations § 1430 at 1218-1223. Upon consideration of the evidence here, we conclude that the factor for frontage was applied in accordance with these principles and that the Shopping Center has no just ground for complaint as to this factor.
II. Elevation Factor. High land naturally receives less benefit from a storm sewer than low land. The highest land receives only its own water, but low land receives its own water and water from high land. Hence an elevation factor is a proper consideration in ascertaining benefits from a storm sewer.
The portion of benefits to be allocated on the basis of elevation alone varies with the terrain of districts. Steep slopes cast off more water than gently sloping land. Hence the allocation to the elevation factor must be greater in more sloping districts than in the flatter ones. The land in this district has varying elevations, but is relatively level.
Spencer's engineer developed a formula for the terrain in this district which allocated about 13% of the total cost of the sewer to the factor of elevation. Broken down, this resulted in an index figure of $204.98 per acre. The engineer then developed a multiplier for each parcel, based upon its particular elevation. The highest parcel had the lowest multiplier (zero) and the lowest parcel had the highest multiplier. The formula was applied to the Shopping Center tract and uniformly throughout the district, except for some railroad right-of-way. That right-of-way was built with its own drainage. Hence, as with the highest land, no actual burden could be demonstrated from elevation itselfthe right-of-way was built to cast off water rather than receive it. Of course, the railroad right-of-way was assessed for its own water on the basis of the area factor, which accounted for 73% of the total cost of the sewer.
We have examined the decisions the Shopping Center cites on this factor, but they are not analogous to this case. This is not a case involving low lands with marshes or hilly land. The allocation is one of judgment and the evidence does not overcome the presumption in favor of the assessment. We cannot sustain this objection of the Shopping Center. See Bell v. City of Burlington, 154 Iowa 607, 134 N.W. 1082; Diesing v. City of Marshalltown, 199 Iowa 1270, 203 N.W. 693.
III. Area Factor. Spencer gave the greatest consideration to the area of the parcelsabout 73% of the total costand the principal controversy centers around this factor. Area is a proper consideration in storm sewer assessments. Diesing v. City of Marshalltown, 199 Iowa 1270, 203 N.W. 693.
To ascertain the size of the sewer which is necessary for the district, the amount of run-off of water in the area had to be ascertained. In this connection a prime consideration is "coefficient of run-off" of each tract, determined by the pervious or impervious nature of the surface of the tract.
The coefficient of run-off of each tract was ascertained by considering the nature of the tract and applying regular engineering tables and the engineer's judgment from experience. Residential property was normally assigned a coefficient of .4 (40% run-off), other tracts which were more impervious were assigned .6 (60% run-off), *517 and the Shopping Center tract and some others were assigned .8 (80% run-off). In substance, the coefficient of a tract was multiplied by a uniform cost figure, and the result was multiplied by the number of acres in the particular tract. A large tract was assigned more of the cost than a small tract with the same coefficient of run-off; and a tract with a high coefficient of run-off was assigned more of the cost than a tract of the same size with a low coefficient.
The Shopping Center's basic complaint as to this factor is that its tract is in the higher part of the district and should not have been assessed such a large sum based on area. The complaint, if valid, must mean that one or more of the three components involved in the area factor is erroneous: size of tract, coefficient rate, or the figure 73% allocated to the overall area factor.
The size of the Center's tract is known and was applied in the computations. No error appears here. Nor has application of an incorrect size of another tract been shown which would cast an extra burden on the Center's tract.
The coefficient of run-off of .8 for the Shopping Center tract was abundantly proved, based on the impervious roof and parking lot of about 613,990 square feet. Indeed, the evidence discloses .9 or .95 might have been employed. Errors in coefficients applied to other tracts were not shown.
This leaves the figure 73% allocated to the overall area factor. Is that proportion excessive? The city's engineer and the city council thought not. We believe the presumption of validity attending the assessment is not overcome on this point.
As with the elevation factor, the proportion of total cost to be allocated to the area factor varies with terrain. When the land of a district slopes substantially so that upper land naturally sheds most of its water and lower land receives it, the proportion of total cost assigned to the elevation factor must be substantial and the proportion assigned to the area factor must be less than otherwise. Such was the situation in Rood v. City of Ames, 244 Iowa 1138, 60 N.W.2d 227. The converse, of course, is also true, and the converse is the situation which exists here. This district is quite flat. No evidence appears that any lower land had a water problem prior to construction of the sewer, or that marshes or ponds existedsuch as the ponding in the Rood case. The percentage to be assigned to the area factor is again a matter of judgment, and we cannot overturn the council's decision under the evidence here.
Moreover, this case presents a major consideration not found in the cases cited by the Shopping Centerthe large impervious area created by the Shopping Center itself, where porous soil previously existed. When the Center originally contemplated construction, it was confronted with the problem of the large increase in water it would cast on neighboring lands by changing the surface of its tract. The Center considered various private drainage systems, but ultimately the public storm sewer district was established and the Center's potential water problem was solved. The sewer had to be considerably larger because of the Center's change of its tract from porous ground to mostly impervious surface. We think this consideration lends support to the council's judgment. We cannot uphold the Center's attack on the area factor.
We have carefully considered the Shopping Center's other arguments, but they do not change the result. On the whole case, we conclude that the Shopping Center's tract was assessed its fair proportion of the cost of the improvement.
Affirmed.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618192/ | 685 S.W.2d 479 (1985)
James Dean REYNOLDS, Relator,
v.
Hon. Charles DICKENS, Respondent.
No. 2-84-239-CV.
Court of Appeals of Texas, Fort Worth.
February 27, 1985.
*480 Alley & Alley, Richard Alley, Fort Worth, for relator.
Tim Curry, Dist. Atty., and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, for respondent.
Before the court en banc.
OPINION
JOE SPURLOCK, II, Justice.
By petition for writ of mandamus, Relator James Dean Reynolds, seeks to have this Court vacate the orders of the trial court which refused to grant all of Relator's motions for discovery in a criminal case. Relator is under indictment for Aggravated Sexual Assault and it is shown that the State intends to use in evidence upon his trial a videotaped interview with the alleged child victim under the purview of TEX.CODE CRIM.PROC.ANN. art. 38.071 (Vernon Supp.1984). Our previous opinion of December 20th, 1984 is withdrawn.
In his pre-trial motion, Relator requested access, inspection and copying of such videotape in the following three particulars:
1. That he be permitted, at his own expense, to make a copy of the videotape, or;
2. That Relator's expert witness, a psychologist, be permitted to view the videotape along with defense counsel, or;
3. That the expert witness be permitted to view the tape simultaneously with the jury view and thereafter be excused from the witness rule so that he could testify.
All of the above requests were denied. However, the court was willing to order that the relator's attorney, alone, be permitted to view the tape with a prosecutor. This original proceeding was then filed in this Court.
The important facts occurring below need to be set out in order to understand the need for clarification in this new area of discovery. On November 2, 1984, Steve Laird and Richard Alley, counsel for relator, and Scott Wisch, Assistant District Attorney for Tarrant County, appeared at a pretrial hearing at which the following exchange took place:
"THE COURT: I believe the next motion in this file is the Defendant's Motion to Produce.
"MR. LAIRD: Yes, Your Honor. This has to do with the videotape itself that was made by the direction of the Texas Department of Human Resources. This videotape is in possession of the District Attorney's Office, and we do not feel that it's privileged in any way. We were given an opportunity I say, we. I was given an opportunity right after I was hired, to view that several months ago. I have since requested another opportunity to view the videotape which has been denied. I have asked if a potential witness in this case. Dr. Swen Helge, a child psychologist could view the videotape. That also has been denied. In order to properly prepare this case, we need a copy of the videotape.
"The District Attorney's Office has a copy and they have access to it 24 hours a day, and if they want to come up here and *481 view it sixteen times a day, they are able to, and for us to view it one time before trial and maybe two over the course of several months, and not allow Dr. Helge to view it since I have been retained on this case, is going to deny the Defendant due process, and it's going to prevent us from adequately preparing this case.
"THE COURT: Well, you are getting back to Dr. Helge again, and you haven't given me any authority or any reason why an independent psychiatrist should have any access to a piece of the State's evidence.
"MR. LAIRD: Your Honor, I only pointed that out as a coincidental request. The main request which I have made heretofore and which I am making today, is to allow access to the videotape by the Defense attorneys.
"THE COURT: Well, I have already ordered that. Do you want a time?
"MR. LAIRD: Well, Your Honor, if I understand the Court correctly, you have allowed us one opportunity next week, the week before trial, to view it. We are not going to be in a position to properly prepare for the case unless we are able to view it on more than one occasion. We may need to view it several times, because as the Court is well aware, there might be things that are missed upon first viewing that might be picked up on the second or third viewing.
"That is the entire case that the District Attorney's Office is alleging against the Defendant, and they have got possession of the tape. They can view it 25 times a day if they want to; run it in slow motion, back and forward, backwards, and we are not asking for anything more than what the District Attorney's Office has access to. We are just asking to be put on equal footing.
"THE COURT: Are you prepared to pay for it?
"MR. LAIRD: Certainly.
"THE COURT: Do you have any law that would permit you to copy the tape?
"MR. LAIRD: This is a relatively new statute, as the Court is well aware, and the cases in this area are very limited, and I don't believe the Court has ever addressed this particular point. But as a matter of discovery under the Code of Criminal Procedure, there is nothing about this particular case that is privileged, and under 39.41 of the Code in order to allow due process for the Defendant, we are only asking for what we feel like we are legally entitled to to properly prepare this case.
"THE COURT: Well, the law provides another method. You can call the child as a witness. But I'm going to let you see it again. The State is going to set that up. Now, there have been other video type cases? This law is new, but how about these West Wind cases. Surely there is some law on that.
"MR. ALLEY: Your Honor, may I be heard?
"THE COURT: Yes
"MR. ALLEY: On West Wind, I don't believe there was any ruling as to whether or not they are discoverable and you can copy them. They were rulings as to whether or not they were admissible in Court. That's the situation that we find with this same statute. There are rulings as to their admissibility. There is not a ruling as to their discoverability. So, they would be as discoverable as anything else. They are not in the nature of a statement so much of the Defendant, but they are statements of conduct and they are going to be the crux of the case. There was a case by the Texas Supreme Court called Richardson vs. Green, 27 Texas Supreme Court Journal, on page 466.
"In that case, Dr. Helge and several other psychologists were permitted to review a videotape and were able to make an expert opinion as to whether or not abuse was present and other things also as to the subjectivity of the child in response to leading questions, all of which we believe will become an issue in this particular case and will aid him in making the professional opinion that he is going to be called upon to make as a witness.
*482 "THE COURT: Mr. Wisch?
"MR. WISCH: My response, Your Honor, is that the clear legislative intent of the statute is the videotape supplant the direct evidence testimony of the child victim, and the Defense never has the opportunity to have the State place its witnesses in its case in chief under oath and repeat its case, and repeat its case, and repeat its case. It's only required to provide the witness available if the Defense wishes to question the witness, and this being a tape used in lieu of testimony, the State would urge the same ruling apply as would apply to any witness who would be giving direct testimony under oath.
"They are entitled to have discovery as to what that witness would say under the circumstances, but that can be fully met by allowing them to view the tape.
"MR. ALLEY: Your Honor, our final response to that would be, number one, that we are not just entitled to know what they said, but we are entitled under this statute to actually see the videotape and to use it to prepare. I do not believe the statute was there to supplant testimony, because there is no requirement that the child be placed under oath when they are videotaped. We believe in this videotape the child was not placed under oath or explained what an oath was. Furthermore, although the statute provides that we can call the child as a witness, the Court is also aware that you cannot impeach your own witness once you call them. So, that puts us in a catch twenty-two; that if we do call her for the purpose of cross-examining her to attack her testimony, that that is allowed under the statute, but prohibited by another statute.
"THE COURT: Well, Mr. Alley, I think the Court is being very liberal in permitting you to view the tape since the attorney has already seen it once; but to view it again. You are not telling me that you have a right to a witness' statement before they get on the witness stand, are you?
"MR. ALLEY: No, Your Honor, We are not.
"THE COURT: So, it's about the same thing, but I'm going to let you view it because this is new law. There are only a couple of cases on it here, but I'm not going to permit you to copy it or, unless you can show me some law that affects a criminal case, I'm not going to let your psychiatrist look at it. That's the ruling of the Court.
"MR. ALLEY: Your Honor, my one further question is this: Since he is going to be an expert witness, would that exempt him from the Rule so that he could view it when the jury views it?
"THE COURT: Well, no, sir. It would not exempt him from the Rule.
"MR. LAIRD: One final point on this that I would like to make on this, is that we were looking at this in terms of discovery and not preadmissibility questions; simply discovery under the Code of Criminal Procedure, and felt that it was not distinguishable from the other items that we feel are discoverable in this matter.
"THE COURT: Mr. Laird, if I was to take what the law really is, you probably couldn't see it at all. As I said, I think the Court is being rather liberal in letting you view it again, because there is no provision for you to view the tape to begin with under the law.
"MR. LAIRD: Do you wish us to contact the District Attorney's Office next week to set up a convenient time?
"THE COURT: You all can work it out.
"MR. WISCH: Other than settings involving our activities on Tuesday Wednesday afternoon?
"THE COURT: All right. I would like to view it Monday afternoon myself."
Relator urges that art. 38.071 provides for such viewing by an expert witness, member of the "defense team", by its language which in pertinent part states:
(7) the defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence.
*483 Relator argues that the psychologist employed by him to assist in his defense is his agent and is included within the definition of "attorney". In the case of Ballew v. State, 640 S.W.2d 237 (Tex.Crim. App.1980), the Court of Criminal Appeals decided a question of first impression in regard to the State's right to discovery and utilization of reports, notes and testimony of a defendant's psychiatrist witness as against the claim of attorney-client privilege. In holding that the attorney-client privilege extends to a defendant's psychiatrist's testimony, notes and reports, the Court observed that:
Given the complexities of our modern society, lawyers often cannot represent their clients effectively without nonlegal assistance. As a result, it has become generally accepted that the scope of the attorney-client privilege encompasses agents whose services are required by the attorney in order to properly prepare his client's case. (Citations omitted.)
Id. at 239. The Court further noted that numerous sister states have so extended the attorney-client privilege. Id. at 240. We note that the attorney-client privilege has been extended to a "pre-hypnotic" interview with a defendant in a criminal case. See Burnett v. State, 642 S.W.2d 765, 769 (Tex.Crim.App.1983). Under the reasoning of Ballew and Burnett, above, and the cases cited therein, we hold that the privilege extended to a defendant or his attorney to view videotapes produced under the statute in question extends to an expert employed by the accused to assist in his defense.
Relator additionally contends, in support of his asserted discovery rights, that the right of inspection, copying or photographing of evidence, not privileged, in the possession of the State is afforded by the terms of TEX.CODE CRIM.PROC.ANN. art. 39.14 (Vernon 1983), which provides:
Upon motion of the defendant showing good cause therefore and upon notice to the other parties, the court in which an action is pending may order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.
Recently the Court of Criminal Appeals had occasion to analyze the above discovery statute with regard to tape recording of a statement, made by an accused in conversation with an acquaintance who was cooperating with police by secretly wearing a tape recorder. In that case the Court wrote:
Tape recordings of a statement by the accused are "objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action."
Quinones v. State, 592 S.W.2d 933, 939 (Tex.Crim.App.), cert. denied, 449 U.S. 893, 101 S. Ct. 256, 66 L. Ed. 2d 121 (1980). We find no reason to distinguish between a surreptitiously recorded statement of an accused and the videotape of an interview with a child victim for the purpose of classifying the latter as discoverable. Accordingly, we hold that a videotape interview *484 with the alleged child witness in the case at bar is an object or tangible thing within the purview of art. 39.14, and as such, is subject to being copied for good cause shown.
The State has urged that Relator cannot complain that his attorney's and his expert witness were denied access to the videotape because both of them had in fact viewed it. The record discloses that one of the attorneys in the employ of Relator had viewed the videotape over six months prior to the filing of the motion for discovery and other attorneys had viewed the tape more recently. At the earlier time, the psychologist who is now assisting in the defense viewed the videotape. That portion of the record is developed in a statement of facts of a hearing had in the trial court 10 days after the order complained of here. Facts adduced at that hearing were not before the court when it denied Relators pre-trial discovery motions but will be considered by us, as the court has not yet changed its ruling.
The sole question before us is whether in the light of our holdings regarding the proper interpretation of articles 39.14 and 38.071, the extraordinary relief of mandamus is made necessary under the facts of this case.
It has been held that mandamus to compel a court to vacate or expunge a void order is a proper vehicle for attacking discovery orders. Zenith Radio Corporation v. Hon. Harley Clark, Judge, 665 S.W.2d 804, 806 (Tex.App. Austin 1983, no writ). Citing State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272 (1939); and Norvel & Sutton, The Original Writ of Mandamus in the Supreme Court of Texas, 1 St. Mary's L.J. 177, 181 (1969). Further "[a]n order is deemed void when rendered by a court having no jurisdiction or authority, when the order is violative of some constitutional right of a party, or is rendered as a result of an abuse of discretion by a judicial officer." Zenith Radio Corporation, 665 S.W.2d at 806. Mandamus will issue to correct a clear abuse of discretion by a trial court in a discovery proceeding and this is so, even when the district court's order denies discovery rather than permits it. Barker v. Dunham, 551 S.W.2d 41, 42 (Tex.1977); Allen v. Humphreys, 559 S.W.2d 798 (Tex.1977).
The most recent expression of our Supreme Court regarding mandamus in discovery proceedings are found in Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984). There it was restated that mandamus will not issue unless a clear abuse of discretion is shown and that appellate courts will not intervene to control incidental trial court rulings when there is an adequate remedy by appeal. Id. at 572. In Jampole the Supreme Court acknowledged that the issue of whether the parties seeking mandamus had adequate remedies by appeal was not specifically addressed in the cases of Barker v. Dunham or Allen v. Humphreys, but declined to overrule those cases. Id. at 576. The Court observed further, in discussing the availability of appeal as an adequate remedy, that:
Moreover, requiring a party to try his lawsuit, debilitated by the denial of proper discovery only to have that lawsuit rendered a certain nullity on appeal, falls well short of a remedy by appeal that is "equally convenient, beneficial, and effective as mandamus." (Citations omitted.)
Id. at 576. Such conclusion in a civil case it seems to us, would be even more sound in a criminal case. It makes little sense to argue that a new trial might be granted if an accused's right to a fair trial is impaired when the potential for error could be corrected summarily by granting a simple request for a copy of the tape.
In the case at bar, the State suggests that a good reason "for not letting mandamus substitute for an appeal, especially when pre-trial rulings are the issue, is that later rulings during the trial may moot the mandamus." Our reply to such suggestion is the same as that of the Supreme Court to a similar contention in Jampole, namely:
Moreover, the trial court's willingness to reconsider does not alter the finality of its ruling. Litigants can always make new arguments that may change the trial *485 court's mind. This does not, however, preclude complaining of the action already taken. It is the court's order that counts, not the stated reasons or oral qualifications. (Citations omitted.)
Id. at 574. We therefore conclude that if there is a clear abuse of discretion in the instant order, Relator has no adequate remedy.
We now consider whether the trial judge clearly abused his discretion by denying the requested discovery. The ultimate purpose of discovery is to seek truth, so that litigation may be decided by what the facts reveal, not by what facts are concealed. See Jampole, 673 S.W.2d at 573. Here, the State's reason for opposing the Relators right to copy the videotape was articulated by the prosecutor at the November 2nd pretrial hearing when he stated:
My response, Your Honor, is that the clear legislative intent of the statute is the videotape supplant the direct evidence testimony of the child victim, and the Defense never has the opportunity to have the State place its witnesses in its case in chief under oath and repeat its case, and repeat its case, and repeat its case. It's only required to provide the witness available if the Defense wishes to question the witness, and this being a tape used in lieu of testimony, the State would urge the same ruling as would apply to any witness who would be giving direct testimony under oath.
They are entitled to have discovery as to what that witness would say under the circumstances, but that can be fully met by allowing them to view the tape.
This view adopted by the State overlooks the fact that article 38.071 permits an unsworn videotape interview of the child to be introduced as direct evidence.
Article 38.071 clearly requires that the interview be conducted by some person or persons other than an attorney for either party, that every voice on the recording is identified and that any statement elicited is not made in response to questioning calculated to lead the child to make a particular statement. We liken a visual-audible recording of such an interview to videotaped depositions of witnesses in civil cases. An additional safeguard in a civil case is that the deposition witness is sworn and faces possible penalties for perjury. No such safeguard is afforded the accused in the present videotape situation. Although, in each instance, the recordings of testimony given is admissible, that is not to say that the electronic reproduction of the event is admissible in toto, without the opportunity for objection as to any particular question or answer upon any of the time honored reasons, Such as hearsay or leading and suggestive questions.
Just as is the case with videotaped depositions, the party against whom the recorded evidence is to be used ought to be in a position where he can lodge appropriate objections in a timely manner so as to allow for the deletion of the offending matter from the recording prior to the exhibition of the particular matter to the jury. The deprivation of reasonable opportunity for the Relator in this case to copy or review and evaluate the proposed videotape evidence with a view to objecting to any impropriety he might perceive, in our view is a denial of a substantial right. The interest of justice mandates that an accused have the same right to discover in a criminal case at least as much evidence as a person facing only a civil claim, and certainly not less.
In an instance where there is found to be an objectionable portion of the videotape, it seems far more appropriate that such fact be discovered, brought to the attention of the court and remedied if possible by proper, court ordered editing in preliminary proceedings rather than during trial, where an expungement of the offending material is likely to be cumbersome and frought with confusion and delay. The trial judge himself remarked, in the record, that he wished to view the videotape prior to trial.
We conclude that the order of the trial judge herein constitutes an abuse of his discretion. However, we are not to be understood as finding his action to be arbitrary, *486 capricious or consciously indifferent to Relator's rights, especially in the light of the absence of any guiding precedent. We find that the effect of his order is to deny a clear substantial right of the Relator which is crucial to his defense and provided for by law, and that the relief sought by Relator from this Court by this action in mandamus is proper and should be granted.
We expect that Judge Dickens will vacate his order denying Relator the right to secure a copy of the videotape at Relator's expense and denying Relator's psychologist expert witness to view such videotape, and we expect that he will enter an order consistent with this opinion. Should he fail to do so, the clerk of this Court is directed to issue the writ of mandamus.
All other relief requested is denied.
HUGHES, J., dissents.
WILLIAMS, C.J., retired and HUGHES, J., retired, sitting by assignment.
JORDAN, J., not sitting.
BURDOCK, J., recused.
HUGHES, Justice, dissenting.
I respectfully dissent from the majority opinion in this original mandamus proceeding.
The relator has been indicted for three separate aggravated sexual assaults upon children and his trial on one of the causes, Cause No. 0229533D, was set for trial for November 12, 1984. At a pretrial hearing before that trial date, the trial court denied relator's motion under TEX.CODE CRIM. PROC.ANN. art. 39.14 (Vernon 1979) & art. 38.071 (Vernon Supp.1985), to have a videotape interview of the three children involved viewed by relator's retained psychologist. The motion also sought a copy of the tapes to be prepared at his expense. On November 9, 1984, relator filed his original petition for a writ of mandamus in this court to compel the trial court to grant his motion for his psychologist to view the tapes and to have a tape copied for his use during trial. On that same date, November 9, 1984, leave to file that petition was granted by this court and the matter was heard by this Court on November 15, 1984.
On November 12, 1984, the date the case was set for trial, a second pretrial hearing during the pendency of the petition for writ of mandamus before this court, was held by the trial court, at which time the testimony of the psychologist, Arthur Swen Helge, as well as that of one of the prosecutors, was taken. A statement of facts of that November 12, 1984, pretrial hearing before the Hon. Charles Dickens, Judge of the 297th District Court, was filed in this court and is before us. That statement of facts on its face states that that hearing "was called for continuing Pre-Trial Motions, before the Honorable Charles Dickens, Judge of the 297th District Court."
The November 12, 1984 hearing, held after the petition for writ of mandamus was filed in this court, and before it was heard by this court, was a continuing pretrial hearing and, we must assume, was held for the purpose of again trying to persuade the trial judge to grant the motion for discovery concerning the videotaped interview of the three children. At this hearing, relator's counsel produced the psychologist, obviously for the purpose of convincing the trial judge of the necessity of his again viewing the videotape.
At this point, I deem it important to note that TEX.CODE CRIM.PROC.ANN. art. 38.071, sec. 2(a) (Vernon Supp.1985) provides that the recording of the oral statement of the child is admissible into evidence if (7) the defendant or his attorney is afforded an opportunity to view the recording before it is offered into evidence and (8) the child is available to testify.
It is admitted that on May 9, 1984, the psychologist, Arthur Swen Helge, viewed the videotapes of the interviews with all three children, along with the relator's then attorney, David Courtade, and one of the prosecutors. Helge also at that time made extensive notes as he viewed the tapes. At the pretrial hearing on November 12, 1984, although he was asked directly twice by one of the relator's current counsel, Richard *487 Alley, if it was necessary to see those tapes again in order to render an expert opinion, Helge, on both occasions, would only say that "it would be helpful." Sometime after May 9, 1984, and before the filing of the discovery motion in the trial court, Steven Laird, one of relator's present counsel, also viewed the tapes, and at sometime during the first week of November, prior to the November 12th hearing, all three attorneys representing relator, Steven Laird, Randy Turner and Richard Alley, also viewed the tape in Cause No. 0229533D, the cause that was set for trial on November 12, 1984. It is therefore clear that the trial court, in denying the motion for the psychologist to again view the tapes, or to have the tapes copied, had before it the fact that the psychologist had already once seen the tapes, and taken full notes, and that four different attorneys had also viewed the tapes, three of them shortly prior to the November 12th pretrial hearing. These are facts that relator and the majority opinion would have us ignore.
Under these facts the requirement of art. 38.071, sec. 2(a)(7) was certainly adequately met, as was sec. 2(a)(8) because the children in this case were available to testify. Moreover, sec. 2(b) provides that if the electronic recording of the oral statement of a child is admitted into evidence, either party may call the child to testify and the opposing party may cross-examine the child. How, in view of all this evidence on the pretrial hearings, we can say that the trial court abused its discretion, is difficult for me to comprehend.
The majority opinion seems to rely rather heavily on several Supreme Court cases in civil matters in support of its holding that mandamus is proper in this case. I submit that there is a considerable difference with respect to discovery procedures in civil and criminal cases. In fact, in civil cases, some of the various discovery procedures permitted are self-executing and do not require trial court ruling. In civil cases the courts have traditionally permitted broad and liberal discovery, while in criminal cases, discovery has traditionally been much more limited, and is sparingly granted, and only at the discretion of the trial court. See art. 39.14. It is emphasized that art. 39.14 says that upon motion of the defendant showing good cause, the court may order the State to produce certain items.
The issue before us, then, is simply whether or not the trial judge, under the facts of this case, abused his discretion in denying relator's motion for the psychologist to again view the tapes of the interviews with the three children and to permit copying of the tape.
There is no mandatory duty or ministerial act involved in this case. It is clearly a question of the trial court's discretion in a discovery proceeding. The Court of Criminal Appeals has repeatedly said that there is no general right of discovery under art. 39.14, and that such matters are committed to the trial court's discretion. Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App.1981); Quinones v. State, 592 S.W.2d 933, 940 (Tex.Crim.App.), cert. denied, 449 U.S. 893, 101 S. Ct. 256, 66 L. Ed. 2d 121 (1980).
In Quinones, 592 S.W.2d at 940-41, the court upheld an order of a trial court refusing to allow discovery of a tape recording of the defendant's and an accomplice's conversation on the ground that there was no abuse of discretion. The court said that art. 39.14 makes it clear that the decision of what is discoverable is the decision of the trial court and even where, as in Quinones, reasons for the ruling by the trial court were incorrect, the reasons behind the trial court's exercise of its discretion will not create reversible error if the decision itself, regardless of its purported basis, did not exceed the limits of the court's discretion. Id. at 940; accord United States v. Agurs, 427 U.S. 97, 108-10, 96 S. Ct. 2392, 2399-01, 49 L. Ed. 2d 342 (1976). The court in Quinones said that traditionally that court has declined to find reversible errors stemming from discovery motions where the defendant was not denied access to exculpatory or mitigating evidence which would have affected the outcome *488 of the trial in his favor. See Quinones, 592 S.W.2d at 941; see also Granviel v. State, 552 S.W.2d 107, 119 (Tex. Crim.App.1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 250 (1977); Love v. State, 533 S.W.2d 6, 9 (Tex.Crim.App. 1976).
Texas has long followed the rule which requires the trial court to permit discovery only if the evidence sought is material to the defense of the accused. See Stone v. State, 583 S.W.2d 410, 415 (Tex.Crim.App. 1979) and Frank v. State, 558 S.W.2d 12, 14 (Tex.Crim.App.1977). In the latter two cases, the Court of Criminal Appeals defined "materiality" under Texas law in due process terms, employed by the Supreme Court of the United States in Agurs, saying:
"[U]nless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor's constitutional duty to disclose" ... "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense." ... [i]n determining materiality, the omission must be "evaluated in the context of the entire record," and constitutional error is committed only "if the omitted evidence creates a reasonable doubt that did not otherwise exist." [Emphasis added.]
Stone v. State, 583 S.W.2d at 415 (in part quoting United States v. Agurs, 427 U.S. at 109-12, 96 S.Ct. at 2400-02).
In granting the writ of mandamus in this case, this court is opening up "Pandora's Box." This could encourage the filing of petitions for writs of mandamus in many cases where the trial court has either granted or denied a defense motion for discovery. Such a practice would often, as the filing for the writ in this case did, result in delays of criminal trials. I submit, respectfully, that the majority decision in this case is an abuse of the well established rule of law that a trial judge's ruling in criminal discovery matters will not be disturbed unless a clear abuse of discretion is shown.
I would deny the writ of mandamus in this case.
HILL and GRAY, JJ., join. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920127/ | 447 N.W.2d 519 (1989)
Victor J. WANG, Plaintiff and Appellant,
v.
Robert L. WANG, Defendant, Third Party Plaintiff and Appellant,
v.
ROSEBUD FEDERAL CREDIT UNION OF WINNER; Farmer's Cooperative Oil Association of Winner; Albert Schramm and Larry Meiners, Third Party Defendants and Appellees.
Nos. 16295, 16299.
Supreme Court of South Dakota.
Argued February 13, 1989.
Decided November 1, 1989.
*520 David L. Claggett, Spearfish, for appellant Victor Wang.
Bryce Flint of Jackley & Flint, Sturgis, for appellant Robert L. Wang.
Lonnie R. Braun of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for appellees Rosebud Federal Credit Union, Albert Schramm and Larry Meiners.
Donald E. Covey of Covey Law Office, Winner, for appellee Farmer's Co-op. Oil Ass'n of Winner.
GERKEN, Circuit Judge.
This is the third appeal arising out of the transactions that gave birth to Wang v.Wang, 393 N.W.2d 771 (S.D.1986) (Wang I) and Wang v. Wang, 440 N.W.2d 740 (S.D. 1989) (Wang II). Robert Wang (Robert) and Victor Wang (Victor) have separately appealed from the same summary judgment. We affirm.
On January 18, 1978, Victor executed a promissory note to the Rosebud Federal Credit Union (RFCU) due and payable on January 19, 1979. The note was secured by financing agreements on various items of Victor's property. At this time RFCU and its affiliate Farmer's Cooperative Oil Company (Co-op) of Winner, South Dakota, had a written agreement providing that Co-op would guarantee patrons' notes to RFCU to the extent that the proceeds were used for Co-op purchases. Albert Schramm (Schramm), an officer of both RFCU and Co-op, co-signed Victor's note without an indication that he did so in a representative capacity.
On January 18, 1979, Victor was unable to meet his obligation under the note and, upon demand by RFCU, Co-op paid $43,344.00 under the terms of the guaranty agreement. In July 1980 Robert became involved with the note and security agreement. Negotiations with the manager of RFCU, Larry Meiners (Meiners), culminated in an agreement to sell Robert the note and security agreements for $8,000.00. Schramm signed the assignment agreement on behalf of RFCU and Meiners signed as a witness. Shortly after this assignment Robert made demand upon Schramm, as co-maker, to pay the amounts then claimed due on the note.
*521 In August 1981 Robert brought suit against both Victor and Schramm to recover on the note by virtue of the assignment. The jury returned a verdict finding Victor liable on the note and absolving Schramm from liability. Robert appealed from the verdict for Schramm. In Wang I, supra, this Court determined that Schramm's signature on the note was "bare." Without any showing that he signed in a representative capacity Schramm could be held personally liable as a co-maker. On retrial judgment was entered against Schramm in the amount of $42,900.00.
While the appeal in Wang I was in process, Robert sold the collateral to himself for $100.00 on January 18, 1985. After this foreclosure sale, Robert, in September 1987, brought suit against Victor and Schramm to recover a deficiency judgment. The jury returned a verdict against Schramm in the amount of $42,900.00. Schramm's appeal from the verdict and judgment for Robert constitutes Wang II, supra. The substance of that decision was that Robert constructively (defacto) elected strict foreclosure under the facts of the case and by the following actions:
(1) Robert took and maintained exclusive control and possession of the collateral from the time he purchased the note in July 1980:
(2) Robert continuously held the collateral on his property and told Victor not to remove it and to stay away;
(3) It was not until over a year later, in August 1981, that Robert filed suit to collect on the promissory note; and
(4) Robert did not undertake the sale of the collateral until December 1984, some four and one-half years after taking possession.
Because Robert elected strict foreclosure he was barred from obtaining a deficiency judgment. Judgment in Robert's favor was reversed and the matter remanded with instructions to enter judgment in favor of Schramm.
In January 1986, between Robert's 1981 suit on the note and his 1987 suit for deficiency, Victor started an action against Robert alleging that Victor's signature on the 1978 promissory note was a forgery. Victor alleged that as a result of this forgery and the subsequent events referred to above, he suffered loss of property, income and reputation. In February 1986 Robert, by third-party complaint, sued RFCU, Co-op and Schramm alleging forgery on the promissory note and deceit in assignment of the note. Robert sought damages in tort and indemnity for all amounts adjudged due Victor from him. The third-party defendants moved for summary judgment seeking dismissal of both complaints. The trial court granted summary judgment against Victor on the basis that Victor had ratified the note and granted summary judgment against Robert on the basis that he had elected his remedy in contract and could not now proceed in tort. It is from these orders that Robert and Victor appeal.
In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. Groseth Intern., Inc. v. Tenneco,Inc., 410 N.W.2d 159 (S.D.1987). The evidence must be viewed most favorably to the non-moving party and reasonable doubts should be resolved against the moving party. Wilson v. Great Northern Railway Co., 83 S.D. 207, 157 N.W.2d 19 (1968). The non-moving party, however, must present specific facts which demonstrate a genuine, material issue for trial. Ruane v. Murray, 380 N.W.2d 362 (S.D. 1986). When no genuine issue of fact exists, summary judgment is looked upon with favor and is particularly adaptable to expose sham claims and defenses. Wilson, supra. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper. Ruple v. Weinaug, 328 N.W.2d 857 (S.D.1983).
We first address the trial court's granting summary judgment against Victor. The issue is a simple one. Did the *522 trial court err in granting summary judgment to the third-party defendants on the theory that Victor had ratified the promissory note in question?
The trial court's grant of summary judgment was based on Victor's signing the bottom of the note and acknowledging receipt of it, as well as failing to defend the contract action on the basis that it was a forgery and allowing the property to be repossessed and sold.
Victor claims that the trial court erred when it found that he ratified the forgery by signing the bottom of the note and acknowledging receipt of it. Victor contends that he did not have the intent to ratify or the full knowledge of the material facts required for ratification. Bank of Hoven v. Rausch, 382 N.W.2d 39 (S.D. 1986). He contends that he lacked these prerequisites since the dollar amount of the promissory note and the items of collateral to be listed on the security agreement were left blank.
Victor further contends that the trial court erred when it found that he ratified the note by failing to defend the contract action on the basis that it was a forgery, and by allowing the property to be repossessed and sold. Victor contends that since he did not learn the note was a forgery until February 1985, he could not be deemed to have ratified it before that time.
These contentions fail to focus on the factors necessary for ratification. The documents involved in this case fall within the purview of the Uniform Commercial Code. Wang I, supra. SDCL 57A-3-404, in pertinent part, provides: "Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it."An "unauthorized" signature is "one made without actual, implied or apparent authority and includes a forgery." SDCL 57A-1-201(43).
This court has defined ratification as follows:
Ratification is the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him[.] (emphasis added)
Bank of Hoven, supra, 382 N.W.2d at 41. The affirmance required to establish ratification may be either express or implied from conduct showing an election to treat an unauthorized act as authorized, or by conduct which can be explained only if there was such an election. Bank of Hoven,supra.
Victor's conduct in the present case provides more than a sufficient basis upon which the trial court could find that no material issue of fact existed as to whether Victor ratified the promissory note. The trial court's finding is supported by the following conduct:
(1) Victor saw the note and security agreement contained his purported signatures and all the information included on the document by July 3, 1980;
(2) Since 1981, Victor has been a party to litigation seeking to enforce his obligation on the note;
(3) Through two trials and one appeal, Victor has remained in default concerning his liability on the note, even though he has been represented by counsel at various times since 1981;
(4) Victor was notified of Robert's sale of the collateral in early 1985, and failed to attend or respond in any way;
(5) Victor testified, under oath, at the first trial on the note that he had signed the note he now claims is a forgery;
(6) Victor made no protest of his name being signed to the note in this case for at least five and one-half years.
This evidence is such that a reasonable person could only draw one conclusion from all the facts and inferences and dispose of the ratification issue as a matter of law. There can be no genuine issue of material fact since Victor's conduct showed an election to treat an unauthorized act as authorized. His conduct can be explained only if there was such an election. Bank of Hoven, supra. There is no reasonable *523 construction of Victor's conduct other than he affirmed the note.
In addition to the above conduct constituting ratification there exists conduct and case authority which provides a further basis to affirm the trial court.
This court has held that the failure of a party to disaffirm a contract over a period of time may, by itself, ripen into ratification. First Bank of Sinai v. Hyland, 399 N.W.2d 894 (S.D.1987). The actions and inactions of Victor were gross in comparison with the facts found sufficient for ratification in that case.
The second prong of SDCL 57A-3-404 provides for ratification by estoppel. In Bank of Hoven, supra, 382 N.W.2d at 41, this court adopted the following definition of "precluded from denying it" (SDCL 57A-3-404):
The words "or is precluded from denying it" are retained in subsection (1) to recognize the possibility of an estoppel against the person whose name is signed, as where he expressly or tacitly represents to an innocent purchaser that the signature is genuine; and to recognize negligence which precludes a denial of the signature.
Victor's admitted action of signing papers in blank and giving them to RFCU without follow up visits to verify proper completion fall within the realm of negligence and preclude a denial of the signature.
We next address the trial court's granting summary judgment against Robert. Again the issue can be simply stated. Did the trial court err in granting summary judgment to the third-party defendants on the theory that Robert elected his remedy in contract and is precluded from proceeding against these defendants in tort?
Robert in his third-party complaint alleged that RFCU, Co-op and Schramm in the July 3, 1980, assignment agreement committed acts of deceit upon him which fall within the purview of SDCL 20-10-2. Specifically, he alleged damage was caused him by these defendants selling him a forged note and by their failure to disclose to him the existence of a set off by reason of payments made on the note by Co-op.
The trial court's grant of summary judgment was based on Robert's actions in suing on the note and recovering judgments, foreclosing on the security agreements and selling the property.
Robert contends that the trial court erred in relying upon the "election of remedies" theory in granting summary judgment. His contention is that since RFCU and Co-op were not parties to, nor did they attempt to intervene in the earlier actions where Robert sued Victor and Schramm on the promissory note, the election of remedies theory is inapplicable. He further contends that this theory is inapplicable to Schramm, as well, since Schramm has not litigated his involvement in execution of the assignment agreement. In sum, he contends that the previous contract action on the note has no relevance to the present matter.
In reviewing the trial court's order granting summary judgment, we premise our decision on the principle that affirmance of such a judgment is proper if there exists any basis which would support the trial court's ruling. Ruple, supra.
Although we do not agree with Robert's reasoning, we do agree that error was committed by the trial court in relying upon the election of remedies doctrine. This court set forth some basic rules concerning the doctrine of "election of remedies" in Schelske v. Smith, 55 S.D. 502, 503-504, 226 N.W. 734 (1929), wherein it was stated:
[s]eparate actions against different persons cannot be maintained, where the maintenance of one necessitates the allegation of a fact or the assumption of a position inconsistent with the maintenance of the other, and, having elected to proceed on one assumption, he cannot proceed on the other, even though against a different defendant.
The Schelske court further pointed out, however, that even in cases of inconsistent remedies, relief may be possible in some cases. Such cases would involve situations where allowance of only one of the inconsistent *524 actions would result in only a partial remedy.
On the other hand, distinct and independent grounds of action arising from the same transaction which may be concurrently or consecutively pursued to satisfaction are not subject to the doctrine of election of remedies. See 25 Am.Jur.2d Election of Remedies, § 13 (1966). This rule concerning consistent remedies was well stated in Bankers Trust Co. v. Pacific Employers Insurance Co., 282 F.2d 106 (9th Cir.1960), as follows:
However, this doctrine of election of remedies applies only to choosing between different remedies allowed by law on the same state of facts, where the party has but one cause of action, one right infringed, one wrong to be redressed. `The doctrine does not require election between distinct causes of action arising out of separate and distinct facts.' It is the law that one who has been fraudulently induced into a contract may elect to stand by that contract and sue for damages for the fraud.... The same basic transaction gives rise to distinct and independent causes of action which may be consecutively pursued to satisfaction. `Thus an action on contract induced by fraud is not inconsistent with an action for damages for the deceit; * * *.' `A right of action on a contract and for fraud in inducing plaintiff to enter into such a contract may exist at the same time, and a recovery on one of the causes will not bar a subsequent action on the other.' (citations omitted).
282 F.2d at 110.
Robert's suit on the contract and his third-party complaint action for tort damages alleging forgery and deceit are two different causes of action with separate and consistent remedies. Robert, by bringing suit in contract did not make an election of remedies that would bar this action for deceit.
Even if these remedies could be considered inconsistent, as Schelske points out, relief is not always precluded. Suppose hypothetically, that Robert had not undertaken any acts to foreclose, but had started an action to recover the entire balance on the note and was not precluded from recovering, except to the extent of the set offs. Assuming then, hypothetically, that these remedies are inconsistent, we would then have a case, such as described in Schelske, where Robert would be entitled to proceed in contract against Schramm and in tort for deceit against RFCU because his action in contract would result in only a partial remedy. The purpose of this doctrine is not to prevent recourse to any remedy, but to prevent double redress for a simple wrong. 25 Am.Jur.2d, Election of Remedies § 1 (1966).
Although the trial court erred in granting summary judgment against Robert based on the doctrine of election of remedies, there exists other bases to support the trial court's ruling.
Robert's claim against the third-party defendants for their selling him a forged note is rendered moot because of Victor's ratification of that note. Summary judgment against Robert on his claim of damages for deceit for failure to disclose the existence of a set off by reason of payments made on the note by Co-op is fully supportable because Robert cannot show any damage arising from any misrepresentation. In Wang II, we determined that Robert was barred from seeking a deficiency judgment by reason of his acts of strict foreclosure on the property covered by the security agreements. Had there not been any sums set off, such sums would merely have been included in the amount of the deficiency which Robert was barred from claiming anyway. Robert was afforded his full remedy for all wrongs committed against him. Affirmance of the trial court's grant of summary judgment against Robert is proper upon these bases.
The orders granting summary judgment against Victor and Robert are affirmed.
WUEST, C.J., and MORGAN, SABERS and MILLER, JJ., concur.
GERKEN, Circuit Judge, for HENDERSON, J., disqualified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588093/ | 205 P.3d 890 (2009)
227 Or. App. 289
HOFFMAN
v.
HALL.
Court of Appeals of Oregon.
March 25, 2009.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2697891/ | [Cite as State v. Blevins, 2011-Ohio-3367.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, : Case No. 10CA3353
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
ALONZO BLEVINS, :
: RELEASED 04/18/11
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Gene Meadows, Portsmouth, Ohio, for appellant.
Mark E. Kuhn, SCIOTO COUNTY PROSECUTOR, and Julie Cooke Hutchinson,
SCIOTO COUNTY ASSISTANT PROSECUTOR, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, P.J.
{¶1} Alonzo Blevins was one of four back seat passengers in a vehicle stopped
by law enforcement for a cracked windshield. The driver, front seat passenger, and
Blevins had outstanding warrants. Upon their arrest, a search of the vehicle resulted in
the discovery of a trace amount of methamphetamine and numerous materials that
could be used to make the drug. Based upon this incident, a jury found Blevins guilty of
possession of chemicals for the manufacture of methamphetamine and possession of
methamphetamine.
{¶2} In this appeal, Blevins contends that his conviction for possession of
methamphetamine was against the manifest weight of the evidence. We agree. Law
enforcement only found a trace amount of the drug on a piece of a plastic baggie
located on the front passenger seat after that passenger exited the vehicle. No
Scioto App. No. 10CA3353 2
evidence supports a finding that Blevins would have been conscious of this object from
his position in the vehicle, let alone that it contained a trace amount of a controlled
substance. Moreover, aside from Blevins’ proximity to the plastic, there is no evidence
that he could exercise dominion or control over it, i.e. that he had constructive
possession of it. Accordingly, we reverse Blevins’ possession of methamphetamine
conviction.
{¶3} In addition, Blevins contends that his conviction for the possession of
chemicals charge was against the manifest weight of the evidence. However, the State
presented evidence from which the jury could conclude that Blevins had constructive
possession of ether (in starting fluid), lithium (in batteries), and pseudoephedrine, i.e.
chemicals that may be used to manufacture methamphetamine, with the intent to
manufacture the drug. And because the jury could reasonably return a guilty verdict
based on the State’s version of the events, we cannot say that the jury clearly lost its
way and created a manifest miscarriage of justice. Thus, we reject that argument.
{¶4} Next, Blevins contends that trial counsel rendered ineffective assistance
by failing to make a Crim.R. 29(A) motion for acquittal on the possession of chemicals
charge, i.e. counsel failed to challenge the sufficiency of the evidence supporting the
conviction. However, the failure to raise a sufficiency argument at trial does not waive
that argument on appeal. Moreover, in concluding that Blevins’ conviction for this
charge was not against the manifest weight of the evidence, we necessarily concluded
that sufficient evidence supported the conviction. Thus such a motion would have been
futile and Blevins cannot establish a deficient performance or prejudice.
{¶5} Finally, Blevins contends that the trial court erred by admitting unfairly
Scioto App. No. 10CA3353 3
prejudicial evidence. The court permitted an Ohio State Highway Patrol lieutenant to
testify that sometime in August 2009 (the month following the traffic stop) Blevins told
him that he was a “small time meth dealer user” while lodging a complaint about a
trooper’s behavior after a separate traffic stop. However, the court did not abuse its
discretion in concluding that the statement was probative of guilt as Blevins’ status as a
drug dealer and user supports the State’s theory that he was not merely an innocent
occupant of a vehicle laden with materials used to manufacture methamphetamine.
Moreover, we find that the probative value of this testimony was not substantially
outweighed by the danger of unfair prejudice. Therefore, we also reject this argument.
I. Facts
{¶6} The Scioto County grand jury indicted Blevins on: 1.) one count of
possession of chemicals for the manufacture of methamphetamine, in violation of R.C.
2925.041(A), a third-degree felony; and 2.) one count of possession of
methamphetamine, in violation of R.C. 2925.11(A) and (C)(1)(a), a fifth-degree felony.
After Blevins pleaded not guilty to the charges, the matter proceeded to a jury trial,
which produced the following evidence.
{¶7} On July 3, 2009 at approximately 9:00 p.m., Deputy David Fairchild and
Detective Matt Spencer with the Scioto County Sheriff’s Office and Trooper Nick Lewis
with the Ohio State Highway Patrol were patrolling U.S. 23 in Scioto County when they
observed a vehicle with a cracked windshield. Fairchild initiated a traffic stop, and
Spencer and Lewis assisted him. The vehicle contained six occupants. The driver,
Jason Craft, and the front seat passenger, Jillian Newman, had outstanding warrants for
their arrest. Craft’s father owned the vehicle but was not present. The following people
Scioto App. No. 10CA3353 4
were seated in the back seat from left (i.e. behind the driver’s seat) to right: Blevins,
Beth Vest, Anthony Blevins (“Anthony”), and Billy Stapleton. Blevins also had an
outstanding warrant out for his arrest. Law enforcement arrested Craft, Newman, and
Blevins based on the warrants.
{¶8} Law enforcement found the following items in the passenger compartment
of the vehicle: one can of Preston starting fluid, four cans of Johnson starting fluid,
crushed pseudoephedrine, uncrushed tablets containing pseudoephedrine, two four-
packs of lithium batteries, two rolls of black electrical tape, one siphon pump, three
copper fittings, and an empty box of CVS cold medicine (pseudoephedrine). They
found the uncrushed tablets between the driver’s seat and center console and the
crushed pseudoephedrine “very well hidden” stuffed under the center console. They
found the tape, batteries, and one can of Johnson starting fluid in a Walmart bag on the
floor behind the driver’s seat. In addition, they found the empty CVS box on the
“passenger rear floorboard” and “underneath some stuff.” The copper fittings were on
the floor behind the driver’s seat. The siphon pump was found in a Big Lots bag,
presumably in the back seat of the vehicle.
{¶9} Spencer and Detective Adam Giles of the Scioto County Sheriff’s Office
explained the role the items found in the vehicle play in the production of
methamphetamine. Giles testified that pseudoephedrine is a “precursor chemical”
found in common cold medicines, and it or ephedrine is needed to produce
methamphetamine. Giles also testified that a solvent, like starting fluid is added to the
crushed up cold pills to draw out the pseudoephedrine and lithium or sodium metal is
also added to the mixture later. Spencer testified that the ether in starting fluid is a key
Scioto App. No. 10CA3353 5
ingredient in the manufacturing process. In addition, Giles testified that a siphon pump
could be used in two steps of the manufacturing process – to either help extract the
pseudoephedrine or to create a gas generator needed later in the process. Spencer
testified that electrical tape is used to hold the siphon hose in place and that copper
fittings can be used to seal off anhydrous tanks used in the manufacturing process.
{¶10} A CVS receipt in the vehicle showed a purchase of a CVS brand
decongestant, i.e. a pseudoephedrine purchase, at 7:49 p.m. that day. CVS records
revealed that Stapleton made that purchase. And Spencer testified that through his
investigation, he learned that Anthony was with Stapleton at the time. Walmart records
revealed that Craft, Stapleton, and Newman purchased drugs containing
pseudoephedrine that day. Newman made her purchase at 7:54 p.m., Craft made his
purchase at 7:57 p.m., and Stapleton made his purchase at 8:10 p.m. A Walmart
receipt found in the vehicle revealed a cash purchase of various items at 8:15 p.m.,
including one can of starting fluid, batteries, two rolls of tape, and one container of tic
tacs. According to Spencer, Blevins and Vest (his girlfriend) were depicted on Walmart
surveillance footage of this transaction, and Vest appeared to pay for the items. Lisa
Payton, a Walmart Asset Protection Coordinator, testified that the Universal Product
Code for the starting fluid matched the code on the can of Preston starting fluid found in
the vehicle. Spencer also testified that the Big Lots receipt from the vehicle indicated
someone purchased a siphon pump at 8:47 p.m. To Spencer’s knowledge Blevins did
not make that purchase or go into Big Lots.
{¶11} Blevins had tic tacs and two syringes on his person when law enforcement
arrested him. One syringe was still in a package, but the other had been opened and
Scioto App. No. 10CA3353 6
loaded with a substance. The Sheriff’s Office did not test the substance. Instead, it
destroyed the syringes according to an office policy.
{¶12} Spencer and Lewis testified that when they instructed Newman to exit the
vehicle, she kept her legs together as she did so. Lewis testified that her actions made
him believe she was trying to conceal something between her legs, and after she stood,
he saw the corner of a clear plastic baggie on the seat, i.e. Newman had been sitting on
it. Lewis testified that people who possess drugs commonly put their stash into a
baggie, filter the drugs into one corner of the bag, cut that corner off, and twist the open
part of the corner to secure the drugs inside. He testified that this particular “corner
piece” contained white residue. Michelle Anderson, a forensic scientist for the Ohio
Bureau of Criminal Identification and Investigations identified the residue as a trace
amount of methamphetamine.
{¶13} Lieutenant Edward Crispen, the post commander at the Ohio State
Highway Patrol’s Portsmouth post testified that sometime in August 2009, Blevins came
to the post to complain about Lewis’ conduct during a different traffic stop. Blevins was
angry and complained that Lewis violated his constitutional rights on multiple occasions.
According to Crispen, Blevins felt he was “getting stopped more than he should have
been stopped.” In addition, Blevins told Crispen that he was “just a small time meth
dealer user,” and Lewis should focus on more serious criminals. Crispen advised
Blevins that what he was doing was still illegal. Blevins said, “I realize that but it[’]s still
small time stuff.”
{¶14} The jury found Blevins guilty on both counts of the indictment. After
sentencing, Blevins filed this appeal.
Scioto App. No. 10CA3353 7
II. Assignments of Error
{¶15} Blevins assigns three errors for our review:
The Defendant-Appellant was denied effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments of the United States
Constitution as a result of Trial Counsel’s failure to move for a Criminal
Rule 29 motion of acquittal at the close of the Plaintiff-Appellee’s case in
chief.
The trial court abused its discretion and erred to the prejudice of the
Defendant-Appellant by allowing prejudicial testimony in violation of
Evid.R. 403(A).
The verdict and conviction is against the manifest weight of the evidence
presented at trial.
For ease of analysis, we will address these assignments of error out of order.
III. Manifest Weight of the Evidence
{¶16} In his third assignment of error, Blevins contends that his convictions were
against the manifest weight of the evidence. “In determining whether a criminal
conviction is against the manifest weight of the evidence, an appellate court must
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine whether, in resolving conflicts in the evidence, the
trier of fact clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed.” State v. Brown, Athens App. No. 09CA3, 2009-Ohio-
5390, at ¶24, citing State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541. A reviewing court “may not reverse a conviction when there is substantial
evidence upon which the trial court could reasonably conclude that all elements of the
offense have been proven beyond a reasonable doubt.” State v. Johnson (1991), 58
Ohio St. 3d 40, 42, 567 N.E.2d 266, citing State v. Eskridge (1988), 38 Ohio St. 3d 56,
526 N.E.2d 304, at paragraph two of the syllabus.
Scioto App. No. 10CA3353 8
{¶17} Even in acting as a thirteenth juror we must still remember that the weight
to be given evidence and the credibility to be afforded testimony are issues to be
determined by the trier of fact. State v. Frazier, 73 Ohio St. 3d 323, 339, 1995-Ohio-235,
652 N.E.2d 1000, citing State v. Grant, 67 Ohio St. 3d 465, 477, 1993-Ohio-171, 620
N.E.2d 50. The fact finder “is best able to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (per curiam). Thus, we will only interfere if the fact finder
clearly lost its way and created a manifest miscarriage of justice. Moreover, “[t]o
reverse a judgment of a trial court on the weight of the evidence, when the judgment
results from a trial by jury, a unanimous concurrence of all three judges on the court of
appeals panel reviewing the case is required.” Thompkins, supra, at paragraph four of
the syllabus, construing and applying Section 3(B)(3), Article IV of the Ohio Constitution.
A. Possession of Drugs
{¶18} The jury found Blevins guilty of possession of drugs, i.e.
methamphetamine, in violation of R.C. 2925.11(A), which states: “No person shall
knowingly obtain, possess, or use a controlled substance.” Blevins contends that the
evidence does not support his conviction. We agree.
{¶19} Possession may be actual or constructive. “Actual possession exists
when the circumstances indicate that an individual has or had an item within his
immediate physical possession. Constructive possession exists when an individual is
able to exercise dominion or control of an item, even if the individual does not have the
item within his immediate physical possession.” State v. Fry, Jackson App. No.
Scioto App. No. 10CA3353 9
03CA26, 2004-Ohio-5747, at ¶39, citing State v. Hankerson (1982), 70 Ohio St. 2d 87,
434 N.E.2d 1362, at syllabus and State v. Wolery (1976), 46 Ohio St. 2d 316, 329, 348
N.E.2d 351. For constructive possession to exist, “[i]t must also be shown that the
person was conscious of the presence of the object.” Hankerson at 91. “Dominion and
control, as well as whether a person was conscious of the presence of an item of
contraband, may be established by circumstantial evidence.” State v. Matteson, Vinton
App. No. 06CA642, 2006-Ohio-6827, at ¶23, citing State v. Jenks (1991), 61 Ohio St. 3d
259, 272-273, 574 N.E.2d 492.
{¶20} A defendant’s mere proximity to contraband is in itself insufficient to
establish constructive possession, but proximity to contraband may constitute some
evidence of constructive possession. Fry at ¶40. Therefore, presence in the vicinity of
contraband, coupled with another factor or factors probative of dominion or control over
the contraband, may establish constructive possession. State v. Riggs (Sept. 13,
1999), Washington App. No. 98CA39, 1999 WL 727952, at *5. Moreover, two or more
persons may have joint constructive possession of the same object. Id. at *4.
{¶21} Although Blevins had a loaded syringe on his person at the time of his
arrest, the Sheriff’s Office destroyed the syringe without testing it, and none of the
State’s witnesses testified about any characteristics of the substance that could lead the
jury to conclude it constituted methamphetamine. The “corner piece” law enforcement
found on the front passenger seat contained the only controlled substance seized
during the traffic stop. However, Blevins did not have actual possession of the piece,
and the evidence does not support a finding that he had constructive possession of it.
The piece only had trace amounts of methamphetamine on it and was small enough
Scioto App. No. 10CA3353 10
that Newman made an effort to conceal it between her legs when she exited the vehicle.
Moreover, law enforcement did not see the piece on the seat until after Newman stood
up, i.e. she successfully concealed it from view until forced to exit the vehicle. No
evidence supports a finding that Blevins would have been conscious of the presence of
the corner piece from his position behind the driver, let alone that the piece contained
trace amounts of a controlled substance. Likewise, no evidence supports a finding that
Blevins had dominion or control over the piece aside from his proximity to it. And
because no evidence supports a finding that Blevins knowingly obtained, possessed, or
used a controlled substance, we find that his conviction for possession of
methamphetamine was against the manifest weight of the evidence. We reverse
Blevins’ conviction for possession of methamphetamine and remand so that the trial
court can discharge Blevins on this charge.
B. Possession of Chemicals for the Manufacture of Methamphetamine
{¶22} The jury also found Blevins guilty of possession of chemicals for the
manufacture of a controlled substance, i.e. methamphetamine, in violation of R.C.
2925.041(A), which states: “No person shall knowingly assemble or possess one or
more chemicals that may be used to manufacture a controlled substance in schedule I
or II with the intent to manufacture a controlled substance in schedule I or II in violation
of section 2925.04 of the Revised Code.” Methamphetamine is a Schedule II controlled
substance. R.C. 3719.41, Schedule II(C)(2).
{¶23} Blevins apparently concedes that the chemicals found in the vehicle –
pseudoephedrine, ether in the starting fluid, and lithium in the batteries – may be used
to manufacture methamphetamine. He focuses instead, on the argument that the State
Scioto App. No. 10CA3353 11
failed to put forth evidence that he possessed these chemicals or did so with the intent
to manufacture methamphetamine. We disagree.
{¶24} The State presented evidence from which a jury could conclude that
Blevins possessed chemicals used in the manufacture of methamphetamine with intent
to make the drug. Although he did not pay for the starting fluid and batteries, Blevins
was present when Vest paid for the items at Walmart, had actual possession of one
other item from this transaction during his arrest (tic tacs), and had the starting fluid and
batteries sitting on the floor by him in the backseat. Blevins also sat within reach of the
crushed and uncrushed pseudoephedrine in the vehicle and within reach of non-
chemical items that play a role in the manufacture of methamphetamine, such as the
electrical tape and copper fittings.
{¶25} The State’s evidence of the timeline of events suggests that Blevins
participated in a carefully orchestrated plan with the other occupants of the vehicle to
acquire these items to make methamphetamine and to avoid suspicion by dividing up
the purchases. 1 Between 7:49 p.m. and 8:10 p.m., three of the vehicle occupants
purchased medicine containing pseudoephedrine and a fourth occupant was present
during at least one of those purchases. Three of the four purchases were made at
Walmart between 7:54 p.m. and 8:10 p.m. Blevins and Vest went through the checkout
line at the same Walmart store at 8:15 p.m. to purchase the starting fluid, batteries, and
tape. The jury could infer that once the Walmart purchases (which occurred within
1
The State argues that Blevins is guilty of complicity to possession of methamphetamine and complicity
to possession of chemicals for the manufacture of methamphetamine even if he is not the principal
offender of those crimes. However, the jury was not instructed on the elements of complicity at trial, see
R.C. 2923.03, nor did the jury find Blevins guilty of complicity. Therefore, we do not address this
argument.
Scioto App. No. 10CA3353 12
minutes of each other) were finished at 8:15 p.m., the group of six converged at Craft’s
father’s vehicle, went to Big Lots so someone could make the 8:47 p.m. siphon pump
purchase, and was stopped minutes later by law enforcement.
{¶26} The evidence reasonably supports the conclusion that Blevins had
constructive possession of chemicals used in the manufacture of methamphetamine –
lithium (in the batteries), ether (in the starting fluid), and pseudoephedrine – and that he
intended to manufacture methamphetamine along with the other vehicle occupants.
The jury chose to believe the State’s version of events, and we will not substitute our
judgment for that of the jury under these circumstances. After reviewing the entire
record, we cannot say that the jury lost its way or created a manifest miscarriage of
justice when it found Blevins guilty of possession of chemicals for the manufacture of a
controlled substance.
IV. Ineffective Assistance of Counsel
{¶27} In his first assignment of error, Blevins contends that trial counsel
rendered ineffective assistance. To prevail on an ineffective assistance of counsel
claim, an appellant must show that: 1.) his counsel’s performance was deficient and, 2.)
the deficient performance prejudiced his defense so as to deprive him of a fair trial.
State v. Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, at ¶205,
citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674. To establish deficient performance, an appellant must show that trial counsel’s
performance fell below an objective level of reasonable representation. State v.
Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶95. To establish
prejudice, an appellant must show a reasonable probability exists that, but for the
Scioto App. No. 10CA3353 13
alleged errors, the result of the proceeding would have been different. Id. The
appellant has the burden of proof on the issue of counsel’s ineffectiveness because a
properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio St. 3d
377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶62.
{¶28} Blevins contends that trial counsel rendered ineffective assistance by not
moving for a Crim.R. 29(A) motion for acquittal on the possession of chemicals for the
manufacture of methamphetamine charge.2 A Crim.R. 29(A) motion for acquittal tests
the sufficiency of the evidence presented at trial. State v. Umphries, Ross App. No.
02CA2662, 2003-Ohio-599, at ¶6, citing State v. Williams, 74 Ohio St. 3d 569, 576,
1996-Ohio-91, 660 N.E.2d 724 and State v. Miley (1996), 114 Ohio App. 3d 738, 742,
684 N.E.2d 102. The trial court must enter a judgment of acquittal when the state’s
evidence is insufficient as a matter of law to sustain a conviction. Crim.R. 29(A).
{¶29} However, the failure to raise a sufficiency argument at trial does not waive
that argument on appeal. State v. Cooper, 170 Ohio App. 3d 418, 2007-Ohio-1186, 867
N.E.2d 493, at ¶13. Moreover, “[w]hen an appellate court concludes that the weight of
the evidence supports a defendant’s conviction, this conclusion necessarily includes a
finding that sufficient evidence supports the conviction.” State v. Puckett, Ross App.
No. 10CA3153, 2010-Ohio-6597, at ¶34, citing State v. Pollitt, Scioto App. No.
08CA3263, 2010-Ohio-2556, at ¶14. “Thus, a determination that [a] conviction is
supported by the weight of the evidence will also be dispositive of the issue of
sufficiency.” Id., quoting State v. Lombardi, Summit App. No. 22435, 2005-Ohio-4942,
at ¶9, in turn, quoting State v. Roberts (Sept. 17, 1997), Lorain App. No. 96CA006462,
1997 WL 600669.
2
Blevins does not raise a similar claim for the possession of methamphetamine charge.
Scioto App. No. 10CA3353 14
{¶30} In resolving Blevins’ third assignment of error, we already determined that
his conviction for possession of chemicals for the manufacture of methamphetamine
was not against the manifest weight of the evidence. Therefore, a Crim.R. 29(A) motion
would have been futile. Because the law does not require counsel to take a futile act,
the failure to make the Crim.R. 29(A) motion was not deficient. We overrule Blevins’
first assignment of error.
V. Prejudicial Testimony
{¶31} In his second assignment of error, Blevins contends that the trial court
erred under Evid.R. 403(A) when it permitted Crispen to testify about a statement
Blevins allegedly made to him. Blevins complains that Crispen testified that he told
Crispen that he “cooked meth.” However, from our review of the transcript, Crispen
actually testified that Blevins stated that he was “a small time meth dealer user.”
Evid.R. 403(A) prohibits the introduction of relevant evidence if its “probative value is
substantially outweighed by the danger of unfair prejudice * * *.” Relevant evidence is
“evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be
without the evidence.” Evid.R. 401. “The admission or exclusion of relevant evidence
rests within the sound discretion of the trial court[.]” State v. Haines, 112 Ohio St. 3d
393, 2006-Ohio-6711, 860 N.E.2d 91, at ¶50. Absent an abuse of that discretion, an
appellate court will not disturb a trial court’s ruling on the admissibility of evidence.
State v. Martin (1985), 19 Ohio St. 3d 122, 129, 483 N.E.2d 1157 (per curiam). The
term “abuse of discretion” implies that the court’s attitude was unreasonable, arbitrary,
or unconscionable. State v. Adams (1980), 62 Ohio St. 2d 151, 157, 404 N.E.2d 144.
Scioto App. No. 10CA3353 15
{¶32} Blevins contends that the probative value of Crispen’s testimony was
substantially outweighed by the danger of unfair prejudice. However, “[o]nly in rare
cases are an accused’s own actions or language unfairly prejudicial.” State v. Lee,
Franklin App. No. 06AP226, 2007-Ohio-1594, at ¶7, citing State v. Bailey, Franklin App.
No. 04AP-553, 2005-Ohio-4068, at ¶11. Clearly Blevins’ alleged statement was
relevant to establishing his guilt. Blevins’ status as a user and dealer of
methamphetamine would make it more probable that he understood the ingredients and
process for the manufacture of the drug and in fact intended to manufacture the drug to
both sell and use it.
{¶33} Blevins primarily complains that his alleged statement was “prejudicial”
because Crispen’s testimony lacked credibility. Specifically, he complains that Crispen
could not recall exactly when Blevins made the statement and did not follow up on the
statement even though Blevins had presumably admitted to being a criminal. Blevins
also complains that the statement was not explicitly related to the traffic stop in this
case. However, Crispen’s testimony was not inherently unreliable. The jury was
capable of determining what weight, if any, Blevins’ alleged statement deserved in light
of the other evidence in the case. Admission of the testimony, harmful as it may have
been to Blevins’ case, was not unfairly prejudicial and was not a violation of Evid.R.
403(A). We overrule Blevins’ second assignment of error.
VI. Conclusion
{¶34} In summary, we overrule Blevins’ first and second assignments of error.
We sustain Blevins’ third assignment of error in part and overrule it in part. We reverse
his conviction for possession of methamphetamine and remand so that the trial court
Scioto App. No. 10CA3353 16
can discharge Blevins on that charge.
JUDGMENT AFFIRMED IN PART,
REVERSED IN PART,
AND CAUSE REMANDED.
Scioto App. No. 10CA3353 17
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART, and that the CAUSE IS REMANDED. Appellant and Appellee shall split the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
Abele, J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________
William H. Harsha, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the
clerk. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/98297/ | 235 U.S. 300 (1914)
FALLOWS
v.
CONTINENTAL & COMMERCIAL TRUST & SAVINGS BANK, TRUSTEE IN BANKRUPTCY OF TENGWALL COMPANY.
No. 69.
Supreme Court of United States.
Argued November 9, 1914.
Decided November 30, 1914.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
*301 Mr. Herman Frank for appellee.
Mr. Edwin H. Cassels for appellant, submitted.
*303 MR. JUSTICE McREYNOLDS delivered the opinion of the court.
Bonds amounting to twenty thousand dollars were issued to Fallows, Trustee, by The Tengwall Company, October 7, 1905, payable fifteen years thereafter. To secure them a trust deed or mortgage covering all its personal property was executed and duly recorded in Cook County, Illinois, November 1, 1905; an affidavit for the extension of this was filed October 5, 1908; and a second one October 6, 1909. On June 3, 1910, it gave promissory notes to sundry creditors aggregating more than twenty-five thousand dollars; the same day the holders took judgments thereon by confession in the Superior Court of Cook County; executions were taken out at once and delivered to the sheriff for service, but no levy was ever made.
*304 June 4, 1910, a petition in involuntary bankruptcy was filed against the Company; a Receiver immediately appointed took possession of its property; and an adjudication of bankruptcy followed, June 17th. The Continental & Commercial Trust & Savings Bank was duly selected as trustee August 9th, and shortly thereafter presented a petition asking that the lien created by the executions upon the judgments of June 3rd be preserved, and that it be subrogated thereto for the benefit of the estate. (Bankruptcy Act, § 67-c.) The referee held appellant's answer resisting this petition insufficient, and allowed the subrogation as prayed.
The appellant sought to have all the bonds issued to him allowed as a preferred debt, claiming that they were secured by the above-mentioned trust deed, the lien of which was good as against all the world. The trustee in bankruptcy objected upon the ground that the deed could not prevail over the execution creditors because the Illinois statute limited its effect to three years subject only to a single extension of twelve months, and even if another were possible the second affidavit for extension filed October 6, 1909, was one day too late, and therefore unavailing. The referee sustained the objection and entered an order refusing to allow a preference in favor of the bonds. The District Court approved this action, and its decree was affirmed by the Circuit Court of Appeals (201 Fed. Rep. 82). Thereupon an appeal was taken to this court.
Three assignments of error are relied upon: (1) The order of the referee undertaking to subrogate the trustee to the judgment creditors' liens was erroneous and ought not to have been approved. (2) The trust deed of October 7, 1905, constituted a valid first lien upon all the property specified therein when the bankruptcy proceedings were begun. (3) The executions issued upon judgments of June 3, 1910, created no liens upon the bankrupt's property.
*305 Section 67-f of the Bankruptcy Act, approved July 1, 1898, c. 541, 30 Stat. 544, 565, is copied in the margin,[1] Its purposes have been pointed out in First National Bank of Baltimore v. Staake, 202 U.S. 141, and Rock Island Plow Co. v. Reardon, 222 U.S. 354.
The propriety of subrogating the trustee to whatever liens were acquired under the judgments has been sustained by the three tribunals below. There is no proof showing an abuse of the discretion necessarily vested in them, and we accept their action in that regard as correct.
The validity and priority of the liens in question depend on the laws of the State, and § 9, chapter 77, and §§ 1 and 4, chapter 95, of Hurd's Revised Statutes of Illinois (1913) are pertinent. They are copied in the margin.[2]*306 The provisions relative to the continuation of a mortgage after three years have not been definitely and authoritatively construed by the courts of Illinois. The Circuit Court of Appeals concluded that under them a mortgage lien expires as to judgment creditors three years after recordation, subject to one extension of twelve months from the filing of an affidavit in strict conformity with *307 the prescribed requirements. This conclusion harmonizes with the purpose and history of the statute, and we think is correct. The lien claimed by appellant, as against judgment creditors, therefore, did not continue after the fifth day of October, 1909, and the attempt further to extend it was ineffective. Cook v. Thayer, 11 Illinois, 617; Porter v. Dement, 35 Illinois, 478, 480; Silvis v. Aultman, 141 Illinois, 632; Re New York Economical Printing Co., 110 Fed. Rep. 514; Jones on Chattel Mortgages (5th ed.), p. 287.
There is no adequate proof that the judgments against the bankrupt were fraudulently obtained. The referee found the executions were delivered to the sheriff for service; and appellant maintains this conclusively shows they were not "delivered to the sheriff or other proper officer to be executed," as required by the statute, that "service" does not include "levy." The record discloses no instruction to the officer to refrain from carrying out the mandate of the writs, nor are there facts which clearly indicate a conditional delivery.
The Circuit Court of Appeals decided that under the circumstances of the present case the word service must be taken to include levy, saying (201 Fed. Rep. 82, 85): "In Peck v. City National Bank, 51 Michigan, 353, it is said: `Service of an execution includes every act and proceeding necessary to be taken by the sheriff to make the money and includes the sale of the property when necessary.' The word has been defined to mean `execution of process.' 35 Cyc. 1432. This construction seems to us reasonable in the case before us. It would be placing a strained meaning upon the transaction to hold that, when a party places an execution in the hands of a process officer, the latter is not charged with the duty, without further instructions, to proceed to make the money called for by the writ, which itself commands him to do so. In the absence of directions not to levy, it is the duty *308 of the officer to obey the directions and commands of the writ."
We are of opinion that the courts below properly interpreted the finding of the referee, and that the execution creditors secured valid prior liens upon the bankrupt's property. The decree is
Affirmed.
NOTES
[1] "That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, on due notice, order that the right under such levy, judgment, attachment, or other lien shall be preserved for the benefit of the estate; and thereupon the same may pass to and shall be preserved by the trustee for the benefit of the estate as aforesaid. And the court may order such conveyance as shall be necessary to carry the purposes of this section into effect: Provided, That nothing herein contained shall have the effect to destroy or impair the title obtained by such levy, judgment, attachment, or other lien, of a bona fide purchaser for value who shall have acquired the same without notice or reasonable cause for inquiry."
[2] "§ 9. No execution shall bind the goods and chattels of the person against whom it is issued, until it is delivered to the sheriff or other proper officer to be executed; and for the better manifestation of the time, the sheriff or other officer shall, on receipt of such writ, indorse upon the back thereof the day of the month and year and hour when he received the same.
"§ 1. That no mortgage, trust deed or other conveyance of personal property having the effect of a mortgage or lien upon such property, shall be valid as against the rights and interests of any third person, unless possession thereof shall be delivered to and remain with the grantee, or the instrument shall provide for the possession of the property to remain with the grantor, and the instrument is acknowledged and recorded as hereinafter directed; and every such instrument shall, for the purposes of this act, be deemed a chattel mortgage.
"§ 4. Such mortgage, trust deed or other conveyance of personal property acknowledged as provided in this act shall be admitted to record by the recorder of the county in which the mortgagor shall reside at the time when the instrument is executed and recorded, or in case the mortgagor is not a resident of this State, then in the county where the property is situated and kept, and shall thereupon, if bona fide, be good and valid from the time it is filed for record until the maturity of the entire debt or obligation, or extension thereof made as hereinafter specified: Provided, such time shall not exceed three years from the filing of the mortgage unless within thirty days next preceding the expiration of such three years, or if the debt or obligation matures within such three years, then within thirty days next preceding the maturity of said debt or obligation the mortgagor and mortgagee, his or their agent or attorney, shall file for record in the office of the recorder of deeds of the county where the original mortgage is recorded, also with the justice of the peace, or his successor, upon whose docket the same was entered, an affidavit setting forth particularly the interest which the mortgagee has by virtue of such mortgage in the property therein mentioned, and if such mortgage is for the payment of money, the amount remaining unpaid thereon, and the time when the same will become due by extension or otherwise; which affidavit shall be recorded by such recorder and be entered upon the docket of said justice of the peace, and thereupon the mortgage lien originally acquired shall be continued and extended for and during the term of one year from the filing of such affidavit, or until the maturity of the indebtedness or extension thereof secured by said mortgage: Provided, such time shall not exceed one year from the date of filing such affidavit." | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/101341/ | 278 U.S. 116 (1928)
WASHINGTON EX REL SEATTLE TITLE TRUST COMPANY, TRUSTEE, ETC.
v.
ROBERGE, SUPERINTENDENT OF BUILDING OF SEATTLE.
No. 29.
Supreme Court of United States.
Argued October 11, 12, 1928.
Decided November 19, 1928.
ERROR TO THE SUPREME COURT OF WASHINGTON.
Mr. Corwin S. Shank, with whom Mr. Glenn J. Fairbrook was on the brief, for plaintiff in error.
Mr. A.C. Van Soelen, with whom Mr. Thomas J.L. Kennedy was on the brief, for defendant in error.
*117 MR. JUSTICE BUTLER delivered the opinion of the Court.
Since 1914, the above named trustee has owned and maintained a philanthropic home for aged poor. It is located about six miles from the business center of Seattle on a tract 267 feet wide, extending from Seward Park Avenue to Lake Washington, having an average depth of more than 700 feet and an area of about five acres. The home is a structure built for and formerly used as a private residence. It is large enough to accommodate about 14 guests and usually it has had about that number. The trustee proposes to remove the old building and in its place at a cost of about $100,000 to erect an attractive two and one-half story fireproof house large enough to be a home for 30 persons. The structure would be located 280 feet from the avenue on the west and about 400 feet from the lake on the east, cover four per cent. of the tract and be mostly hidden by trees and shrubs. The distance between it and the nearest building on the south would be 110 feet, on the north 160 and on the west 365.
A comprehensive zoning ordinance (No. 45382) passed in 1923 divided the city into six use districts and provided that, with certain exceptions not material here, no building should be erected for any purpose other than that permitted in the district in which the site is located. § 2. The land in question is in the "First Residence District." The ordinance permitted in that district single family dwellings, public schools, certain private schools, churches, parks, and playgrounds, an art gallery, private conservatories for plants and flowers, railroad and shelter stations. § 3 a. And, upon specified conditions, it also permitted garages, stables, buildings for domestic animals, the office of physician, dentist or other professional person when located in his or her dwelling (§ 3 b), fraternity, sorority and boarding houses, a community clubhouse, a memorial building, nurseries, greenhouses, and buildings necessary *118 for the operation of public utilities. § 3 c. It declared that the section should not be constructed to prohibit the use of vacant property in such district for gardening or fruit raising, or its temporary use for fairs, circuses, or similar purposes. § 3 e. By an ordinance (No. 49179) passed in 1925, § 3 c was amended by adding: "A philanthropic home for children or for old people shall be permitted in First Residence District when the written consent shall have been obtained of the owners of two-thirds of the property within four hundred (400) feet of the proposed building."[*]
*119 Subsequently the trustee, without having obtained consents of other landowners in accordance with the provisions just quoted, applied for a permit to erect the new home. It is the superintendent's official duty to issue permits for buildings about to be erected in accordance with valid enactments and regulations. He denied the application solely because of the trustee's failure to furnish such consents. Then the trustee brought this suit in the superior court of King County to secure its judgment and writ commanding the superintendent to issue the permit; and it maintained throughout that the ordinance, if construed to prevent the erection of the proposed building, is arbitrary and repugnant to the due process and equal protection clauses of the Fourteenth *120 Amendment. That court held that the amended ordinance so construed is valid and dismissed the case. Its judgment was affirmed by the highest court of the State. 144 Wash. 74.
The trustee concedes that our recent decisions require that in its general scope the ordinance be held valid. Euclid v. Ambler Realty Co., 272 U.S. 365. Zahn v. Board of Public Works, 274 U.S. 325. Gorieb v. Fox, 274 U.S. 603. Nectow v. Cambridge, 277 U.S. 183. Is the delegation of power to owners of adjoining land to make inoperative the permission, given by § 3 (c) as amended, repugnant to the due process clause? Zoning *121 measures must find their justification in the police power exerted in the interest of the public. Euclid v. Ambler Realty Co., supra, 387. "The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare." Nectow v. Cambridge, supra, p. 188. Legislatures may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities. Lawton v. Steele, 152 U.S. 133, 137. Adams v. Tanner, 244 U.S. 590, 594. Meyer v. Nebraska, 262 U.S. 390, 399-400. Burns Baking Co. v. Bryan, 264 U.S. 504, 513. Norfolk Ry. v. Public Service Comm'n, 265 U.S. 70, 74. Pierce v. Society of Sisters, 268 U.S. 510, 534-535. Weaver v. Palmer Bros. Co., 270 U.S. 402, 412, 415. Tyson & Brother v. Banton, 273 U.S. 418, 442.
The right of the trustee to devote its land to any legitimate use is properly within the protection of the Constitution. The facts disclosed by the record make it clear that the exclusion of the new home from the first district is not indispensable to the general zoning plan. And there is no legislative determination that the proposed building and use would be inconsistent with public health, safety, morals or general welfare. The enactment itself plainly implies the contrary. The grant of permission for such building and use, although purporting to be subject to such consents, shows that the legislative body found that the construction and maintenance of the new home was in harmony with the public interest and with the general scope and plan of the zoning ordinance. The section purports to give the owners of less than one-half the land within 400 feet of the proposed building authority *122 uncontrolled by any standard or rule prescribed by legislative action to prevent the trustee from using its land for the proposed home. The superintendent is bound by the decision or inaction of such owners. There is no provision for review under the ordinance; their failure to give consent is final. They are not bound by any official duty, but are free to withhold consent for selfish reasons or arbitrarily and may subject the trustee to their will or caprice. Yick Wo v. Hopkins, 118 U.S. 356, 366, 368. The delegation of power so attempted is repugnant to the due process clause of the Fourteenth Amendment. Eubank v. Richmond, 226 U.S. 137, 143. Browning v. Hooper, 269 U.S. 396.
Cusack Co. v. City of Chicago, 242 U.S. 526, involved an ordinance prohibiting the putting up of any billboard in a residential district without the consent of owners of a majority of the frontage on both sides of the street in the block where the board was to be erected. The question was whether the clause requiring such consents was an unconstitutional delegation of power and operated to invalidate the prohibition. The case was held unlike Eubank v. Richmond, supra, and the ordinance was fully sustained. The facts found were sufficient to warrant the conclusion that such billboards would or were liable to endanger the safety and decency of such districts. Pp. 529, 530. It is not suggested that the proposed new home for aged poor would be a nuisance. We find nothing in the record reasonably tending to show that its construction or maintenance is liable to work any injury, inconvenience or annoyance to the community, the district or any person. The facts shown clearly distinguish the proposed building and use from such billboards or other uses which by reason of their nature are liable to be offensive.
As the attempted delegation of power cannot be sustained, and the restriction thereby sought to be put upon *123 the permission is arbitrary and repugnant to the due process clause, it is the duty of the superintendent to issue, and the trustee is entitled to have, the permit applied for.
We need not decide whether, consistently with the Fourteenth Amendment, it is within the power of the State or municipality by a general zoning law to exclude the proposed new home from a district defined as is the first district in the ordinance under consideration.
Judgment reversed.
NOTES
[*] The pertinent provisions of the ordinance as amended follow:
The title is:
An ordinance regulating and restricting the location of trades and industries; regulating and limiting the use of buildings and premises and the height and size of buildings; providing for yards, courts or other open spaces; and establishing districts for the said purposes.
Section 2:
(a) For the purpose of regulating, classifying and restricting the location of trades and industries and the location of buildings designed, erected or altered for specified uses, The City of Seattle is hereby divided into six (6) Use Districts, namely: First Residence District, Second Residence District, Business District, Commercial District, Manufacturing District and Industrial District.
(b) The boundaries of the aforesaid districts are laid out and shown upon the map designated "Use Map," filed in the office of the City Comptroller and ex-officio City Clerk. . . . The Use Districts on said map are hereby established.
(c) . . . No building shall be erected, altered, or used, nor shall any premises be used, for any purpose other than that permitted in the use district in which such building or premises is located.
(d) Where a use in any district is conditioned upon a public hearing or the consent of surrounding property, such use if existing at the time this ordinance becomes effective, shall be allowed repairs or rebuilding without such hearing or consent.
Section 3. First Residence District.
(a) The following uses only are permitted in a First Residence District:
(1) Single Family Dwellings.
(2) Public Schools.
(3) Private Schools in which prescribed courses of study only are given and are graded in a manner similar to public schools or are of a higher degree.
(4) Churches.
(5) Parks and Playgrounds (including usual park buildings).
(6) Art Gallery or Library Building.
(7) Private Conservatories for Plants and Flowers.
(8) Railroad and Shelter Stations.
(b) In a First Residence District, buildings and uses such as are ordinarily appurtenant to dwellings shall be permitted, subject to the limitations herein provided. A garage in a first residence district shall not occupy more than seven per cent (7%) of the area of the lot, and the business of repairing motor vehicles shall not be conducted therein. In the case of a private stable, the written consent must be obtained of the owners of fifty (50) per cent of the property within a radius of two hundred (200) feet of the proposed building. The number of animals, not counting sucklings, in a private stable shall not exceed one for every two thousand (2,000) square feet contained in the area of the lot on which such building is located. Not more than one appurtenant building having a floor area of not to exceed thirty (30) square feet which is used for the housing of domestic animals or fowls shall be permitted on any lot in the First Residence District, except that a building of greater area or a greater number of buildings shall be permitted when the written consent shall have been obtained of the owners of fifty (50) per cent of the dwellings within two hundred (200) feet of the proposed building; provided that such consent shall not be required if the number of said dwellings is less than four (4). The office of a physician, dentist, or other professional person when located in his or her dwelling, also home occupations engaged in by individuals within their dwellings shall be considered as accessory uses, provided that no window display is made or any sign shown other than one not exceeding two (2) square feet in area and bearing only the name and occupation of the occupant. The renting of rooms for lodging purposes only, for the accommodation of not to exceed six (6) persons, in a single family dwelling shall be considered an accessory use.
(c) A fraternity house, sorority house or boarding house when occupied by students and supervised by the authorities of a public educational institution, a private school other than one specified in paragraph (a) this section (3), a community club house, memorial building, nursery or greenhouse, or a building which is necessary for the proper operation of a public utility may be permitted by the Board of Public Works after a public hearing. A philanthropic home for children or for old people shall be permitted in First Residence District when the written consent shall have been obtained of the owners of two-thirds of the property within four hundred (400) feet of the proposed building.
. . . .
(e) Nothing in this section shall be construed to prohibit the use of vacant property for gardening or fruit raising or its temporary use, conformable to Law, for fairs, circuses or similar purposes. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1618450/ | 915 F.Supp. 426 (1996)
Robert Gordon MARSHALL, Plaintiff,
v.
Janet RENO, Attorney General; Kathleen Hawk, Director, Bureau of Prisons, Department of Justice; Gerald Shur, Senior Associate Director, Office of Enforcement Operations, Department of Justice; Gurnia Michaux, Senior Associate Director, Office of Enforcement Operations, Department of Justice; J.W. Tippy, Warden, FCI Ray Brook; John Brush, Warden, FCI Oakdale; Gary Henman, Warden, FDC Oakdale; Doris Meisner, Commissioner, Immigration and Naturalization Service, Department of Justice; Joan Higgins, Assistant Commissioner, Detention and Deportation, Immigration and Naturalization Service; John Caplinger, District Director, New Orleans, Louisiana, Immigration and Naturalization Service; Nancy Hooks, Immigration and Naturalization Service, Oakdale, Louisiana, Defendants.
Civil Action No. 95-1144(CRR).
United States District Court, District of Columbia.
February 1, 1996.
*427 *428 Robert Gordon Marshall, Mission, British Columbia, Canada, pro se.
William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Janet Reno, Doris Meisner, Joan Higgins, Kathleen Hawk, John Caplinger, Nancy Hooks, John Brush, Gary Henman.
MEMORANDUM OPINION
CHARLES R. RICHEY, District Judge.
Before the Court in the above-captioned case is the defendants' Motion to Dismiss and the plaintiff's Opposition thereto. Upon careful consideration of the parties' pleadings, the entire record herein, and the applicable law, the Court shall grant the defendants' Motion.
BACKGROUND
The plaintiff, a Canadian citizen currently residing in Canada, asserts two sets of claims regarding his former incarceration in various federal facilities pursuant to a four-year sentence he received in the United States District Court for the Eastern District of New York. First, the defendant alleges that defendants Reno, Meisner, Higgins, Hawk, Caplinger, Hooks, Brush, and Henman conspired to deprive him of his civil rights by denying him access to various release programs available to United States citizens, and by failing to expeditiously deport him, thereby subjecting him to prison conditions harsher than those he would have faced in Canadian prisons. As relief therefor, the defendant seeks fifty thousand dollars in compensatory damages and fifty thousand dollars in punitive damages.
Second, the plaintiff alleges that defendants Reno, Shur, Michaux, and Tippy conspired to arbitrarily deny him transfer to a Canadian prison pursuant to a treaty in effect between the United States and Canada, and to thereby deny him treatment equal to that afforded similarly situated inmates.[1] For this claim, the defendant seeks one hundred thousand dollars in compensatory damages and one hundred thousand dollars in punitive damages.
DISCUSSION
As a threshold matter, in light of his repeated invocation of Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), it would appear that the plaintiff seeks to recover against the defendants in their individual capacities. However, the basis for the plaintiff's claims is unclear. He claims that the defendants violated his rights under the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments, yet he fails to set forth any substantive discussion of a particular constitutional provision in support of his claims.
Several of the Amendments are clearly inapplicable to the facts which the defendant posits. Given that he fails to identify any speech, religious, or associational interest allegedly impaired by the defendants' actions, the plaintiff fails to articulate a claim under the First Amendment. Similarly, the plaintiff does not allege that he has been subject to an unlawful search or seizure, or any other government action sufficient to trigger the protections of the Fourth Amendment. The plaintiff's invocation of the Ninth Amendment as a basis for recovery is particularly puzzling given that the Ninth Amendment does not set forth any particular guarantees, but is merely a rule of construction. And because the defendants are all federal officials, and the plaintiff does not allege that the alleged deprivations were accomplished *429 under color of state law, the Fourteenth Amendment is also inapplicable.[2]
The apparent basis of the plaintiff's claim under the Eighth Amendment is that the failure to either deport or transfer him to a Canadian prison was cruel and unusual because the defendants thereby subjected him to less humane conditions than he would have faced in the Canadian prison system. See Complaint, Civ. A. No. 95-1406, at 12. Notwithstanding the plaintiff's attempt to use the allegedly more progressive Canadian prison system as a stalking horse in order to satisfy the objective component of a cognizable Eighth Amendment claim, the Court finds his claim under the Eighth Amendment frivolous. So long as a sentence imposed is within the statutory limits, the mere execution thereof cannot form the basis of an Eighth Amendment claim. See Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir.1992); United States v. Gourley, 835 F.2d 249, 252-53 (10th Cir.1987).
However, in light of the plaintiff's pro se status, the Court shall liberally construe his Complaint as setting forth the only potentially cognizable constitutional claims: that the failure to either deport or transfer him to Canada, and to enroll him in a community corrections program or place him in a minimum security facility deprived him of his due process and equal protection rights under the Fifth Amendment. Still, the Court is unable to exercise jurisdiction over the nonresident defendants, the defendant fails to state a claim upon which relief can be granted, and the defendants are entitled to qualified immunity. Therefore, the Court shall grant the defendants' Motion to Dismiss.
I. The Court is unable to exercise jurisdiction over nonresident defendants Caplinger, Hooks, Brush, and Henman because they are not alleged to conduct any business or make any contracts in the District of Columbia, nor is any injury alleged to have been suffered in the District.
The District of Columbia long-arm statute, D.C.Code § 13-423, is the only basis upon which personal jurisdiction may be obtained over defendants who do not reside within or maintain a principal place of business in the District of Columbia. Reuber v. United States, 750 F.2d 1039, 1049 (D.C.Cir. 1984). The statute provides that a court in the District of Columbia may exercise personal jurisdiction over a defendant with regard to a claim arising from the defendant's
(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of Columbia;
(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;
(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he [or she] regularly does or solicits business, [or] engages in any other persistent course of conduct ... in the District of Columbia.
D.C.Code § 13-423(a)(1)-(4) (1981).
Defendants Caplinger, Brush, Henman, and Hooks work in Louisiana. Defendant Tippy works in New York. Because these defendants are not alleged to conduct any business or make any contracts for services in the District of Columbia and because no injury is alleged to have been suffered in the District of Columbia, the Court cannot exercise jurisdiction over them.
II. The plaintiff's fails to state a claim upon which relief can be granted.
A. The plaintiff's claims against defendants Reno and Hawk must be dismissed because respondeat superior may not be the basis of a Bivens suit.
Absent any allegations that defendants Reno and Hawk personally participated in the events which gave rise to the plaintiff's claims, or any corroborative allegations to support the inference that these *430 defendants had notice of or acquiesced in the improper securing of detainers against the plaintiff by their subordinates, dismissal is appropriate. See Haynesworth v. Miller, 820 F.2d 1245, 1259 (D.C.Cir.1987) (fellow government employees cannot be held liable under the theory of respondeat superior for either constitutional or common law torts); Smith-Bey v. District of Columbia, 546 F.Supp. 813, 814 (D.D.C.1982) (same). Respondeat superior has been consistently rejected as a basis for the imposition of § 1983 or Bivens liability. See, e.g., Monell v. Dep't of Social Srvcs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 423 U.S. 362, 375-76, 96 S.Ct. 598, 606-07, 46 L.Ed.2d 561 (1976); Boykin v. District of Columbia, 689 F.2d 1092, 1097-99 (D.C.Cir.1982); Tarpley v. Greene, 684 F.2d 1, 9-11 (D.C.Cir.1982). Therefore, any potential Bivens claims against these defendants, whose only relationship to the instant litigation is their ultimate supervisory status, must be dismissed.
B. The plaintiff's conspiracy allegation is too generalized and conclusory to state a claim upon which relief can be granted.
To the extent that the plaintiff suggests the existence of a conspiracy between the defendants, his allegations fail to state a claim upon which relief can be granted. As the United States Court of Appeals for the District of Columbia Circuit has observed,
[u]nsupported factual allegations which fail to specify in detail the factual basis necessary to enable [defendants] to intelligently prepare their defense, will not suffice to sustain a claim of governmental conspiracy to deprive [plaintiffs] of their constitutional rights.
Martin v. Malhoyt, 830 F.2d 237, 258 (D.C.Cir.1987). The plaintiff fails to assert any factual basis to support the conclusion that a conspiracy existed. Therefore, the plaintiff's conspiracy claims will be dismissed for failure to state a claim upon which relief can be granted.
C. There is no protected liberty interest in obtaining deportation or transfer to a foreign prison, or in being incarcerated at either a particular facility or a particular security classification. Therefore, the plaintiff fails to state a cognizable due process claim with respect to the failure to deport or transfer him to a Canadian prison.
The plaintiff alleges that, by refusing to effect a Treaty transfer or deport him, the defendants caused him to be imprisoned more than four thousand miles from his family, and for two year's longer than he would have been had he been transferred to Canada. With respect to his deportation, the plaintiff alleges that the refusal to expeditiously deport him caused him to be imprisoned six months more than would a United States citizen under similar circumstances. He also alleges that he was denied access to various release programs available to United States citizens in similar circumstances. Liberally construed, the plaintiff's claim is that, by refusing to transfer, deport, or enroll him in any release programs, the defendants have effectively subjected him to longer incarceration and more severe conditions than he otherwise would have faced. In essence, the plaintiff claims that he has an enforceable liberty interest in being transferred or deported, and enrolled in certain release programs, in that it was incumbent upon the defendants to ameliorate his situation in such a manner.
Liberty interests protected by the Fourteenth Amendment may arise directly from the Due Process Clause itself or from the laws of the states. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989); Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). However, "lawfully incarcerated persons retain only a narrow range of protected liberty interests." Helms, 459 U.S. at 467, 103 S.Ct. at 869. See also Hernandez v. Coughlin, 18 F.3d 133, 136-37 (2d Cir.1994). Thus, the Court has held that an inmate has no inherent liberty interest in commutation of his sentence, Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 2464, 69 *431 L.Ed.2d 158 (1981); in being paroled, Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668 (1979); in receiving good-time credit for satisfactory behavior while in prison, Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); in avoiding "administrative" (nonpunitive) segregation from the general prison population, Helms, 459 U.S. at 468, 103 S.Ct. at 869-70; or in remaining in one correctional institution rather than another, Olim v. Wakinekona, 461 U.S. 238, 248, 103 S.Ct. 1741, 1746-47, 75 L.Ed.2d 813 (1983); Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538-39, 49 L.Ed.2d 451 (1976).
In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not itself give rise to a protected interest in being confined in the general prison population. Id. at 467-68, 103 S.Ct. at 869-70. Instead, the Clause standing alone requires only that an inmate be confined under conditions consistent with his sentence, id. at 468, 103 S.Ct. at 869-70 (citing Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547-48, 49 L.Ed.2d 466 (1976)), and that "administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration," id. See also Olim v. Wakinekona, 461 U.S. 238, 247, 103 S.Ct. 1741, 1746, 75 L.Ed.2d 813 (1983) (transfer for confinement in another state is within normal range of custody); Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976) (transfer within state is within normal range of custody); cf. Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (transfer to mental hospital is not within normal range of custody).
The Supreme Court recently made clear in Sandin v. Conner, ___ U.S. ___, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), that, while governments may create by statute or regulation interests which are protected by the Due Process Clause even though the same interests are not among those protected by the Clause standing alone, "these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, ... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at ___, 115 S.Ct. at 2300; see also Montanye, 427 U.S. at 242, 96 S.Ct. at 2547 ("As long as the conditions or degree of confinement to which the prisoner is subjected are within the sentence imposed on him [or her] and are not otherwise violative of the Constitution, the Due process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight."). Therefore, as a threshold matter, courts are directed to determine whether the "conditions suffered were expected within the contour of the actual sentence imposed." Id. at ___ n. 9, 115 S.Ct. at 2301 n. 9.
The plaintiff claims that it was understood by him, his trial attorney, the sentencing judge, and the Assistant United States Attorney for the Eastern District of New York who handled his case that he would be transferred to Canada. See Complaint, Civ. A. No. 95-1406, at 14. Specifically, he alleges that the prosecutor and other federal authorities agreed not to oppose a treaty transfer and that the sentencing judge accordingly recommended that the plaintiff be designated to FCI Ray Brook, the departure institution for prisoners awaiting treaty transfers. Id. at 11. Liberally construing the plaintiff's claim in light of Sandin, he is apparently arguing that his transfer to Canada is part of his sentence and that, as a result of the defendants failure to transfer him, his continued incarceration within the United States is not "within the contour of the actual sentence imposed." Id. at ___ n. 9, 115 S.Ct. at 2301 n. 9.
Prisoners have no right to be incarcerated in a particular institution. Olim, supra. Furthermore, it is beyond the authority of the sentencing judge to order where a defendant will be incarcerated. Rather, the authority to place federal defendants at any particular institution is vested in the Bureau *432 of Prisons. 18 U.S.C. § 3621.[3] Because it was a matter beyond the control of the sentencing judge, it cannot be said that location of the plaintiff's confinementwhether here or abroadwas "within the contour of the actual sentence imposed." Therefore, any change with respect thereto cannot serve as the predicate for a due process claim.
Moreover, the decision whether to transfer an inmate pursuant to a treaty is within the discretionary authority of the Attorney General and is not subject to judicial review; no language in the treaty's implementing legislation affords the plaintiff with a right to a transfer. Bagguley v. Bush, 953 F.2d 660, 662 (D.C.Cir.1991), cert. denied, 503 U.S. 995, 112 S.Ct. 1698, 118 L.Ed.2d 408 (1992); Scalise v. Thornburgh, 891 F.2d 640, 649 (7th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1815, 108 L.Ed.2d 945 (1990). Nor does the plaintiff have any right to judicial review of the decision under the Administrative Procedures Act. Bagguley, 953 F.2d at 661-62; Scalise, 891 F.2d at 648-49. Accordingly, any due process claim predicated on such an interest fails to state a claim upon which relief can be granted.
D. The plaintiff fails to state a cognizable claim under the Equal Protection Clause.
The plaintiff asserts two claims under the Equal Protection Clause. First, he claims that other similarly situated prisoners have been transferred or deported and that the failure to transfer or deport him constitutes a denial of equal protection. Second, the plaintiff claims that the defendants "deliberately denied [him] minimum security facilities, halfway houses and other community programs, including home-confinement, available to United States citizens who committed the same offense, were equally culpable, and received the same sentence." Complaint, Civ. A. No. 95-1144, at 13. Because the plaintiff fails to allege that the defendants refusal to transfer or deport him was the result of a constitutionally impermissible motive, and because the regulation pursuant to which the plaintiff was denied access to early release programs, BOP Program Statement 5100.05(H), does not facially violate the Equal Protection Clause, and its application to the plaintiff was rationally related to a legitimate governmental interest, the plaintiff fails to state a claim under the Equal Protection Clause with regard thereto.
1. Because the plaintiff does not allege that the refusal to transfer or deport him was the product of an unconstitutional discriminatory motive, he fails to state a claim under the Equal Protection Clause with respect thereto.
The plaintiff's claim that his equal protection rights were violated when he was allegedly treated differently than other similarly situated prisoners who were either deported or transferred fails to meet either of the necessary predicates for stating a cognizable selective enforcement claim under the Equal Protection Clause. See Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962); Brandon v. District of Columbia Bd. of Parole, 823 F.2d 644, 650 (D.C.Cir.1987) (citing Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886)). The plaintiff only baldly asserts that he was treated differently than other prisoners in his circumstances. Further, he does not claim that the allegedly selective enforcement of the provisions regarding deportation or transfer was the result of a constitutionally impermissible motive. Indeed, the articulated justification for the defendants' refusal to transfer or deport him the plaintiff's prior drug history and continued criminal behavior while in prison suggest that the defendants' actions had a rational basis. Cf. Woods v. Edwards, 51 *433 F.3d 577, 580 (5th Cir.1995) (per curiam) (extended lockdown for nearly four years of prison inmate who was member of racial minority, while similarly situated white prisoners were released, did not violate inmate's equal protection rights, given complete lack of evidence, other than inmate's own personal beliefs, that his extended lockdown was racially motivated; prison officials justified lockdown based on seriousness of inmate's conduct in writing threatening letters to persons outside prison and forging name of another prisoner). As the Court need not accept legal conclusions cast in the form of factual allegations, Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir. 1994), the plaintiff fails to articulate a cognizable claim under the Equal Protection Clause with respect to the defendants' refusal to transfer or deport him.
2. BOP Program Statement 5100.05(H) does not, on its face, violate the Equal Protection Clause, nor did its application to the plaintiff.
Title 18, Section 3624(c) directs the BOP, to the extent practicable, to make a special community assignment for the last 10 percent of a federal prisoner's sentence. 18 U.S.C. § 3624(c). Given that this provision "focuses on reentry into a community, Congress may not have intended it to apply to deportable aliens at all." United States v. Smith, 27 F.3d 649, 654 (D.C.Cir.1994) (citing United States v. Restrepo, 999 F.2d 640, 645 (2d Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 405, 126 L.Ed.2d 352 (1993)). Indeed, this Circuit has adopted this view. Id. Nonetheless, the BOP has taken a different view, extending access to community confinement programs and minimum security facilities to deportable aliens who have a history of strong family or community ties, of domicile in the United States of at least five years, and of stable employment. BOP Program Statement 5100.05(H).
Contrary to the plaintiff's argument, the Program Statement does not discriminate on the basis of a prisoner's national origin, i.e., the country in which a prisoner was born, at all. Rather, it makes a distinction on the basis of a prisoner's alienage, i.e., his or her citizenship.
Moreover, the Program Statement does not categorically deny aliens access to early release programs. Instead, as noted, deportable aliens who meet three criteria are eligible for placement. Thus, while a prisoner's alienage is a threshold consideration, it is not dispositive. Rather, "ineligibility stems primarily from the greater likelihood of escape, so that status as a deportable alien is little more than a proxy for factors the Bureau always considers [in determining eligibility for community corrections programs or minimal security prisons]." Smith, 27 F.3d at 655. It is undisputed that the plaintiff fails to satisfy those criteria. Therefore, it cannot be said that either the statute itself or its application to the plaintiff denies him equal protection. Cf. Prows v. United States Dep't of Justice, Civ. A. No. 90-2561-LFO, 1992 WL 78769 (D.D.C. April 1, 1992), at *3.
In support of his argument, the plaintiff cites several decisions in which courts have recognized the availability of downward departures from the sentencing guidelines as a means of equalizing deportable aliens and citizen prisoners. For instance, in Smith, the Court held that a deportable prisoner's severity of confinement can be a ground for downward departure, but notes that the instances where a departure will be appropriate will be "quite rare" and that
[f]or a departure on such basis to be reasonable the difference in severity must be substantial and the sentencing court must have a high degree of confidence that it will in fact apply for a substantial portion of the defendant's sentence. Finally, as the defendant's status as a deportable alien is by no means necessarily unrelated to his just deserts, even a court confident that the status will lead to worse conditions should depart only when persuaded that the greater severity is undeserved.
Smith, 27 F.3d at 655. Contra United States v. Restrepo, 999 F.2d 640, 644-47 (2d. Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 405, 126 L.Ed.2d 352 (1993); United States v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1552, 128 L.Ed.2d 201 (1994); United States v. *434 Nnanna, 7 F.3d 420, 422 (5th Cir.1993); United States v. Alvarez-Cardenas, 902 F.2d 734, 737 (9th Cir.1990); United States v. Vargas, No. 92 CR 7433, 1995 WL 453021, at *1 (N.D.Ill. July 27, 1995). In any event, assuming arguendo that the plaintiff does not stand on equal footing with prisoners who are United States citizens by virtue of his status as a deportable alien, his remedy, if any, lies in the sentencing court.
E. The defendants are entitled to qualified immunity from claims against them in their individual capacities because the plaintiff fails to establish that he had a clearly established right to be transferred, deported, or placed in an early release program.
Federal officials enjoy qualified immunity from constitutional and statutory claims against them in their individual capacities. Cleavinger v. Saxner, 474 U.S. 193, 206, 106 S.Ct. 496, 503, 88 L.Ed.2d 507 (1985). As the Supreme court made clear in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), officials are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. at 818, 102 S.Ct. at 2738; see also Hunter v. District of Columbia, 943 F.2d 69, 75 (D.C.Cir.1991).
"In order for a person to have a clearly established right, `the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Mahers v. Harper, 12 F.3d 783, 785 (8th Cir.1993) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. (citation omitted). This analysis "focuses on the objective legal reasonableness of an official's acts." Harlow, 457 U.S. at 819, 102 S.Ct. at 2739.
Therefore, the Court must decide whether the plaintiff had a clearly established right to be deported, transferred, or enrolled in a community corrections program or placed in minimum security confinement. In light of the Court's conclusion that the plaintiff fails to state a claim upon which relief can be granted with respect thereto, a fortiori he fails to demonstrate that the defendants violated any of his "clearly established rights."
F. Sovereign immunity bars any claims against the United States Department of Justice, the Federal Bureau of Prisons, the Immigration and Naturalization Service, or the individual defendants in their official capacities.
To the extent that the plaintiff seeks damages against the United States or the individual federal defendants in their official capacities, his claims must be dismissed absent a waiver of sovereign immunity. The inherent sovereign immunity of the United States protects it and its agencies from suit absent an express waiver. See United States v. Nordic Village, 503 U.S. 30, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). Sovereign immunity also bars suits for money damages against officials in their official capacities absent a specific waiver by the government. Clark v. Library of Congress, 750 F.2d 89, 101-02 (D.C.Cir.1984). Because the Court cannot discern from the plaintiff's Complaint any colorable basis for such a waiver, to the extent the plaintiff asserts any claims for damages against the United States Department of Justice, the United States Bureau of Prisons, or the federal defendants in their official capacities, such claims must be dismissed for lack of subject matter jurisdiction.
III. Conclusion.
Upon careful consideration of the parties' pleadings, the entire record herein, and the applicable law with respect thereto, the Court will enter an Order of even date herewith consistent with the foregoing Memorandum Opinion GRANTING the Defendants' Motion to Dismiss.
NOTES
[1] This second set of claims was originally asserted in Civil Action No. 95-1406, which was consolidated into Civil Action No. 95-1144.
[2] The guarantee of equal protection by the federal government is secured by the Fifth Amendment, not the Fourteenth. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954) (finding equal protection component in the Due Process Clause of the Fifth Amendment).
[3] Upon the imposition of sentence, federal defendants are remanded to the custody of the BOP (formerly the Attorney General), which designates the place of confinement and may direct the transfer of a prisoner from one penal or correctional facility to another. 18 U.S.C. § 3621(b). The BOP "may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the [BOP], whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the [BOP] determines to be appropriate and suitable...." Id. See United States v. Smith, 27 F.3d 649, 655 (D.C.Cir.1994) ("The range of factors that the Bureau may consider in its assignments is almost illimitable."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920224/ | 337 A.2d 323 (1975)
GRIER LUMBER COMPANY, INC., Plaintiff,
v.
David TRYON, t/a Ryon Services, Benjamin Hardesty and Carol Hardesty, Defendants.
Superior Court of Delaware, Kent.
March 25, 1975.
*324 Randy J. Holland, and Harold E. Dukes, Jr., of Dunlap & Holland, George town, for plaintiff.
Wilmer C. Bettinger, of Schmittinger & Rodriguez, Dover, for defendants.
TAYLOR, Judge.
Plaintiff supplied materials for construction of a garage at the residence of the individual defendants [defendants]. The materials were purchased by defendant David Tryon [contractor] who constructed the garage pursuant to contract with defendants. Approximately two weeks before defendants made their final payment under the contract to contractor, plaintiff contacted defendants stating that contractor owed a bill for the materials and requesting that all further payments be made payable jointly to contractor and plaintiff. Defendants indicated that they would comply with this request. Thereafter, defendants discussed the matter with contractor and they were informed by the contractor that there was no money owed and that the contractor would take care of the dispute over the bill. After unsuccessfully seeking an indemnification agreement from the contractor, defendants paid the balance of the contract price to the contractor.
Defendants seek summary judgment on the basis of 25 Del.C. § 2707 which provides as follows:
"§ 2707. Payment of contractor by owner of residence as a defense; certification of payment for labor and materials or release of liens by contractor.
No lien shall be obtained under this chapter upon the lands, structure, or both, of any owner which is used solely as a residence of said owner when the owner has made either full or final payment to the contractor, in good faith, with whom he contracted for the construction, erection, building, improvement, alteration or repair thereof. Prior to or simultaneous with the receipt of any full or final payment by the contractor, the contractor must provide the owner either (1) a notarized, verified written certification that the contractor has paid in full for all labor performed and materials furnished to the date of such full or final payment in or for such construction, erection, building, improvement, *325 alteration or repair or (2) a written release of mechanics' liens signed by all persons who would otherwise be entitled to avail themselves of the provisions of this chapter, containing a notarized, verified certification signed by the contractor that all of the persons signing the release constitute all of the persons who have furnished materials and performed labor in and for the construction, erection, building, improvement, alteration and repair to the date of the release and who would be entitled otherwise to file mechanics' liens claims. Failure of the contractor to provide the owner a written certification or a release of mechanics' liens at such time shall constitute sufficient cause for the immediate suspension, revocation or cancellation of the contractor's occupational and business licenses. If the owner has not made full payment in good faith to such contractor, the lien may be obtained in accordance with this chapter, but it shall be a lien only to the extent of the balance of the payment due such contractor, which balance or portion shall be payable pro rata among the claimants who perfect liens. Payments made to the contractor by the owner after service of process, as provided in § 2715 of this title, shall not be deemed to be `in good faith.' (25 Del.C.1953, § 2707; 57 Del. Laws, c. 498; 58 Del.Laws, c. 274 § 1)."
The issue is whether under the facts stated above, the payment made by defendants to the contractor after defendants were informed by plaintiff of outstanding bills was a payment made in good faith, as contemplated by the statute. § 2707 was added to the mechanics' lien law by 57 Delaware Laws, Chapter 498, apparently to soften the harsh impact of the mechanics' lien law in the case of residential owners. The only attempt in the statute to define the phrase "in good faith" is in the last sentence of the section where it provides that payment made to the contractor after a mechanics' lien action has been served on the owner shall not be deemed to have been made in good faith. This example is, of course, one instance in which an owner would be put on notice of a claim by one entitled to a mechanics' lien.
I conclude that the good faith requirement does not merely mean that the owner made an actual payment to the contractor without any arrangement that the contractor will repay the money to the owner. If the statute had merely intended to require actual, irrecocable payment, this would have been adequately provided by the use of the "payment" without the added requirement of good faith, since existing concepts of fraud would have rendered a collusive payment scheme ineffective as a payment.
Prior to adoption of this section, those who had no direct contractual relationship to the owner who supplied materials or furnished labor in connection with construction at the property (hereinafter referred to as "remote party") were entitled to obtain a lien against the owner's property for such materials or labor. The effect of the 1970 amendment is to place a limitation, in the case of residential property, upon the right of a remote party to recover a mechanics' lien against property. Since the amendment is a limitation of the right of a remote party to assert a mechanics' lien, it is concluded that the good faith requirement would mean the good faith of the owner with respect to the remote party. Thus, the requirement that the payment be made in good faith must refer to a good faith status between the property owner who makes the payment and the remote party who would otherwise have a right to a mechanics' lien.
The term "in good faith" has been defined to mean that a person has acted without notice of a claim, Hayne v. Cook, 252 Iowa 1012, 109 N.W.2d 188 (1961), or action upon an honest or reasonable belief, Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 124 N.J.Super. 248, 306 A.2d 77 (1973); Eldon's Super Fresh Stores, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 296 Minn. 130, 207 N. *326 W.2d 282, 287 (1973). In the Uniform Commercial Code, 6 Del.C. § 3-302(1)(b), it is used in conjunction with other language to require action in absence of disqualifying information. Here, the legislative draftsman did not choose to use elaborating language. Considering the impact of this amendment on the rights of remote parties as they previously had existed, I conclude that the legislature intended the phrase to require that the owner have no reason to believe that his action of payment to the general contractor would lessen the likelihood of payment to the remote lien holder. It is recognized that in many instances the owner is unaware of the contractor's sources of materials and workmanship and it is unrealistic to expect the residential owner to pursue such matter. On the other hand, where the owner has been put on notice by the remote lien holder of the fact that his bill is unpaid, it cannot be said that the subsequent act of paying the contractor was an action in good faith with respect to the remote lien holder. Here, defendants were put on notice by the materialman of the outstanding bill which the contractor had not paid.
It is unfortunate that defendants, having been placed on notice of the unpaid bill, chose to rely upon the word of the contractor rather than to protect themselves. The good faith action contemplated by the statute involves good faith or fair treatment toward the remote lien holder rather than in the relationship between the owner and the contractor. In order for the residential owner to benefit from the section, he must have acted fairly toward the remote lien holder whose unpaid claim has come to the owner's attention, if the remote party is to be deprived of a mechanics' lien.
I conclude that upon the record, it does not appear that the defendants acted in good faith with respect to the claim of plaintiff when defendants made further payment to the contractor after being informed of the outstanding bill of plaintiff. Therefore, defendants are not entitled to the benefit of § 2707 with respect to any payment made after they were notified of plaintiff's claim. This case has proceeded on the basis that the subsequent payment by defendants exceeded the amount of plaintiff's claim. Accordingly, defendants' motion for summary judgment is denied.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3035804/ | FILED
NOT FOR PUBLICATION MAR 31 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10080
Plaintiff - Appellee, D.C. No. 1:08-cr-00017-2-ARM
v.
MEMORANDUM *
MASAIOSHY DAIKICHI SALLEM,
Defendant - Appellant.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Alex R. Munson, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Masaioshy Daikichi Sallem appeals from his jury-trial conviction and
21-month sentence for conspiracy to sell government property, in violation of 18
U.S.C. §§ 371 & 641, and unauthorized sale of government property, in violation
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
DAT/Research
of 18 U.S.C. § 641. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
Pursuant to Anders v. California, 386 U.S. 738 (1967), Sallem’s counsel has
filed a brief stating there are no grounds for relief, along with a motion to withdraw
as counsel of record. We have provided the appellant with the opportunity to file a
pro se supplemental brief. No pro se supplemental brief or answering brief has
been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district
court’s judgment is AFFIRMED.
DAT/Research 2 09-10080 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1618116/ | 38 So. 3d 780 (2010)
WILSON
v.
STATE.
No. 2D09-190.
District Court of Appeal of Florida, Second District.
June 30, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1618321/ | 685 S.W.2d 212 (1984)
Leo M. MULLEN, M.D., Appellant,
v.
John H. RENNER, et al., Respondents.
No. WD 35730.
Missouri Court of Appeals, Western District.
November 27, 1984.
Rehearing Denied January 29, 1985.
Application to Transfer Denied April 2, 1985.
*213 Leo M. Mullen, M.D., pro se.
Myron S. Silverman, Gage & Tucker, Kansas City, for respondents.
Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
PER CURIAM:
Following his involuntary retirement from the staff of St. Mary's Hospital, Dr. Leo Mullen, acting pro se, filed: (1) a petition against the hospital and named members of the hospital staff, and (2) a motion for a "temporary injunction allowing him to continue on the hospital staff during the pendency of the lawsuit." Appellant sought reinstatement on the hospital staff and money damages. The defendants moved to dismiss the petition for failure to state a cause of action. Following a hearing, the trial court issued its judgment overruling the motion for injunction and dismissing the petition with prejudice.
Mullen alleged that he had been indicted by a federal grand jury for controlled substances offenses. In preparation for trial, Mullen was examined by a psychiatrist, Dr. William McNelly, of the University of Kansas College of Health Sciences and Hospital. McNelly found "that at the time of the alleged acts [Dr. Mullen's] judgment was so impaired ... that he was unable to appreciate the wrongful nature of his acts." Based on this diagnosis, the United States Attorney for Western Missouri, with leave of the district court, dismissed the indictment against Dr. Mullen.
In the fall of 1982, during its periodic review of physicians sixty-five years old and older, the credentials committee of St. Mary's Hospital reviewed the report of Dr. McNelly and recommended to the executive committee that "Dr. Mullen be retired from the St. Mary's staff." The executive committee afforded Mullen a hearing on November 17, 1982. Although Dr. Mullen attended the hearing, he presented no affirmative evidence of his own. Rather, Mullen maintained that McNelly's conclusions were based on symptoms caused by Mullen's high blood pressure medicine. Mullen argued that the committee should be able to conclude, based on his appearance and demeanor before the committee, that McNelly's report was no longer accurate (if, indeed, it was ever accurate). The executive committee decided to retire Dr. Mullen from St. Mary's staff.
*214 St. Mary's Hospital gave Mullen a further "appellate review hearing" of the decision to retire him from the staff. Again, Mullen did not present any affirmative evidence on his behalf regarding his mental condition. Rather, he argued that McNelly's report was incorrect. Dr. Mullen was subsequently involuntarily retired from the staff of St. Mary's Hospital.
Dr. Mullen argues that the trial court abused its discretion when it dismissed his petition without, sua sponte, offering Mullen an opportunity to amend it to state a cause of action, and dismissed his petition with (rather than without) prejudice. The point is denied.
I
Before discussing the point raised by appellant, we address a jurisdiction matter raised by respondents. Respondents contend that the appeal should be dismissed because the appeal was taken from an order overruling Mullen's motion for rehearing rather than from the trial court's judgment of February 16, 1984. Respondents are correct in contending that the appeal lies from the trial court's judgment and not from the order overruling the motion. An attempt to appeal from a non-appealable post judgment order may or may not be a basis for dismissal of the appeal, depending on perception by the appellate court of the interests of justice, the inadvertence of the mistake and the presence or absence of a good faith attempt to present issue cognizable for appeal and discernable from the briefs and record. Pittman v. Reynolds, 679 S.W.2d 892 (Mo.App.1984). In the instant case, the conditions warrant leniency and, in the interests of disposing of the controversy, the appeal is considered as taken from the judgment dismissing Mullen's petition.
II
We begin by noting that Mullen does not contest the correctness of the trial court's determination that the petition, as it stands, fails to state a cause of action. Rather, Mullen's point concerns the trial court's action, or inaction, after making the decision that the petition was deficient.
Mullen begins by correctly noting the liberality which is accorded requests for leave to amend a petition, even during trial. Hanes v. Bacon Sales Co., 602 S.W.2d 50, 53 (Mo.App.1980); Rule 55.33. However, Mullen concedes that he "did not specifically request time to amend" his petition. Rule 67.06. He argues that the trial judge should have affirmatively offered appellant the opportunity to amend his petition. "If a plaintiff desires to file an amended petition it is up to him to ask leave to do so." Jones v. Williams, 209 S.W.2d 907, 911 (Mo.1948). Much more recently, this court has rejected the argument that a trial judge must sua sponte grant a party leave to amend a deficient pleading. Burr v. National Life & Acc. Ins. Co., 667 S.W.2d 5, 7-8 (Mo.App.1984).
III
Appellant also argues that the trial judge improperly dismissed the petition with prejudice rather than without prejudice. "[I]nvoluntary dismissal[s] ... shall be with prejudice unless the court in its order for dismissal shall otherwise specify." Rule 67.03. While the trial court may, in its order of dismissal, specify that it is without prejudice, appellant has presented no reason for the trial court to have taken such a step. Appellant concedes that he did not seek leave to amend his petition. When a party fails to seek leave to amend a deficient pleading, it may be assumed that the party "has made the strongest presentation of his case which the facts permit and was satisfied with his pleading." 5 C.J.S. Appeal & Error Section 1539b, p. 1083 (1958).
IV
Appellant argues that the trial court's actions constituted an abuse of discretion. He correctly notes that the standard of review in such a case is whether reasonable minds could differ as to the correctness of the ruling. Anderson v. Robertson, 402 *215 S.W.2d 589, 593 (Mo.App.1966). If reasonable minds could differ, then there is no abuse. We have outlined substantial reasons supporting the trial court's judgment of dismissal with prejudice. Appellant has presented no sufficient reason for altering that decision.
V
Before concluding, we address one additional aspect of this case raised by appellant. Mullen argues that, because he is a pro se litigant, he should not be held to as strict a standard as a party represented by an attorney. Dr. Mullen is no stranger to the courts of this state or of the United States. He has frequently been involved in litigation. He has been represented by counsel, and he has appeared pro se. Mullen v. Academy Life Ins. Co., 705 F.2d 971 (8th Cir.1983), cert. denied sub nom, Beausang v. Mullen, ___ U.S. ___, 104 S. Ct. 101, 78 L. Ed. 2d 105 (1983) (pro se); Mullen v. United States, 696 F.2d 1000 (8th Cir. 1982) (decision without published opinion) (case No. 82-1846), motion to file petition for cert. out of time denied, 461 U.S. 921, 103 S. Ct. 2077, 77 L. Ed. 2d 292 (1983); Mullen v. Starr, 537 F. Supp. 945 (W.D.Mo. 1982), aff'd without published opinion, 696 F.2d 1000 8th Cir.1982) (case No. 82-2059), cert. denied, 461 U.S. 960, 103 S. Ct. 2434, 77 L. Ed. 2d 1320 (1983), reh'g. denied, ___ U.S. ___, 104 S. Ct. 415, 78 L. Ed. 2d 353 (1983) (pro se); Mullen v. Orr, 667 S.W.2d 8 (Mo.App.1984) (pro se); Wright v. Mullen, 659 S.W.2d 261 (Mo.App.1983) (represented by counsel); Dayringer v. Mullen, 651 S.W.2d 500 (Mo.App.1983) (represented by counsel); Mullen v. General Motors Corp., 640 S.W.2d 144 (Mo.App.1982) (pro se); Mullen v. Wise, 583 S.W.2d 250 (Mo. App.1979) (represented by counsel); Mullen v. Dike Development Co., Inc., 560 S.W.2d 337 (Mo.App.1977) (represented by counsel); Mullen v. City of Kansas City, 557 S.W.2d 652 (Mo.App.1977) (represented by counsel); Poorbaugh v. Mullen, 99 N.Mex. 11, 653 P.2d 511 (Ct.App.1982), cert. denied, 99 N.Mex. 47, 653 P.2d 878 (1982) (represented by counsel); Poorbaugh v. Mullen, 96 N.Mex. 598, 633 P.2d 706 (Ct.App.1981) (represented by counsel). Mullen has met with mixed results both when appearing on his own behalf and when represented by counsel. Further, Mullen has appeared as a witness, Weaver v. Finch, 306 F. Supp. 1185, 1189 (W.D.Mo. 1969) (use of letter stating diagnosis in disability case), and has had significant contacts with other litigation, [Delores] Mullen v. Roberts and Roberts Real Estate, Inc., 550 S.W.2d 588 (Mo.App.1977). Thus, Mullen is not the typical pro se litigant. We believe that the following comments by Federal District Judge Stevens, regarding pro se litigants in general and Dr. Mullen in particular, apply well to this case:
Despite the admonition, often stated by appellate courts, that pleadings of one appearing pro se should be construed liberally in favor of the pleader, those pleadings still "must set forth the claim in a manner which, taking the pleaded facts as true, states a claim as a matter of law." (Citation omitted) .... That constraint on the application of the rule of liberality is made even more telling in this case, where plaintiff [Dr. Mullen] has filed nine matters within three years in this court in which he has appeared pro se. The court takes notice of the fact that plaintiff has filed seventeen actions pro se in the Circuit Court of Jackson County, Missouri, since the 1976 court year and since 1965 has appeared as plaintiff in ten other suits in Circuit Court. Additionally, he has filed untold actions pro se in the Associate Circuit Court of Jackson County, Missouri.
This is not to say that plaintiff should be criticized for his apparent litigiousness. Free access to the courts is a keystone of our democratic society. However, rules of interpretation designed to serve the naivete and lack of legal sophistication of the customary pro se pleader do not necessarily apply to him whose favorite hobby at least, if not vocation, must be the writing of pleadings and filing of lawsuits.
Mullen v. Starr, supra, at 948-49. (Emphasis in original.)
*216 The judgment of the circuit court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920139/ | 447 N.W.2d 887 (1989)
In re Petition for DISCIPLINARY ACTION AGAINST Louis J. McCOY, an Attorney at Law of the State of Minnesota.
No. C3-85-27.
Supreme Court of Minnesota.
November 17, 1989.
*888 William J. Wernz, Director of the Office of Lawyers Professional Responsibility, Kenneth L. Jorgensen, Sr. Asst. Director, St. Paul, for appellant.
Louis J. McCoy, West St. Paul, pro se., for respondent.
OPINION
PER CURIAM.
Respondent Louis J. McCoy is before this court on a disciplinary matter for the third time since he was admitted to practice law in Minnesota in October, 1982. In 1985 we issued a public reprimand and placed him on probation for two years for misconduct involving a debt collection. On May 6, 1988 we indefinitely suspended him with no possibility of reinstatement for 18 months for neglecting client matters, misrepresentations to clients and noncooperation. Now, in response to a petition for further disciplinary action, filed by the Director of the Lawyer's Professional Responsibility Board on May 8, 1989, we order his disbarment.
Respondent signed a stipulation for dispensing with panel proceedings. When respondent failed to timely answer the Director's petition, the Director filed a motion for summary relief requesting that all allegations of the petition be deemed admitted pursuant to Rule 13(b), Rules on Lawyers Professional Responsibility (RLPR). Instead of filing an answer, the respondent submitted a petition for resignation on May 18, 1989. This court issued an order on June 21, 1989 denying that petition for resignation and deeming as admitted the allegations of the Director's petition. The respondent did not file a brief with this court, but did appear for oral argument.
Respondent was publicly reprimanded and placed on two years probation on October 18, 1985. Respondent had not responded to a client's inquiries concerning a judgment collection. After promising the client he would forward the funds already collected, respondent did not forward the funds until several months later. Respondent did not answer the Director's inquiries about the collection matter until the Director charged him with unprofessional conduct. In re McCoy, 375 N.W.2d 471 (Minn.1985).
The Director filed a petition for revocation of probation and for further disciplinary action on May 12, 1987. The petition alleged four counts of neglect of client matters and misrepresentations and a count of noncooperation. The first count alleged that a client, who was incarcerated at the time of representation, lost his home and visitation rights with his children due to respondent's neglect. The third count involved misrepresentations to his clients and opposing counsel in a labor dispute. These misrepresentations resulted in unnecessary hearings as well as inconvenience to all parties. The fourth count concerned respondent's neglect and misrepresentations in a contract for deed cancellation and a bankruptcy proceeding that resulted in his clients' loss of their home. Respondent failed to perfect an appeal in the fifth matter and lied about this to the client. As in the first proceeding, respondent failed to cooperate with the Director's investigation.
Respondent admitted the allegations but claimed at a hearing before a referee that *889 his neglect and misrepresentations were the result of being assigned by his law firm more work than he could handle. He stated he had recently gone into solo practice and would be able to control his workload. We rejected overwork as an excuse or even an explanation for the disregard of respondent's duties to his clients, the court and the Director and, adopting the referee's findings, indefinitely suspended respondent for a minimum of 18 months. In re McCoy II, 422 N.W.2d 731 (Minn.1988).
The misconduct that is the subject of this proceeding arose out of six cases that were pending at the time of respondent's suspension in 1988. These cases were brought to the Director's attention during and after the disciplinary proceedings that led to respondent's suspension. The Director now argues that this court would have imposed a more severe sanction if these additional matters had been before the court in 1988.
In the first matter respondent was retained to represent a client in a personal injury suit relating to an accident that occurred in December 1982. Respondent took no action on the case from 1982 to 1987. He failed to communicate with his client until the summer of 1987, then falsely told the client and the client's father, that he had brought suit. In September 1987 respondent asked the client to sign a release indicating the case had been settled for $6,500. The case had not been settled and such a settlement offer had never been made. The client's father, concerned about the statute of limitations, tried repeatedly to obtain his son's file from respondent after respondent's suspension. Respondent promised to return the file several times, but failed to do so and on three occasions failed to deliver the files to the father at prearranged meetings. A second attorney, retained by the father to bring suit on his son's behalf in December 1988 shortly before the expiration of the statute of limitations, was forced to file suit without original documents, such as the accident report, which respondent never returned. Respondent's conduct violated Rules 1.3, 1.15(b)(4), and 1.16(d), Minnesota Rules of Professional Conduct (MRPC), and Rule 26(d), RLPR.
The second matter involved a couple who retained respondent in 1985 to represent them in the husband's adoption of the wife's son. Respondent told the clients to bring the child and meet him at the Ramsey County Juvenile Center in May 1986 for an adoption hearing. The clients met respondent who told them to wait in the hallway while he went into the courtroom. When respondent came out of the courtroom, he falsely told the clients the adoption was completed except for the filing of one document. In fact, he had never filed an adoption petition and no adoption hearing had taken place in the courtroom. He performed no additional work on the adoption, did not respond to requests for information, and failed to return the clients' file despite several requests by the clients' new attorney. Respondent's conduct violated Rules 1.3, 1.4, 1.15(b)(4), 1.16(d), and 8.4(c), MRPC, and Rule 26(d), RLPR.
In a third matter respondent represented a client in collecting a judgment for unpaid child support. He collected various amounts between 1985 and 1988, but part of the judgment remained unsatisfied. Respondent made no accounting to the client. He did not reply to the client's letter of inquiry, nor did he return the client's file when he was suspended even though the Director requested its return. Respondent's conduct violated Rules 1.15(b)(4), 1.16(d), MRPC, and Rule 26(d), RLPR.
In the fourth matter a client retained respondent in April 1986 to represent her son in a personal injury action. The client made repeated requests for the return of her son's file so that she could retain substitute counsel. Respondent did not reply to her requests. Respondent's conduct violated Rules 1.15(b)(4), 1.16(d), MRPC, and Rule 26(d), RLPR.
In the fifth matter respondent was retained in April 1986 to represent a client in a housing discrimination claim. According to statute, an action must be filed within 300 days of the discriminatory events. Respondent falsely told the client several times in 1986 that he had filed suit and that *890 an action was pending in Ramsey County District Court. Respondent did not commence suit within the statute of limitations. He did not return the client's file. In June 1988 the client brought a legal malpractice action against respondent and the law firm where he was previously employed. Respondent failed to produce the client's file even after being served with a request for production of documents and failed to appear at a hearing to compel discovery. When the court ordered respondent to respond to the request for the production of documents, he claimed that he did not have the file. His former law firm stated in their response to the litigation that respondent took the file with him when he left the firm. Respondent's conduct violated Rules 1.3, 1.4, 1.15(b)(4), 1.16(d), 3.4(c) and 8.4(d), MRPC, and Rule 26(d), RLPR.
In the sixth matter a client retained respondent to appeal a discrimination suit in United States District Court. Respondent filed the notice of appeal, but did not file the required designation of record. The chief deputy wrote to respondent notifying him that the appeal would be dismissed unless a designation of record was filed within 15 days. When respondent failed to file the designation of record, the appeal was dismissed. Respondent's conduct violated Rule 1.3, MRPC.
Finally, respondent failed to cooperate with the ethics investigation. He failed to respond to 14 letters from the Director's office requesting written responses in the client matters discussed above. He did not return his clients' files and papers after his suspension and he failed to file the affidavit required of suspended attorneys under Rule 26(e), RLPR.
We have said many times that the purpose of attorney discipline is not to punish the attorney, but to protect the public and deter future misconduct. In re Jensen, 418 N.W.2d 721, 722 (Minn.1988). In determining the appropriate discipline, we carefully consider the nature of the misconduct, the cumulative weight of the disciplinary violations and the harm to the public and the legal profession. In re Schaefer, 423 N.W.2d 680, 683 (Minn.1988). The factors to be examined include the number of clients harmed, the extent of the clients' injuries, prior misconduct and discipline and any mitigating circumstances. In re Flanery, 431 N.W.2d 115, 118 (Minn.1988). Although prior cases may be helpful by analogy, each case must be decided on its unique facts and circumstances. In re Logan, 442 N.W.2d 312, 316 (Minn.1989); In re Madsen, 426 N.W.2d 434, 436 (Minn. 1988).
Multiple incidents of neglect of client matters, misrepresentations, failure to return client files and papers, failure to respond to a court order, and failure to cooperate in a disciplinary investigation warrant stringent discipline. We have imposed severe sanctions in cases involving repeated instances of client neglect. In Flanery, for example, where the attorney neglected 10 matters involving seven clients, the discipline imposed was an indefinite suspension for five years. 431 N.W.2d at 118. In Logan, 442 N.W.2d 312, we ordered indefinite suspension. Respondent's neglect of client matters, misrepresentations and noncooperation, though similar to Logan, continued for a longer period of time and are more serious. Also, Logan had practiced successfully for about six years before she began neglecting client matters in 1987 and had no prior disciplinary history. In contrast, respondent has appeared before this court in three separate disciplinary proceedings in his seven years of practice, the first appearance being three years after his admission to the bar.
We ordered disbarment in another case involving an attorney who appeared before the court in three separate disciplinary proceedings. In re Braggans, 280 N.W.2d 34 (Minn.1979). Braggans was disbarred because of numerous instances of client neglect and for continuing the general practice of law after being ordered to close his office and limit his practice to certain specified financial institutions. He raised no defenses and presented no mitigating circumstances to justify a lesser sanction.
Respondent's clients suffered monetary and nonmonetary injuries as a result of *891 respondent's neglect, misrepresentations and failure to return files. Two clients had to obtain new attorneys to represent them. Two other clients will need to retain substitute counsel. Respondent did not return documents such as accident reports and correspondence needed by clients to pursue their claims. One client lost his cause of action because respondent failed to file suit within the statute of limitations. Another client's appeal was dismissed because respondent failed to file the necessary documents. Other clients believed the adoption of their child had been completed. This harm to clients alone warrants disbarment. Beyond that, respondent's failure to cooperate with the Director in the disciplinary investigation constitutes a separate act of misconduct. In re Cartwright, 282 N.W.2d 548, 552 (Minn.1979).
During the pendency of this disciplinary proceeding respondent submitted a petition for resignation which we denied. As we have previously noted, this court will not entertain petitions for resignation while disciplinary petitions alleging serious misconduct are pending. See In re Jones, 383 N.W.2d 303, 307 (Minn.1986). When a lawyer's flagrant violations of professional responsibilities justify disbarment, resignation will not be allowed. In re Johnson, 290 N.W.2d 604, 606 (Minn.1980); In re Hetland, 275 N.W.2d 582, 584-85 (Minn. 1978). To permit a lawyer to resign when disbarment is clearly called for would not serve the ends of justice nor deter others from legal misconduct. Johnson, 290 N.W.2d at 585; In re Streater, 262 Minn. 538, 543-44, 115 N.W.2d 729, 733 (1962).
Respondent presented no mitigating circumstances in this or any prior disciplinary proceeding. Despite being disciplined twice within a three-year period, he has made no attempt to conduct himself with the high degree of integrity and diligence expected of a lawyer. In fact, respondent has never accepted responsibility or expressed remorse for the harms his clients suffered due to his inexcusable misconduct.
Accordingly, we order that respondent Louis J. McCoy be, and hereby is, disbarred from the practice of law in the State of Minnesota. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920150/ | 133 N.J. Super. 427 (1975)
337 A.2d 371
BENJAMIN MOORE & COMPANY, PETITIONER-APPELLANT,
v.
CITY OF NEWARK, RESPONDENT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued January 7, 1975.
Decided April 15, 1975.
*428 Before Judges HALPERN, CRAHAY and ACKERMAN.
Mr. Carl G. Weisenfeld argued the cause for appellant (Messrs. Hannoch, Weisman, Stern & Besser, attorneys; Mr. Dean A. Gaver, on the brief).
Mr. Donald S. Coburn, Assistant Corporation Counsel, argued the cause for respondent (Mr. Donald E. King, attorney; Mr. Melvin Simon on the brief).
The opinion of the court was delivered by CRAHAY, J.A.D.
Benjamin Moore & Company (the taxpayer) owns in excess of eight acres of land in the City of Newark (Newark) on which are situated, in the main, 14 older multi-storied buildings utilized in the manufacture of paints and allied products. In this appeal it challenges the assessed valuations for the real property for the years 1970, 1971 and 1972 entered as final judgments in the Division of Tax Appeals. The hearing in the Division was bifurcated and the record essentially consists of the testimony of the taxpayer's expert, Charles Evans, taken on October 9, 1973, and that of the city's expert, Jack Birnholz, taken on December 18, 1973. At the conclusion of Birnholz's testimony the Division judge in an oral opinion entered the challenged assessments. The taxpayer's motion for a rehearing, alleging errors in the Division opinion, was denied.
Perceiving insufficient credible evidence in the record to support the Division's findings, and further finding that the conclusions do not fairly relate to the record, we are constrained to reverse the judgments under review and remand the matter for further proceedings. As was the case in Van Realty, Inc. v. Passaic, 117 N.J. Super. 425 (App. Div. 1971), we have here, plainly and simply, no adequate "findings of fact" nor any analytical expression of the basis which, applied to the found facts, led to the holdings below.
*429 The hope expressed in Van Realty that the reversals there might serve to alert the Division to its duty to make adequate findings of fact and to express reasons for its decisions has not been fulfilled. We reiterate that there is a compelling need for quasi-judicial and administrative agencies to understand what constitutes adequate findings of fact, the practical reasons why they are mandated, the distinctions between ultimate and basic facts, and the necessity that the findings have evidentiary support.
Applying the Van Realty principles to the record before us we observe that the findings here were in the main conclusionary and lacked meaningful reference to the testimonial background.
By way of illustration only, we note that both expert witnesses were held by the Division judge to be highly competent but that they reached different appraisals of the property. The taxpayer's expert, Evans, employed both the market data approach (comparative sales) as well as the reconstruction cost approach in arriving at his valuations, although he heavily stressed the former methodology. The municipality's expert, Birnholz, relied on the comparative sales approach in ascertaining the value of the land but did not employ that method in the overall evaluation of the "industrial manufacturing complex", using instead the cost of reproduction less depreciation method of valuation. The Division judge observed in his opinion and in our view incorrectly that the experts substantially relied on the reconstruction cost approach in the evaluation of improvements. It strikes us that thereafter he undertook a seemingly gratuitous and conclusionary acceptance of the municipality's theories. (We note that Birnholz ultimately conceded that the reproduction cost method in the instant premises had little bearing on fair market value the keystone to property evaluation. N.J.S.A. 54:4-23.) We see little record support for the reproduction cost analysis urged by Birnholz and accepted by the tribunal below, and *430 no critical or comprehensive analysis of the comparative market approach employed by Evans with considerable record support. In re Appeal of the City of East Orange, 103 N.J. Super. 109 (App. Div. 1968). The failure by the judge below to analyze or meaningfully consider Evans' testimony is rendered inexplicable in view of his observations on the motion for rehearing
I would like at this time to say that I have the utmost and highest regard for Mr. Evans as a real estate expert. I believe that he is, if not the best, certainly one of the highest regarded appraisers in the State of New Jersey. I believe that he is extremely good because of two things: in my experience with him, he has always been factually accurate and he has always been an advocate in that he has the ability to put his best foot forward when it comes to the presentation of those facts, but the facts are always accurate. There is no place in any portion of my decision which I have attempted, nor would I attempt to discredit his facts. I may disagree with the conclusion that he arrives at from those facts; I may think that he has highlighted some facts and ignored some other facts, but the factual presentation he makes, in my opinion, is always correct.
But still not a relevant word as to why he "disagreed" with Evans' "conclusions" in the matter.
As to the land assessments, Evans gave a value of $151,300. Birnholz counter-opined the value of land at $447,000, which figure was substantially adopted by the Division judge, but again without any critical analysis and based upon purported comparable sales which were not in our view readily relatable to the instant premises. Compare In re Appeals of Kents 2124 Atlantic Ave., Inc., 34 N.J. 21 (1961).
It appears that Birnholz, on behalf of the municipality, identified one of the taxpayer's buildings as including 82,250 square feet of space. The fact is that that building contained only 54,242 square feet. Birnholz conceded his error in this regard, having included 28,008 square feet of space on the second and third floors of the involved building when in fact there were simply no such floors. The taxpayer argued and persuasively that by employing *431 Birnholz's figures the overevaluation amounted to $122,450. The Division judge did not employ Birnholz's square footage figures when the mistake was called to his attention but rather reduced the total result in value by the sum of $77,000. Although we do not imply that the $122,450 should have been accepted, there is no record support whatever for the attempted adjustment.
Lastly, we note that the oral opinion is completely silent as to any reasons for not considering Evans' testimony respecting the record's reference to bulkheading, deterioration and mudjacking costs as they relate to the situs in question.
The above cited examples are utilized by us only to point up what we regard to be an abdication by the Division of its function in ascertaining true value.
N.J.S.A. 54:2-16 mandates that findings of fact and decisions by the Division shall in all cases be reduced to writing. We are of the view that if the requirement of that enactment had been honored here, that task might have resulted in a finding of specific facts, supported by an expression of reasoning, with a conclusion that might well have been a true value different from that allegedly supporting the challenged assessments.
Accordingly, we remand for further proceedings consistent with the views expressed herein and for the recordation of findings and conclusions so that "he who reads them is made aware of the cause by which it [the Division] was brought to its decision." In re Mutual Benefit Life Ins. Co., 35 N.J. Super. 113 (App. Div. 1955); In re Central Railroad Co. of N.J., 29 N.J. Super. 32, 39 (App. Div. 1953).
Reversed and remanded. We do not retain jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920154/ | 115 N.H. 179 (1975)
HAROLD C. WELCH
v.
ROLAND E. BERGERON
No. 6702
Supreme Court of New Hampshire
April 30, 1975
*180 Winer, Lynch, Pillsbury & Howorth (Mr. Robert W. Pillsbury orally) for the plaintiff.
Leo R. Lesieur, by brief and orally, for the defendant.
KENISON, C.J.
Plaintiff brought an action to recover damages for false imprisonment and malicious prosecution resulting from a criminal complaint against him signed by defendant in 1971. Trial by jury resulted in a verdict for defendant. Mullavey, J., reserved and transferred plaintiff's exceptions to various rulings of the trial court. The questions in this appeal are whether the trial court erred in dismissing the count for false arrest, in making certain evidentiary rulings and in failing to give several jury instructions.
Since 1960 defendant, Roland E. Bergeron, has been a part-time building inspector for the town of Litchfield, New Hampshire. For about twenty years plaintiff, Harold C. Welch, has been a builder of homes in the vicinity of Nashua, New Hampshire, including the town of Litchfield. In the course of pursuing their respective professions, plaintiff and defendant have had several less than amicable contacts.
In the evening of April 14, 1969, a dispute developed between Welch and Bergeron concerning the issuance of a building permit during which Welch became irate, calling Bergeron a "son of a bitch" and threatened to "get [him] one way or another." Later that night Bergeron returned to his car to find that the mouth of his gas tank had been plugged with cement. During a dispute over the suitability of a septic system on August 1, Welch became angry again, threatening that he was "going to make arrangements to have [Bergeron ] taken care of."
At about 1 a.m. on August 13, 1969, flammable liquid in a glass container was thrown through a window of Bergeron's home on Route 3-A in Litchfield. Although defendant saw a car drive away, he was unable to identify either the car or the driver. That night at about 6 p.m., Bergeron received an anonymous telephone call, telling him to " [l ]ay off builders. Next time it will be a bomb." In September and November, Bergeron and his family received additional anonymous, threatening calls.
More than one year later in September 1970, a former employee of Welch, Jules Champagne, told Bergeron that Welch had offered him $200 to harm Bergeron's person or damage his dwelling house. *181 Acting on the advice of his attorney, defendant spoke with an assistant attorney general on September 16. Although Bergeron had not requested a complaint to be drawn, he signed a complaint for Welch's arrest at the Nashua District Court on June 24, 1971.
Pursuant to the complaint Welch was arrested for attempted arson in June 1971 and was incarcerated for about three hours. At a preliminary hearing at the Nashua District Court on July 15, no probable cause was found. As a result of a grand jury indictment for attempted arson in September 1971, Welch was tried in Hillsborough County Superior Court, but the action was dismissed at the end of the State's case.
I. Dismissal of the Count for False Imprisonment
Plaintiff argues that the trial court erred in dismissing the count for false imprisonment. False imprisonment has been defined as the unlawful restraint of an individual's personal freedom. W. Prosser, Torts § 11, at 42 (1971); Hickox v. J.B. Morin Agency, Inc., 110 N.H. 438, 442, 272 A.2d 321, 323 (1970); 1 F. Wharton, Criminal Law and Procedure § 385, at 750 (R. Anderson ed. 1957). An essential element of the offense is the absence of valid legal authority for the restraint imposed. W. Prosser supra; 4 F. Wharton, Criminal Law and Procedure § 1585, at 229 (R. Anderson ed. 1957).
It is the plaintiff's position that his arrest in June 1971 lacked valid legal authority because the complaint was rendered void on its face by its failure to state facts sufficient to constitute the offense of attempted arson. See 4 F. Wharton, Criminal Law and Procedure § 1586, at 231 (R. Anderson ed. 1957). The criminal complaint alleged in part that defendant "did hire a person or persons unknown to willfully and maliciously set fire to the dwelling house of one Roland Bergeron for a sum of money, that as a result thereof a flammable liquid in a glass container was thrown through a window of Bergeron's dwelling house ...." The trial court correctly dismissed the count for false imprisonment since the complaint was valid under the relevant statutes applicable at the time when the offense was committed. Laws 1942, 459:7 (RSA 590:7, repealed November 1, 1973); see RSA 629:1 I; RL 96:1 (RSA 584:1, superseded by RSA 634:1 I, November 1, 1973); see State v. Inselburg, 114 N.H. 824, 827, 330 A.2d 457, 460 (1974); Hickox v. J.B. Morin Agency, Inc., 110 N.H. 438, 442-43, 272 A.2d 321, 324 (1970).
*182 II. Evidentiary Rulings
Plaintiff further maintains that the trial court erred in admitting allegedly irrelevant testimony by the defendant that the mouth of his car's gas tank was filled with cement on April 14, 1969, and that he received anonymous, threatening telephone calls in August. To be admissible into evidence testimony must have some tendency to establish a fact of consequence to the determination of the action. J. McCormick, Evidence § 185, at 437 (E. Cleary ed. 1972); 1 J. Wigmore, Evidence § 9, at 289 (1940); see Fed. R. Evid. 401, 402; James, Relevancy, Probability and the Law, 29 Calif. L. Rev. 686, 690-91 (1941).
In an action for malicious prosecution an element essential to a resolution of the case is a showing that the criminal proceeding was initiated by the defendant without probable cause. W. Prosser, Torts § 119, at 841 (1971); MacRae v. Brant, 108 N.H. 177, 180, 230 A.2d 753, 755 (1967); 1 F. Harper and F. James, Law of Torts § 4.5, at 311 (1956). In light of the repeated threats made by the plaintiff against the defendant in April and in August 1969, Bergeron's testimony regarding events that happened to him during that period was relevant to his reasonable belief in Welch's guilt, and, therefore, the trial court did not err in admitting it. Id.; see Cohn v. Saidel, 71 N.H. 558, 564, 53 A. 800, 803 (1902).
Plaintiff also contends that evidence regarding who prepared the complaint signed by the defendant should have been excluded by the trial court since it was immaterial. Materiality is a necessary aspect of relevancy: evidence offered to prove a fact that is not in issue is immaterial. J. McCormick, Evidence § 185, at 434 (E. Cleary ed. 1972); see James, Relevancy, Probability and the Law, 29 Calif. L. Rev. 689, 690-91 (1941). To succeed in his action for malicious prosecution, plaintiff had the burden of proving that defendant instituted the criminal proceeding "maliciously". Robinson v. Fimbel Door Co., 113 N.H. 348, 350, 306 A.2d 768, 769 (1973); W. Prosser, Torts § 119, at 847 (1971); 1 F. Harper and F. James, Law of Torts § 4.6, at 320 (1956). Testimony that the defendant did not ask the attorney general's office to prepare the complaint against plaintiff was material to the jury's determination whether the defendant acted with malice. W. Prosser, supra at 848; F. Harper and F. James, supra at 322-23.
In addition, the plaintiff claims that the trial court erred in excluding evidence that the charge of attempted arson against him was dismissed at the end of the State's case in the superior court. Since *183 the trial court grounded its decision on the fifth stipulation of the pretrial order which stated that "plaintiff's claim ... is not based on the fact that the indictment in the superior court was dismissed at the conclusion of the prosecution's case", there was no error in the exclusion. RSA 491:App. R. 59(a) (3), (b) (Supp. 1973); see Fed. R. Civ. P. 16(3); 3 J. Moore, Federal Practice § 16.19, at 1130 (1974) (Supp. 1975, at 104); M. Rosenberg, The Pretrial Conference and Effective Justice 8 (1964).
III. Failure to Give Requested Jury Instructions
Finally, plaintiff argues that the trial court erred in failing to give several jury instructions. Since testimony elicited by the court itself indicated that the defendant did not ask the attorney general to prepare the criminal complaint against the plaintiff, it would have been contrary to the evidence for the trial court to have instructed the jury as requested that "Roland E. Bergeron procured and instituted criminal proceedings against plaintiff, Harold C. Welch."
Plaintiff also asked the court to instruct the jury that the district court's failure to find probable cause that he committed the crime of attempted arson is prima facie evidence that the defendant lacked probable cause to charge him with the crime. (Plaintiff's Request for Instructions, No. 3). In the absence of other evidence of probable cause, a discharge by a magistrate upon a preliminary hearing is conclusive of the lack of probable cause. W. Prosser, Torts § 119, at 845 n.35 (1971); Restatement of Torts § 663 (1) (1938, Supp. 1965, at 291); Annot., 59 A.L.R. 2d 1413, 1422 (1958); 1 F. Harper and F. James, Law of Torts § 4.5, at 318 (1956). In this case, however, the subsequent indictment of the plaintiff by the Hillsborough County grand jury and the testimony of several witnesses that plaintiff made repeated threats against defendant just prior to the attempted arson on August 13, provided sufficient evidence of probable cause to sustain the trial court's refusal to give the requested instruction. See W. Prosser, Torts § 119, at 844 (1971); Restatement of Torts § 664 (2) (1938, Supp. 1965, at 292); Annot., 59 A.L.R. 2d 1413, 1436 (1958); 1 F. Harper and F. James, Law of Torts § 4.5, at 318 (1956); Perreault v. Lyons, 99 N.H. 169, 170, 106 A.2d 380, 381 (1954).
While it is the rule that an inference of malice may be drawn from a lack of probable cause, the trial court's failure to so instruct the jury was not erroneous in this case since the plaintiff did not *184 specifically request an instruction to that effect and because its instructions adequately informed the jury on the essential elements of the law governing the case. See Coos Lumber Co. v. Builders Lumber and Supply Co., 105 N.H. 323, 326-27, 199 A.2d 545, 547 (1964); Restatement of Torts § 669 (1938, Supp. 1965, at 296); Cohn v. Saidel, 71 N.H. 558, 565, 53 A. 800, 804 (1902).
Exceptions overruled; judgment for the defendant.
DUNCAN, J., and GRIFFITH, J., did not sit; the others concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920159/ | 337 A.2d 493 (1975)
Nell K. SMITH, Appellant,
v.
Earl BROOKS and Nathaniel Mitchell, Appellees.
No. 8885.
District of Columbia Court of Appeals.
Submitted March 27, 1975.
Decided May 7, 1975.
*494 Thomas J. Barger, Jr., law student counsel, and John E. Scheuermann, Washington, D. C., were on the brief for appellant.
No appearance was entered for appellees.
Before NEBEKER and YEAGLEY, Associate Judges, and HOOD, Chief Judge, Retired.
PER CURIAM:
An automobile owned by appellee Brooks and operated by appellee Mitchell was in a collision with an automobile owned and operated by appellant Smith. Brooks and Mitchell sued Smith for the damage to Brooks' car, and Smith counterclaimed for the damage to her car. The trial court awarded judgment to Brooks and Mitchell,[1] and we granted Smith's application for allowance of an appeal.[2]
The single question raised on appeal relates to the amount of damages awarded appellees. The evidence as to damages was that the car, a 1966 Chevelle, was damaged from its left front fender down the left side to the left rear fender, and the estimated cost of repairs was $700.01. At the time of the collision (December 1973), the car was in "tip-top shape" with no mechanical problems, and its value, according to the National Automobile Dealers Association Official Used Car Guide, was $525.00. There was no evidence that the car had been repaired or that it was not usable in its damaged condition.[3]
Finding that "the value of the 1966 Chevelle was in excess of the amount listed in the N.A.D.A. Official Used Car Guide," the trial court awarded appellees judgment for $700.01.
In this jurisdiction, and generally elsewhere, the basic rule for measure of damages for injury to personal property is the difference in value of the property immediately before and after the injury. An alternative measure is the reasonable cost of repairs to restore the damaged property to its former condition. "But when it appears that the cost of repairs approaches and perhaps exceeds the value of the chattel prior to injury, there should be proof that the repairs may be reasonably made, i. e., that the cost thereof will neither exceed the diminution in value caused by the injury nor exceed the value prior to injury." Knox v. Akowskey, D.C.Mun.App., 116 A.2d 406, 408 (1955).
Here the only evidence of the value of the car prior to injury was the Used Car Guide value of $525.00. The trial court's basis for finding that the value exceeded that amount is not readily apparent, but it is evident that the cost of repairs ($700.00) approached and perhaps exceeded the value of the car prior to injury. Consequently, it was necessary, under the rule above stated, to prove that the cost of repairs neither exceeded the diminution in value caused by the injury nor the value of the car prior to injury.
Reversed with instructions to grant a new trial limited to the issue of the amount of damages.
NOTES
[1] There is no explanation in the record of why Mitchell, the operator of Brooks' car, was joined as plaintiff with Brooks or why the judgment was awarded to them jointly. The only claim was for damage to Brooks' car.
[2] D.C.Code 1973, § 17-301.
[3] Appellant's brief improperly recites much testimony and evidence allegedly received at trial, but which is not in the record on appeal. We are bound by the record and cannot consider matters of fact stated in a brief but unsupported by the record. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920176/ | 67 N.J. 268 (1975)
337 A.2d 609
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BETTY NORFLETT, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued March 3, 1975.
Decided May 8, 1975.
*272 Mr. William L. Roughton, Jr., Assistant Deputy Public Defender, argued the cause for defendant-appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. Edward P. Hannigan, Assistant Deputy Public Defender, of counsel).
Ms. Jane E. Deaterly, Deputy Attorney General, argued the cause for plaintiff-respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Marc J. Friedman, Deputy Attorney General, of counsel).
The opinion of the Court was delivered by PASHMAN, J.
This appeal requires us to consider the impact of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), upon our abortion statute in *273 the context of a criminal conviction of a layman performing an abortion upon an unmarried minor. We conclude that defendant's conviction must be affirmed.
Betty Norflett was indicted on three counts charging her with performing an abortion without lawful justification, atrocious assault and battery by reason of the abortion, and contributing to the delinquency of a minor. Defendant moved for dismissal of the indictment on the grounds that the New Jersey abortion statute was unconstitutional which motion was denied.
The State's principal witness, the victim of the abortion, was a 17-year-old high school student when the procedure was performed. She testified that she had gone to a physician's office for a pregnancy test in December 1972 and while she was waiting to see the doctor defendant approached her asking if she was there for a pregnancy test.[1] When the witness responded in the affirmative, defendant replied that she was the one to see if the witness did not want the child. Later, in the doctor's office, defendant came in and gave her a piece of paper with her name and address on it. Following the examination which confirmed the witness's pregnancy, defendant offered her a ride home, and in the car told her to call that night to make further arrangements.
The witness and defendant ultimately agreed on a fee of $100 for the abortion, half of which the witness paid defendant in advance.[2] The abortion was attempted on the following Wednesday at the witness's brother's apartment; after the procedure, defendant only told the witness to drink hot liquids and take aspirin. The witness subsequently paid an additional $25 in two installments. When she expressed concern *274 about whether the abortion was successful, defendant agreed to repeat the procedure.
On Friday of the next week, defendant again attempted to abort the witness, this time at defendant's residence. The witness observed blood on the following day but experienced no further difficulty until early January, when she began to bleed again. The bleeding continued, and finally on a Friday in mid-January, the witness's discomfort became so acute that she was forced to leave her supermarket job early.[3] Fearful of her parents' reaction to the abortion, however, the witness told her father that she was suffering from constipation. She continued the deception when she was examined at a hospital that evening and, consequently, the witness was sent home after receiving a prescription.
The next evening, however, the pain became so severe that the witness could not lie down or sit down and she finally told her mother the truth.[4] The witness was immediately taken to the hospital where her condition was diagnosed as a possible incomplete septic abortion. She was given large doses of penicillin and then a dilation and curetting of the uterine cavity was performed, resulting in the removal of a 12-14 week old fetus.[5] The witness was confined to the hospital *275 for three days and subsequently missed two months of school.
At the close of the State's case, the trial court dismissed the count of the indictment charging defendant with atrocious assault and battery on the ground that the evidence failed to establish a prima facie case. The court, however, declined to grant defendant's motions for acquittal on the other two counts.
Defendant elected to testify on her own behalf. Although she admitted that she had spoken to the witness in December 1972, she denied performing the abortion or having any knowledge about it. According to defendant, the witness came to her home seeking her help as a community worker. When she learned that the witness was pregnant, defendant claimed that her only advice was to tell her mother and go to Planned Parenthood. The defense stipulated that defendant is neither a physician nor a nurse. On cross-examination she admitted that she had never had any medical training whatsoever, not even a first aid course.
The jury convicted her on both remaining counts of the indictment.
The defense moved for a new trial in October 1973 on the ground that the verdict was against the weight of the evidence, contrary to law and a manifest denial of justice. The court denied the motion and sentenced defendant to a term of 3-5 years on the abortion count and a term of 1-3 years on the count charging her with contributing to the delinquency of a minor. The sentences were to be served concurrently at the New Jersey Correctional Institution for Women.
While the matter was pending unheard in the Appellate Division, we certified the appeal directly to this Court pursuant to R. 2:12-1, 67 N.J. 105 (1975), to consider the propriety of defendant's prosecution and conviction under our abortion statute in light of Roe and Doe, supra.
*276 I
Defendant has consistently argued that our abortion statute, N.J.S.A. 2A:87-1[6] has been invalidated completely as a result of Roe and Doe, supra, and Y.W.C.A. v. Kugler, 342 F. Supp. 1048 (D.N.J. 1972), vacated and remanded, 475 F.2d 1398 (3 Cir.1973), judgment reinstated, Civil No. 264-70 (D.N.J. July 24, 1973), aff'd mem., 493 F.2d 1402 (3 Cir.1974), cert. den., 415 U.S. 989, 94 S. Ct. 1587, 39 L. Ed. 2d 885 (1974). Thus, she contends that her prosecution and conviction pursuant to the statute were improper. The State, in addition to denying the validity of her contentions on their merits, questions the standing of this defendant to raise these constitutional issues.
Defendant's attack on N.J.S.A. 2A:87-1 is essentially twofold. Relying on Roe, Doe and Kugler, she, seeking to assert the constitutional right of pregnant women to obtain abortions, advances the defense that the statute is unconstitutional in toto and is impermissibly vague. While we entertain serious doubts that this defendant has standing to raise these issues,[7] we decline to resolve this appeal on procedural *277 grounds in the belief that the public interest requires us to consider the impact of Roe and Doe upon our abortion statute, at least insofar as it is applied to abortions performed by individuals without medical training. See Busik v. Levine, 63 N.J. 351, 363-64 (1973), appeal dismissed, 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973).
The United States Supreme Court has recognized that the question of the legality of abortions is an issue of constitutional dimensions. In two cases decided the same day, the Court sought to reconcile the conflict between the individual's right to privacy in deciding to terminate a pregnancy and the state's interest in promoting maternal health and prenatal life. In Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the Court considered a constitutional attack on the Texas abortion statute by, among others, a single woman who desired to terminate her pregnancy by a "`competent, licensed physician, under safe, clinical conditions'", 410 U.S. at 120, 93 S. Ct. at 710. The statute under attack was, in the Court's view, similar to those in existence in a majority of the states, and made it a crime to "`procure an abortion'" as defined by the statute "except with respect to `an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.'" 410 U.S. at 117-18, 93 S. Ct. at 709.[8]
In striking down the Texas statute, the Court chose to rest its decision on the individual's privacy rights in making her election as to the abortion. Conceding that the Constitution does not explicitly recognize any right of privacy, the Court nonetheless concluded that:
The right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state *278 action as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. [410 U.S. at 153, 93 S. Ct. at 727].
The Court was quick to add, however, that a woman's right to terminate a pregnancy is not an unqualified one, but must be gauged against important state interests. The interests identified by the Court are the state's legitimate concern with the health of the mother and its interest in protecting the potentiality of human life. Although the Court stressed the distinct nature of these interests, it noted that "[e]ach grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes `compelling.'" 410 U.S. at 162-63, 93 S. Ct. at 731. Consequently, the Court held that with respect to the state's interest in maternal health, reasonable regulation of the abortion procedure is permissible after the end of the first trimester of pregnancy, but prior to this "`compelling' point,"
the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. [410 U.S. at 163, 93 S. Ct. at 732].
In the Court's view, however, the state's interest in preserving the prenatal life becomes compelling at a later point in the pregnancy. Reasoning that it is not until viability that the fetus becomes capable of "meaningful life outside the mother's womb," the Court concluded that it is only after the end of the second trimester that a state may proscribe abortion completely "except when it is necessary to preserve the life or health of the mother." 410 U.S. at 163-64, 93 S. Ct. at 732.
In the companion case, Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), the Court analyzed a constitutional attack on a Georgia abortion statute patterned on the American Law Institute's Model Penal Code, § 230.3 *279 (Proposed Official Draft 1962).[9] The issues in Doe, not pertinent in the instant appeal, focused primarily on the procedural requirements of the Georgia statute. Contrary to the approach of Roe, however, the Court declined to invalidate the statute in its entirety, excising only portions of the statute which remained after the district court's disposition.[10]
Since this case comes to us in the factual framework of a criminal conviction of a layman for performing an abortion, it is not necessary for us to reconsider N.J.S.A. 2A:87-1 broadly in the aftermath of Roe and Doe. Defendant's situation presents the narrower question of whether, in light of Roe and Doe, one without any medical training can be convicted under our statute. We conclude that to the extent that it authorizes the criminal prosecution of laymen for performing abortions, N.J.S.A. 2A:87-1 survives Roe and Doe.
Careful scrutiny of Roe reveals that even with respect to the first trimester of pregnancy, the Court contemplated that the woman seeking an abortion would exercise her right to privacy in making the decision only after consultation with a physician. Indeed, in summarizing its decision, the Court *280 specifically stated that even before the end of the first trimester "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." 410 U.S. at 164, 93 S. Ct. at 733 [emphasis supplied]. To avoid any possible misunderstanding the Court added:
The state may define the term "physician," as it has been employed in the preceding [numbered] paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. [410 U.S. at 165, 93 S. Ct. at 732].
The courts of other jurisdictions have also concluded that Roe and Doe do not preclude the enforcement of criminal abortion statutes against laymen. In People v. Bricker, 389 Mich. 524, 208 N.W.2d 172 (1973), for example, the Supreme Court of Michigan, "seek[ing] to save what we can of the Michigan statutes," Bricker, supra, 208 N.W.2d at 174, affirmed a layman's conviction for conspiracy to commit an abortion in a case decided shortly after Roe and Doe. The purpose of the statute at issue in Bricker was to proscribe all abortions "except those required to preserve [the life or] health of the mother." Bricker, supra, 208 N.W.2d at 175.[11] After acknowledging that the policy of the state, as evidenced by the abortion statute, must be subordinated to federal constitutional requirements, the court nonetheless concluded that the Michigan statute need not be stricken in its entirety:
The excision from the statute, by constitutional construction, of a certain class, viz., medical professionals, neither affects the balance of the classes coming within the ambit of the clear legislative intent nor exonerates the same from criminal responsibility. In short, we cannot accept as a necessary implication that, because doctors may perform abortions under prescribed circumstances, means that anyone who has or will perform an abortion can do so with impunity. [Bricker, supra, 208 N.W.2d at 175-76].
*281 In an Arkansas case, May v. State, 254 Ark. 194, 492 S.W. 2d 888 (1973), cert. den., 414 U.S. 1024, 94 S. Ct. 448, 38 L. Ed. 2d 315 (1973), the state supreme court reached a similar conclusion on the effect of Roe and Doe on the Arkansas abortion statute. Although the court in May reversed defendant's conviction on a charge of inducing an abortion on the grounds that he was denied the right to attack the credibility of some of the state's key witnesses, the court observed that Roe and Doe did not render the statute unconstitutional as applied to him:
The most salient aspect of both cases (Roe and Doe) for the purpose of the appeal in the case at bar is that the decisions in both Roe and Doe contemplate the performance of abortions only by licensed physicians. [May, supra, 492 S.W.2d at 889].
See also Spears v. Ellis, 386 F. Supp. 653 (S.D. Miss. 1974); People v. Norton, Colo., 507 P.2d 862 (1973) (Georgia-type statute, by implication); State v. Ingel, 18 Md. App. 514, 308 A.2d 223 (Ct. Spec. App. 1973) (Georgia-type statute, dictum); Spears v. State, Miss., 278 So.2d 443 (1973) (Georgia-type statute). Contra State v. Hultgren, 295 Minn. 299, 204 N.W.2d 197 (1973) (Texas-type statute); Commonwealth v. Jackson, 454 Pa. 429, 312 A.2d 13 (1973).[12]
A
Defendant, however, contends that even if Roe and Doe do not create a right to an abortion by a layman, the effect of those cases was to totally invalidate N.J.S.A. 2A:87-1. The major premise of defendant's argument that N.J.S.A. 2A:87-1 is totally invalid is the Court's statement in Roe *282 that "[o]ur conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall." 410 U.S. at 166, 93 S. Ct. at 733. Her minor premise is that the Supreme Court categorized N.J.S.A. 2A:87-1 in a footnote to the Roe opinion as a "Texas-type statute." See 410 U.S. at 118 n. 2, 93 S. Ct. 705. From these two propositions defendant draws the conclusion that the New Jersey statute, too, is completely invalid. We disagree.
In concluding that the Texas statute must fall as a unit, the Court was careful to add that this was necessary because the impermissible exception could not be stricken separately since that approach would leave a statute proscribing all abortions "no matter how medically urgent the case." 410 U.S. at 166, 93 S. Ct. at 733. Thus with respect to the Texas statute it is apparent that the Court had no opportunity to save the statute by judicial construction. In contrast, N.J.S.A. 2A:87-1 by its terms leaves this Court broad discretion in its construction. See State v. Moretti, 52 N.J. 182 (1968), cert. den., 393 U.S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968); Gleitman v. Cosgrove, 49 N.J. 22 (1967); State v. Brandenburg, 137 N.J.L. 124 (Sup. Ct. 1948).
Although this is our first opportunity to consider N.J.S.A. 2A:87-1 since Roe and Doe were decided, the Law Division confronted the same issue in State v. Haren, 124 N.J. Super. 475 (Law Div. 1973). Judge Larner rejected the arguments now advanced by defendant, declaring:
The contention of defendants that the statute must fall as a total unit because it does not make a distinction between laymen and physicians is therefore untenable. The statute is and can still remain as a viable basis for a criminal charge where it is sought to be applied to the acts of a layman unsupervised by a physician. Under such circumstances, the acts are "without lawful justification." [Haren, supra at 480].[13]
*283 While it is unnecessary in this case to tailor N.J.S.A. 2A:87-1 in detail to the mandate of Roe and Doe, it is clear that at least insofar as it applies to the prosecution of laymen, our statute remains intact in the wake of those cases.
B
Having concluded that N.J.S.A. 2A:87-1 survives Roe and Doe, at least as it applies to laymen, we must next consider defendant's contention that the phrase, "without lawful justification," is impermissibly vague.
In Papachristou v. Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972), the United States Supreme Court articulated the values which are at the foundation of a void for vagueness argument:
Living under a rule of law entails various suppositions, one of which is that "[all persons] are entitled to be informed as to what the state commands or forbids." [405 U.S. at 162, 92 S. Ct. at 843 (quoting from Lanzetta v. New Jersey, 306 U.S. 451, 452, 59 S. Ct. 618, 83 L. Ed. 888 (1939))].
See also Grayned v. Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); Cramp v. Board of Public Instruction, 368 U.S. 278, 287, 82 S. Ct. 275, 7 L. Ed. 2d 285 (1961); United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989 (1954); Jordan v. De George, 341 U.S. 223, 230-232, 71 S. Ct. 703, 95 L. Ed. 886 *284 (1951). See generally Note, 109 U. Pa. L. Rev. 67 (1960). Moreover, in Lanzetta, supra, the Court pointed out that an individual may not be required to speculate "at peril of life, liberty or property" about the meaning of penal statutes, 306 U.S. at 453, 59 S. Ct. at 618. Finally, Harriss, supra, makes it clear that the requirement for definiteness in criminal statutes is violated if it "fails to give a person of ordinary intelligence fair notice that his contemplated action is forbidden." 347 U.S. at 617, 74 S. Ct. at 812.
With these general principles in mind, we consider the vagueness argument in the context of the facts presented. In resolving this aspect of the case, we follow the approach of the United States Supreme Court in United States v. National Dairy Products Corp., 372 U.S. 29, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1963), a criminal prosecution under section 3 of the Robinson-Patman Act in which the district court dismissed the indictment on vagueness grounds. In reversing the dismissal, the Court declined to consider the vagueness issue in the abstract but rather focused its attention on the conduct of the defendant:
In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged. [372 U.S. at 33, 83 S. Ct. at 598].
We have previously considered and rejected the argument that N.J.S.A. 2A:87-1 is impermissibly vague in the context of criminal convictions for conspiracy to commit an unlawful abortion. In State v. Moretti, 52 N.J. 182 (1968), cert. den., 393 U.S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968), the defendants arranged to have an abortion performed by a layman upon an undercover investigator of the Essex County Prosecutor's Office. 52 N.J. at 185. In affirming the defendants' convictions,[14] we invoked National *285 Dairy Products, supra, and analyzed the defendants' vagueness argument from the perspective of the conduct for which they were convicted:
The only inquiry before us is whether these defendants had sufficient warning that their conduct was criminal. * * * Thus, a defendant whose conduct was such that he clearly could tell that it was prohibited will not be heard to say that the statute is overly broad and that another, in some hypothetical case, could be misled. [52 N.J. at 192 (emphasis in original)].
Applying that approach to the facts of the case, we concluded that the defendants "could not fail to be aware that the abortion they conspired to commit would violate the statute." 52 N.J. at 193-94. See also United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960); State v. Young, 57 N.J. 240, 253-54 (1970), cert. den., 402 U.S. 929, 91 S. Ct. 1527, 28 L. Ed. 2d 863 (1971) (addressing the issue in terms of standing).
We continue to adhere to the approach of Moretti, supra. We need not consider the vagueness issue in the abstract, or for purposes of this case pass on the meaning of "lawful justification" in the context of hypothetical factual situations. This defendant could not possibly be unaware that the term "without lawful justification," as used in N.J.S.A. 2A:87-1, at the very least means that an abortion must be performed by a licensed physician in the exercise of his medical judgment. Consequently, it is clear that it was not error for the trial court to exclude defendant's attempt to introduce evidence of justification for the instant abortion.
C
We also reject defendant's contention that N.J.S.A. 2A:87-1 cannot be invoked to prosecute her by reason of Y.W.C.A. v. Kugler, supra. In Kugler, a three-judgment district court granted a motion for summary judgment *286 declaring N.J.S.A. 2A:87-1 unconstitutional on vagueness and privacy grounds. On appeal, however, The Third Circuit vacated and remanded the case without published opinion, 475 F.2d 1398 (3 Cir.1973). On remand, the district court reconsidered its decision in light of Roe and Doe, and reaffirmed its prior decision in an unpublished opinion and order, Civil No. 264-70 (D.N.J. July 24, 1973). The case was again appealed, and on March 7, 1974 the Third Circuit affirmed the July 24, 1973 order of the district court without opinion, 493 F.2d 1402 (3 Cir.1974). The United States Supreme Court subsequently denied certiorari, 415 U.S. 989, 94 S. Ct. 1587, 39 L. Ed. 2d 885 (1974).
Of course, elementary considerations of judicial comity require us to give due respect to the decisions of the lower federal courts, particularly on questions involving the federal constitution. However, as we pointed out in State v. Coleman, 46 N.J. 16 (1965), cert. den., 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966), even with respect to federal constitutional issues, the state courts and lower federal courts occupy comparable positions:
In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court. [46 N.J. at 36].
See also State v. Shapiro, 122 N.J. Super. 409, 436 (Law Div. 1973); State v. Zito, 103 N.J. Super. 552, 557 (App. Div. 1968), aff'd 54 N.J. 206 (1969); State v. Speciale, 96 N.J. Super. 1, 7 (App. Div. 1967), certif. den., 50 N.J. 291 (1967).[15]
*287 We have considered Kugler, supra, but for the reasons we have previously developed in parts IA and B of this opinion, we decline to follow it.[16] Accordingly, we reject defendant's argument that no conviction can be sustained pursuant to N.J.S.A. 2A:87-1 in light of that decision.
II
We also conclude that defendant's conviction for contributing to the delinquency of a child, in violation of N.J.S.A. 2A:96-4,[17] must be affirmed, despite her argument *288 that submitting to an abortion is neither illegal, see In re Vince, 2 N.J. 443, 450 (1949), nor immoral.
In our view, State v. Blount, 60 N.J. 23 (1972) disposes of defendant's contention that her conviction on this count was improper. In Blount the Appellate Division reversed a conviction under N.J.S.A. 2A:96-4 because in its view, defendant's conduct did not result in the victim's becoming delinquent. State v. Blount, 114 N.J. Super. 211 (App. Div. 1971). We granted the State's petition for certification, 58 N.J. 597 (1971), and reversed the Appellate Division, reinstating defendant's conviction.
Our approach in Blount, buttressed by the legislative history of the statute, was based on the recognition that the section "was intended to prevent the exposure of a child to the danger of leading an immoral life." 60 N.J. at 28. Since the Legislature was concerned with preventing acts having the potential to cause delinquency as well as those which actually cause the child to become delinquent,[18] we construed N.J.S.A. 2A:96-4
to require only that the defendant's actions have a tendency to cause rather than result in a child's delinquency. It is true that the terms "causes" and "contributes," as used in the statute, apply only to cases where the child has become a delinquent because of the defendant's conduct or is a delinquent at the time of such conduct. However, the term "encourages" in the statute covers a case where the defendant's conduct has a tendency to cause delinquency whether or not delinquency in fact ensues. [60 N.J. at 27 (footnote omitted)].
Although Blount raised the issue as a question of first impression before this Court, our belief that N.J.S.A. 2A: *289 96-4 does not require an actual finding of delinquency is shared by most courts which have considered the problem under similar statutes, see generally, Annotation "Criminal liability for contributing to delinquency of minor as affected by the fact that minor has not become a delinquent," 18 A.L.R.3d 824, 827 (1968), and cases collected therein.
Examination of the evidence adduced in the present case in light of Blount, supra, satisfies us that the jury could reasonably have found that defendant's conduct had the tendency to cause the witness's delinquency. Since the trial court's instructions to the jury were wholly consistent with both Blount and the statutory definition of delinquency,[19] it follows that defendant's conviction on this count of the indictment must be affirmed. In holding that this defendant was properly convicted under N.J.S.A. 2A:96-4, we do not wish to be understood to mean that any abortion performed on a minor will be sufficient to establish criminal liability under the statute. A holding of such breadth is unnecessary, unwise and would raise serious constitutional questions under Roe and Doe, supra. What we do mean is that the evidence disclosed by this record, that is the solicitation and performance of an abortion upon a minor by a layman totally without medical training or experience, raised a fact issue which the jury could reasonably resolve by finding that defendant's conduct tended to cause delinquency as that term was defined by existing statutes. See n. 18, supra.
*290 III
Relying principally on her record of community service, defendant argues that her sentence is excessive. We disagree. The sentence imposed by the trial court is well below the maximum permitted by the Legislature. Of course, that fact alone does not end our inquiry, State v. Bess, 53 N.J. 10, 18 (1968); State v. Laws, 51 N.J. 494, 498-501 (1968), cert. den., 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968), but before we interfere with a sentence there must be "a clear showing of abuse of discretion." State v. Tyson, 43 N.J. 411, 417 (1964), cert. den., 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965), State v. Benes, 16 N.J. 389, 396 (1954); State v. Provoid, 110 N.J. Super. 547, 559 (App. Div. 1970). See also State v. Souss, 65 N.J. 453 (1974).
The present record discloses no such abuse; to the contrary, it is clear that in imposing a custodial sentence on defendant, the trial court carefully considered all relevant circumstances, including the nature of the offense, defendant's prior conviction for obtaining property by false pretenses and sentence, as well as the many letters submitted on behalf of defendant stressing her community work. Our evaluation of all the factors disclosed by this record satisfies us that the sentence imposed by the trial court was entirely proper and indeed best serves the ends of justice in this case. Accordingly, we decline to modify defendant's sentence.
Affirmed.
For affirmance Chief Justice HUGHES, Justices MOUNTAIN, SULLIVAN, PASHMAN, CLIFFORD and SCHREIBER and Judge CONFORD 7.
For reversal None.
NOTES
[1] Although the witness testified that she had seen defendant on the street, she had never had any previous personal contact with her. Defendant was also a patient of the physician who examined the witness.
[2] The witness also stated that although she initially represented her age as 21, she later told defendant her true age.
[3] The witness stated that at this point she "was having all kinds of pain and I had been bleeding for a long time."
[4] When asked why she finally told her parents the truth, the witness responded:
Because I couldn't stand the pain and I couldn't get in touch with Miss Norflett and if I kept lying to the doctors, they couldn't help me.
[5] The treating physician testified that the witness's cervix was approximately 80% defaced when he examined her, indicating that she was having labor. The doctor added, however, that it was not possible to tell from an internal examination whether a hard instrument had been used on the patient. When he was questioned about his diagnosis of the patient's condition, the doctor testified that although he could not verify an infection, he treated the witness on the assumption that she was suffering from a septic abortion, a condition which can kill the patient.
[6] N.J.S.A. 2A:87-1 provides:
Any person who, maliciously or without lawful justification, with intent to cause or procure the miscarriage of a pregnant woman, administers or prescribes or advises or directs her to take or swallow any poison, drug, medicine or noxious thing, or uses any instrument or means whatever, is guilty of a high misdemeanor.
If as a consequence the woman or child shall die, the offender shall be punished by a fine of not more than $5,000, or by imprisonment for not more than 15 years, or both.
[7] Our doubt concerning defendant's standing to assert the privacy rights of pregnant women in her defense is predicated on the general principle that normally an individual will only be permitted to seek judicial vindication of his own rights. See, e.g., Barrows v. Jackson, 346 U.S. 249, 255, 73 S. Ct. 1031, 1034, 97 L. Ed. 1586 (1953):
Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party.
See generally 3 Davis, Administrative Law, § 22.07 at 232 (1958).
The standing principle has not always been clearly articulated or uniformly applied. Indeed in Barrows the Court relaxed the rule in light of the "unique situation" before it. 346 U.S. at 257, 73 S. Ct. 1031. For a recent discussion of the standing concept in this context, see Note, 88 Harv. L. Rev. 423 (1974).
[8] The statute is set forth in full at 410 U.S. 117 n. 1, 93 S. Ct. 705.
[9] The statute is set forth in full at Appendix A, 410 U.S. at 202-05, 93 S. Ct. 739. See also Appendix B, 410 U.S. at 205-07, 93 S. Ct. 739, which contains the Model Penal Code provisions.
[10] The district court invalidated the statute insofar as it permitted abortions in only three factual situations. Doe v. Bolton, 319 F. Supp. 1048, 1056 (N.D. Ga. 1970) (three-judge court). On appeal, the Supreme Court characterized the "net result" of the decision as permitting the physician to consider all relevant circumstances in exercising his judgment in this context, i.e., the physical, emotional, psychological, familial, and age factors relevant to the well-being of the patient. 410 U.S. at 191-192, 93 S. Ct. 739. The Supreme Court agreed with this approach but went beyond the scope of the district court decision in invalidating the statutory requirements that the abortion be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals, that the procedure be approved by a hospital abortion committee, that the treating physician's judgment be confirmed by two other doctors, and finally that the woman desiring the abortion be a bona fide resident of the state.
[11] See also Larkin v. Cahalan, 389 Mich. 533, 208 N.W. 2d 176, 178 (1973), where the Michigan statutory framework is set out in detail.
[12] See also Jackson, supra, 312 A.2d 13, 14 (Roberts, J. dissenting) where three members of the court expressed the view that nothing in Roe or Doe prevented the prosecution of an unlicensed physician under the Pennsylvania statute.
[13] In deciding Haren, the Law Division observed that after deciding Roe and Doe the United States Supreme Court denied a petition for certiorari in Cheaney v. Indiana, 410 U.S. 991, 93 S. Ct. 1516, 36 L. Ed. 2d 189 (1973), a case in which a lay defendant had been convicted under the Indiana abortion statute prior to Roe and Doe. In that case, the Supreme Court issued a memorandum opinion denying review on the grounds that petitioner lacked standing. The opinion went on to note:
Mr. Justice Douglas would deny certiorari on the grounds that petitioner, who was convicted of performing an abortion, is not a doctor and that the decisions of this Court in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 were confined to the condition: inter alia, that the abortion, if performed, be based on an appropriately safeguarded medical judgment. [410 U.S. at 991, 93 S. Ct. 1516].
[14] Only two of the defendants appealed. The layman who was to perform the abortion died shortly after trial. 52 N.J. at 185.
[15] The United States Supreme Court has recently indicated that a federal declaratory judgment that a state statute is unconstitutional does not necessarily foreclose all state prosecutions, at least where the statute is declared invalid on vagueness or overbreadth grounds:
Thus, where the highest court of a State has had an opportunity to give a statute regulating expression a narrowing or clarifying construction but has failed to do so, and later a federal court declares the statute unconstitutionally vague or overbroad, it may well be open to a state prosecutor, after the federal court decision, to bring a prosecution under the statute if he reasonably believes that the defendant's conduct is not constitutionally protected and that the state courts may give the statute a construction so as to yield a constitutionally valid conviction. [Steffel v. Thompson, 415 U.S. 451, 470, 94 S. Ct. 1209, 1221, 39 L. Ed. 2d 505 (1974) (quoting from Perez v. Ledesma, 401 U.S. 82, 125, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971) (Brennan, J. joined by White and Marshall JJ., concurring in part and dissenting in part))]
[16] It should also be noted that in the Kugler litigation, the New Jersey attorney general moved before the Third Circuit for a stay of the declaratory judgment shortly after the three-judge district court rendered its decision. Y.W.C.A. v. Kugler, 463 F.2d 203 (3 Cir.1972). In denying the motion the court pointed out that Kugler was not a class action and that:
In the absence of a class action determination the declaratory judgment is binding only between these seven individual physician plaintiffs and the defendant appellant. Between the State of New Jersey and any other persons the opinion of the three-judge district court has only stare decisis effect to be weighed against conflicting opinions in the New Jersey Courts. The State remains free to take whatever steps against others than the individual plaintiffs it deems appropriate to enforce the statute by criminal sanctions. It is clear from the carefully considered and limited relief afforded by the district court that this is exactly the position in which it intended to leave the State. [463 F.2d at 204].
[17] N.J.S.A. 2A:96-4 provides:
A parent, legal guardian or person having the custody or control of a child, who by any continued negligence or willful act, encourages, causes or contributes to the child's delinquency, or any other person who by any willful act encourages, causes or contributes to a child's delinquency, is guilty of a misdemeanor.
[18] At the time that the instant abortion was performed, N.J.S.A. 2A:4-14(2) g and m defined juvenile delinquency as "immorality" or "deportment endangering the morals, health or general welfare of said child." Effective March 1, 1974, however, the definition of delinquency was substantially restricted by the enactment of L. 1973, c. 306, N.J.S.A. 2A:4-44 (Supp. 1975-76).
[19] In charging the jury on this count, the court said:
The State must also prove that the willful act or conduct of the defendant encouraged or had a tendency to cause the child's becoming delinquent. It is not necessary for the State to prove that the defendant's conduct actually resulted in the child becoming delinquent.
A delinquent child is one who engaged in an illegal or immoral act, that is, an act which is of itself in violation of law or which is not consistent with good morals * * * | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/98436/ | 237 U.S. 251 (1915)
GREENLEAF JOHNSON LUMBER COMPANY
v.
GARRISON, SECRETARY OF WAR.
No. 678.
Supreme Court of United States.
Argued February 24, 25, 1915.
Decided April 12, 1915.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.
*252 Mr. J.L. Jeffries, with whom Mr. L.D. Starke was on the brief, for appellant.
Mr. Assistant Attorney General Underwood for appellees.
*254 MR. JUSTICE McKENNA delivered the opinion of the court.
Suit for injunction by appellant, which we shall call complainant, brought originally against Henry L. Stimson as Secretary of War and Robert Shaw Oliver as Assistant *255 Secretary of War, for whom the appellees were substituted and whom we shall refer to as defendants, to enjoin them and all persons acting under their authority from taking or removing or in any way interfering with complainant's wharf or other property "along or upon the water front of its said property upon the southern branch of the Elizabeth river" in the State of Virginia. It having been constructed, it is alleged, under the authority of the State and within and upon the harbor line subsequently established by the Secretary of War, it became, it is further alleged, property lawfully owned and could, therefore, be removed only upon payment of just compensation.
A preliminary injunction was granted in accordance with the prayer of the bill.
There was a demurrer to the bill, urging, among other grounds, that the court was without jurisdiction of the persons of the defendants and also without jurisdiction of the suit because it was one against the United States. These grounds were subsequently waived and the want of equity in the bill alone relied on.
The demurrer was overruled, 204 Fed. Rep. 489, and the present defendants, substituted as parties defendant, answered.
The answer, by certain denials and admissions, in effect repeated the propositions of the demurrer and asserted the control of Congress over the river, acting through the Secretary of War, adducing 30 Stat. 1153, and concluded with a prayer that the court order the demolition of such portions of the wharf and other property as might be found to be outside the re-established pier-head line and that the injunction theretofore granted be dissolved and complainant's bill dismissed.
Further detail of the pleadings is unnecessary as a statement of facts was made which presents all that are necessary for a decision. From the statement it appears that a board of harbor commissioners was created by *256 Virginia in 1875 and that in 1876, the exact date not known, the authorities of the State of Virginia established a harbor line which remained until 1890, when the same was adopted by the Secretary of War as the harbor line established by the Federal Government, and it so remained until "the recent establishment of the present harbor line June 12, 1911, which was so established by the Secretary of War, after notice, etc., and that until said new line was established, no part of complainant's property was outside of the same." It appears from the statement and diagram attached that complainant had constructed two certain fills into the Elizabeth river. It made extensions into the river from two points on the shore and connected at the outer extremities, the wall forming a continuous wharf of three sides surrounding the water they inclosed, the fourth side being the high land. The space so surrounded was called a log pond and designed for the storage of logs for the purposes of complainant's business. The following also appears from the statement:
"That on the 22nd day of July, 1911, the Navy Department wrote to the complainant stating that that Department intended making certain improvements in the Navy Yard and requesting the complainant to fix a price at which it would sell so much of its property or wharf and log pond as lay without the present port warden's line. The complainant answering said letter stated that the matter would be laid before its board of directors on July 26, 1911, and thereafter the attached correspondence was had between the Navy Department and the complainant. That while the above paragraph is admitted as a fact, it is nevertheless objected to by the defendants for the reason that the same is not relevant or material to the decision of this case and it is claimed by said defendants, Secretary of War and Assistant Secretary of War, that this admission does not bind them.
*257 "That the water now immediately in front of complainant's property is navigable, but if the present structures are removed to the present harbor line as demanded by the Government the complainant will be cut off from navigable water unless the river is dredged where the structures now are. That an act of Congress approved March 4, 1911, entitled "An Act making Appropriations for the Naval Service for the year ending June 30, 1912, and for other purposes" (c. 239, 36 Stat. 1265, 1275), has been passed, in which Act an appropriation has been made for dredging the bottom of the river at the point in controversy, pursuant to which the Government proposes to widen the channel to the new port warden's line.
"It is further admitted that the fee simple title to the high land to low water mark adjacent to the port warden's line in question, is in the Greenleaf Johnson Lumber Company, the complainant in this suit.
"The reestablished or new harbor line runs along the front of complainant's wharf at the northern end of the property, cutting off approximately two [200] feet of the same."
There was some oral testimony, of which it is enough to say that it identified certain descriptive maps of the property. It also showed the purpose for which the property was constructed and used, and its present condition, the description of the new line and its relation to the old one, and that "the entire change made by the establishment of the new harbor line is immediately in front of the Navy Yard," and that "the Government in recent years had used the channel of the river opposite the Navy Yard and in front of the property of complainant to a very large extent for the storage of its vessels," and a witness had seen as many as five abreast, ranging from torpedo boats to colliers.
The District Court overruled the demurrer, as we have said, expressing its views in an opinion. The court also *258 denied the mandatory injunction prayed by the United States and continued the temporary restraining order. Subsequently the court entered its decree adjudging that the Secretary of War had no authority under the law to remove or cause to be removed the structures mentioned in the pleadings and decreed that the temporary injunction be made permanent. The decree was reversed by the Circuit Court of Appeals. 208 Fed. Rep. 1022.
Two propositions are presented: (1) The power of Congress over navigable waters. (2) Whether the acts of the Secretary of War were done in the exercise of that power.
It would seem that the existence of the power of Congress has been withdrawn from the domain of discussion by many authorities, and that little room is left for debate as to the extent of that power. But a distinction is made by complainant between structures in a river which avail of its navigability and structures which may be an obstruction to its navigation. Upon this distinction which will be explained more fully hereafter, complainant contends that a right of property by the privilege granted by the State of Virginia became vested in it which can only be taken upon payment of just compensation. And this distinction, it is further contended, explains the cases relied on by counsel for the United States and sustains the authority of the cases adduced by complainant. A review of the cases, therefore, is worth while.
The power of Congress is expressed in a general way in Gilman v. Philadelphia, 3 Wall. 713, 731, in which a certain power was conceded to the States but necessarily to be exercised, it was decided, in subordination to the supremacy of the national power. "Until the dominant power of the Constitution is awakened," it was said, "and made effective, . . . the reserved power of the States is plenary."
In Gibson v. United States, 166 U.S. 269, there was a further expression of the principle and an application of *259 it to riparian ownership, and it was decided that "all navigable waters are under the control of the United States for the purpose of regulating and improving navigation, and although the title to the shore and submerged soil is in the various States and individual owners under them, it is always subject to the servitude in respect to navigation created in favor of the Federal Government by the Constitution." Citing, among other cases, Shively v. Bowlby, 152 U.S. 1. The case was one for the recovery of damages caused by the construction of a dike in the Ohio river, by which the lands of Gibson were flooded. Relief was denied and the principle expressed that the exercise "of the dominant right of the Government" over navigation subjected riparian ownership to such consequence and it was said that an appropriation for improvement was an exercise of the power of Congress.
In Scranton v. Wheeler, 179 U.S. 141, access was cut off from a navigable river by improvements instituted by authority of Congress. This was said: "All the cases concur in holding that the power of Congress to regulate commerce, and therefore navigation, is paramount, and is unrestricted, except by the limitations upon its authority by the Constitution." The words "except by the limitations upon its authority by the Constitution" were not intended to qualify the power expressed, as is made manifest by subsequent cases.
In C., B. & Q. Ry. v. Illinois, 200 U.S. 561, the railway company was required to reconstruct a bridge to subserve a public work. The bridge had been constructed under lawful authority. Compensation, however, was denied, the bridge being over a public highway. The latter and public waters were considered analogous.
In West Chicago Railroad v. Chicago, 201 U.S. 506, a tunnel was constructed by permission of Chicago under the Chicago river and was subsequently required to be lowered. It was held not a taking of property, the removal *260 of the tunnel having been required in the interest of navigation. In other words, the paramount right of navigation was decided to be superior to riparian rights or rights in the river or, to put it more generally, to rights in the submerged lands. The case seems directly against complainant in the case at bar. Complainant asserts a right of compensation because it conformed to the harbor line as located by Virginia and by the United States; in other words, contends that it acquired a vested right. The case decides otherwise, and 200 U.S. 561, supra, so decides. The proposition announced was that the power of the sovereign, state or National, is perpetual not exhausted by one exercise and all privileges granted in public waters are subject to it; and that the exercise of the power was not a taking of private property for a public use but "the lawful exercise of a governmental power for the common good."
Union Bridge Co. v. United States, 204 U.S. 364, 400, conspicuously displays the principles of the prior cases cited and followed by it. A bridge was required to be altered or changed, the expense of which was great. It was contended that the bridge had been erected under state authority, to the exercise of which the United States had impliedly assented, and that, therefore, the requirement to alter it was a taking of property without compensation. The opposing contention of the United States was that the requirement was an exertion by Congress of its power to regulate commerce, and therefore navigation, upon the waterways on and over which such commerce was conducted. The latter contention was sustained upon a review of the prior cases. It was said that when the company "exerted the power conferred upon it by the State, it did so with the knowledge of the paramount authority of Congress to regulate commerce among the States" and subject to the possibility that Congress at some future time would exert its power.
*261 In Monongahela Bridge Co. v. United States, 216 U.S. 177, 194, again the doctrine of the other cases was repeated. A bridge erected over the navigable waters of a State by the authority of the State was declared subject to the paramount authority of Congress to regulate commerce and its right to remove unreasonable obstructions to navigation. Congress exerted its power in a provision in the river and harbor bill of March 3, 1899, giving authority to the Secretary of War, when he had good reason to believe a bridge over navigable waterways was an unreasonable obstruction to navigation, to order it to be removed after notice and hearing. The court declined to modify its holding in Union Bridge v. United States, and declared that it adhered "to what was said in that case" and sustained the Secretary without much discussion.
Hannibal Bridge Co. v. United States, 221 U.S. 194, was another case of bridge removal. It is not so positive an authority as the preceding cases, for Congress had reserved the right to alter or amend the act under which the bridge was constructed. But the Union Bridge Case was quoted from as correctly expressing the Congressional power.
Philadelphia Company v. Stimson, 223 U.S. 605, is directly to the effect that Congress may establish harbor lines, and is not precluded thereby from changing them. There was action by the State and twice by the United States and the relation of such actions and the rights derived therefrom were considered and determined. Rights under the action of the State were asserted by the Philadelphia Company and assumed to exist by the court in determining the power of Congress. It was said (page 634): "The exercise of this power [that of Congress] could not be fettered by any grant made by the State of the soil which formed the bed of the river, or by any authority conferred by the State for the creation of obstructions *262 to its navigation." And again, "It is for Congress to decide what shall or shall not be deemed in judgment of law an obstruction of navigation. . . . The principles applicable to this case have been repeatedly stated in recent decisions of this court." The cases which we have reviewed were cited. In speaking of the effect of the first action of the Secretary as affecting his second action, it was said, "That officer did not exhaust his authority in laying the lines first established in 1895, but was entitled to change them, as he did change them in 1907, in order more fully to preserve the river from obstruction. And, in none of the acts complained of, did he exceed the power which had been conferred."
Philadelphia Company v. Stimson, supra, is an epitome of all prior cases. Indeed we might have relied upon it as furnishing all of the elements of decision of that at bar. It expressed the subordination of the power of the States to the power of Congress, that one exercise of the power by either does not preclude another exercise by either, and that the State can grant no right to the soil of the bed of navigable waters which is not subject to Federal regulation. There was a repetition of this doctrine in United States v. Chandler-Dunbar Co., 229 U.S. 53.
Yates v. Milwaukee, 10 Wall. 497, is not in antagonism to the principle announced in those cases. If it could be so regarded it would have to give way to the many cases decided since. But it cannot be so regarded. It was decided, it is true, that one of the rights of a riparian owner was that of access to a navigable river and of constructing a landing wharf or pier for his own use and that of the public, but the limitation or subordination of these rights to be regulated by the dominant power of Congress was not involved nor passed on. And certainly no limitation was implied. The case was referred to in Scranton v. Wheeler, supra, and "the point adjudged" said to be that, as there was no proof in the record that the wharf involved *263 was in fact an obstruction to navigation or a nuisance, except a declaration to that effect in the city ordinance attacked, the wharf could not be made such by a mere declaration. And it was observed that "a proper disposition of the case required nothing more to be said." See Shively v. Bowlby, 152 U.S. 1, 40.
We have recognized that the States have a certain control and management over the navigable streams within their territory, but subject to be superseded by the interference of Congress. Gilman v. Philadelphia, supra; Pound v. Turck, 95 U.S. 459; Escanaba Co. v. Chicago, 107 U.S. 678. When Congress acts, necessarily its power extends to the whole expanse of the stream, and is not dependent upon the depth or shallowness of the water. To recognize such distinction would be to limit the power when and where its exercise might be most needed. In Scranton v. Wheeler, 179 U.S. 141, the water was very shallow between the high land and the pier erected in the river by authority of Congress and which it was contended cut off access to navigability.
But, as we have said, complainant distinguishes between the rights a riparian owner may receive, "between those rights," to quote counsel, "which do not relate to navigation in any sense, and second, those which do relate thereto, and which contribute to the enjoyment thereof." To support the distinction Monongahela Navigation Co. v. United States, 148 U.S. 312, 335, as construed in Oyster Co. v. Briggs, 229 U.S. 82, is adduced. The argument is that the right or privilege which complainant received from Virginia was given by the State "in the performance of the dominant trust for the benefit of the public" and not, as in the cases urged by defendant, "in the interest of the individual riparian owners." And it is declared that the cases referred to and Ill. Cent. R.R. v. Illinois, 146 U.S. 387, makes it clear "that when grants of rights or privileges are made within the authority of the *264 State, property acquired thereunder becomes as stable as any other property, and the rights and privileges so granted are irrevocable, and if taken for public use it must be upon the payment of just compensation." It is hence contended that when the State or Congress acts in fulfillment of its trust for the benefit of the public the structures it authorizes become fully protected under the Constitution, and in thus encouraging facilities for navigation and commerce "Congress loses none of its authority of regulation, because it can at any time exercise the right of eminent domain, and the expense will be a most profitable investment in the public interest."
The contention is plausible, but it is not supported by the cited cases, and the case relied on by complainant is reconcilable with them. It is true the instances in the cited cases were the removal of structures not facilities of commerce on the rivers. But the principle declared in the cases and which determined their decision was not dependent upon such instances, and the power of Congress was said to be analogous in its illimitable exertion to the police power. Illustrative cases were adduced. How then, it may be asked indeed, is asked shall we account for Monongahela Navigation Co. v. United States, 148 U.S. 312, as construed in Oyster Company v. Briggs, 229 U.S. 82? It was said in the latter case that the former rested upon estoppel.
A few words of explanation become necessary. The Monongahela Company, under the express authority of the State of Pennsylvania, expended large sums of money in improving the Monongahela River by means of locks and dams, which were also built at the instance and suggestion of the United States. By means of the improvements the river, which theretofore was navigable only for boats of small tonnage and at certain seasons of the year, accommodated large steamboats at all seasons and an extensive commerce by means thereof. Subsequently *265 Congress authorized the purchase of the property, or, if its price could not be agreed on, its condemnation, but excluded from the estimate of the sum to be paid for it a consideration of the franchise to collect tolls. It was held that the franchise was a part of the property and should be paid for, notwithstanding its exclusion by Congress, and that the franchise, the right to take tolls, could "no more be taken without compensation than" could "its [the company's] tangible, corporeal property." The court said, by Mr. Justice Brewer, "This lock and dam connected the lower improvements already made by the Navigation Company with the upper improvements proposed to be made by Congress, and the appropriation by the latter [act of March 3, 1881] was conditioned on the company's undertaking their construction. This is something more than the mere recognition of an existing fact; it is an invitation to the company to do the work; and when in pursuance of that invitation, and under authority given by the State of Pennsylvania, the company constructed the lock and dam, it does not lie in the power of the State or the United States to say that such lock and dam are an obstruction and wrongfully there, or that the right to compensation for the use of this improvement by the public does not belong to its owner, the Navigation Company."
This language was quoted in Oyster Co. v. Briggs as sustaining the view that the case rested upon estoppel rested upon the fact that the lock and dam had been constructed "at the instance and implied invitation of Congress." It is true a great deal was said by Mr. Justice Brewer which seemed to be of broader import, but we are now only concerned with the explanation of the case by the later case, and we may observe that the Union Bridge Case, supra, was referred to for comparison. It is manifest, therefore, that the Monongahela Navigation Co. Case can be distinguished from the other cases and its ruling *266 sustained upon the following grounds: (1) The lock and dam were built at the instance of Congress, not as a simple facility for the navigation of the river but as making its navigability, enlarging its capacity from the accommodation of boats of small tonnage at certain seasons of the year to the accommodation of large steamboats at all seasons. (2) The Navigation Company was invited to make the improvements, and so far invested with the rights of sovereignty. It did not, as did complainant in the case at bar, exercise the rights of a riparian owner, building to the harbor line and availing itself of the navigability of the river for its own interest. It, to repeat, constructed a public work, having no other power to do so but the authority conferred upon it by the State and by Congress invited, indeed, to do so and given as its compensation a right to take tolls for the use of the works. This court well said that such right was as much the consideration of the service rendered as the material property constructed. The case, therefore, as Mr. Justice Lurton said in the Oyster Co. Case, rested on estoppel. Whatever was said beyond that may be left, as it was left in the latter case, to a comparison with the Union Bridge Case, the principle it declares and the cases it cites.
Something is attempted to be made of Gring v. Ives, 222 U.S. 365, by complainant in support of its distinction between rights held "subject to the dominant trust in which the beds of navigable streams are held, and those conferred in the exercise and in aid of the purpose of the dominant trust under which the submerged soil is held for the benefit of the public." The case does not support the distinction. A marine railway was constructed under state authority and had been in existence for eighteen years but projected beyond a harbor line subsequently established by Congress. It was run into recklessly and injured by a tugboat, and in defense of an action for the injury the fact of the projection beyond the harbor line was set *267 up. The defense was rejected, the lower court deciding that even if the railway had been erected illegally, even if it was a public nuisance, the tugboat was not authorized to run into it unnecessarily and negligently as the evidence tended to show. The case was brought here, a Federal question being based on the act of Congress under which the harbor line over which the marine railway projected was established. The question was pronounced frivolous and the writ of error was dismissed.
The contention of the tugboat owner was practically that the railway was an outlaw subject to be destroyed by anybody, although it had been erected by authority of the State and its existence indulged by the Secretary of War. Manifestly the contention was without any merit whatever, as was said by the court, and there was no implication of the existence of the distinction urged by complainant, nor implication of the want of power in the Secretary of War to have ordered the railway removed if he had thought it in the interest of commerce to have done so.
It is, however, contended that the jurisdiction to establish harbor lines is given by the statute only "where it is made manifest to the Secretary of War that the establishment of harbor lines is essential to the preservation and protection of harbors," and that it is shown by the agreed statement of facts and the correspondence attached thereto that the Secretary of War acted at the suggestion of the Navy Department for the improvement of the river opposite the Norfolk Navy Yard and in pursuance of the act making appropriations for the naval service for the year ending June 30, 1912, c 239, 36 Stat. 1265, 1275; and that this was "the sole purpose of the change in the harbor lines and the required removal of the company's [complainant's] property is shown by the additional fact that it appears that the United States moors abreast its war vessels, colliers and other vessels in front of its Navy Yard, so that *268 they project out in the channel which it so uses for the storage of its vessels."
We may grant that such was the inducement and such the occasional use, but neither militates against the validity of the power exercised. The mooring of vessels is as necessary as their movement, and the navigability of a river can be maintained or increased as legally for the accommodation of war vessels as for trading vessels, those of public ownership as well as those of private ownership, and we cannot enter into a consideration of what may be necessary for either purpose.
It was said in United States v. Chandler-Dunbar Water Co., 229 U.S., at page 64: So unfettered is the "control of Congress over the navigable streams of the country that its judgment as to whether a construction in or over such a river is or is not an obstacle and a hindrance to navigation, is conclusive. Such judgment and determination is the exercise of legislative power in respect of a subject wholly within its control." And in Scranton v. Wheeler, 179 U.S. 141, 162: "Whether navigation upon waters over which Congress may exert its authority requires improvement at all, or improvement in a particular way, are matters wholly within its discretion; . . ." This power has been exercised by the act of March 3, 1899, delegating to the Secretary of War the power to establish harbor lines and, necessarily, to require the removal of structures which project beyond them. Union Bridge Company v. United States, 204 U.S. 364.
If it can be said that arbitrary or wanton action of the Secretary of War would be subject to judicial review, it cannot be said that his action in the case at bar reached that bad degree.
Decree affirmed.
MR. JUSTICE McREYNOLDS took no part in the consideration and decision of this case.
*269 MR. JUSTICE LAMAR, dissenting.
I dissent from the judgment by which the appellant's wharf is physically taken, its existing right of access to navigable water destroyed, and its private property appropriated to public use without compensation.
At, above and below the Norfolk Navy Yard, the navigable part of the Elizabeth River is 600 feet in width. In 1873 appellant's wharf was built opposite the Navy Yard, through shallow water out to the navigable channel of the stream. Several years afterward, under authority of the State of Virginia, the Norfolk Wardens established a port line which ran along the edge of this channel and left the Lumber Company's wharf and logging pond outside of the harbor.
In 1890, fourteen years later, the Secretary of War established exactly the same line; and thus by City, state and Federal authority the plaintiff's wharf was shown to be a lawful structure outside of the harbor and not an obstruction to navigation either in law or in fact. Since that date there has been no change in the condition of the stream; and the wharf remained a lawful structure until 1911 when, having decided to widen the river at that point, as a place of storage for war vessels, Congress in that part of the Act of March 4, 1911 (36 Stat. 1275) relating to the Navy Yard at Norfolk, made an appropriation of $80,000 "for the purchase of land and widening the channel." Accordingly, on June 12, 1911, the harbor line was changed, at this particular point, so as to take in the part of the river intended to be widened, but leaving the Norfolk harbor line otherwise unaffected. No one understood, however, that fixing the line 200 feet further inland at this place for this naval purpose authorized the taking of plaintiff's wharf without compensation. And the act of Congress so obviously included the property of the plaintiff, as a part of that to be purchased, that the Secretary *270 of the Navy on July 22, 1911, "wrote to the complainant stating that that Department intended making certain improvements in the Navy Yard and requesting the complainant to fix a price at which it would sell so much of its property or wharf and logging pond as lay without the present Portwarden's line."
The complainant named a price which the Department considered exorbitant, and the parties failing to agree the Government began proceedings in the District Court of the United States
"to acquire title by condemnation to a certain piece of land, situated in the southern branch of the Elizabeth River, Virginia, held and owned by the Greenleaf Johnson Lumber Company, which is needed for public uses and purposes; that is to say for deepening and widening the said South Branch of the Elizabeth River, as authorized by Act of March 4, 1911 (36 Stat. 1275)."
The statutory notice was given the owner and a jury was impanelled to assess the value of complainant's property, when, suddenly, the proceedings were dismissed and, what was a wharf lawfully erected in a non-navigable part of the stream and outside of the old line, was declared to be "a menace to navigation."
The control which Congress has over navigable waters by virtue of the power to regulate commerce is practically unlimited, except in one particular. The Fifth Amendment was passed for the purpose of restraining the exercise of that or any other power by which private property was taken. Monongahela Co. v. United States, 148 U.S. 336; McCray v. United States, 195 U.S. 61 (3). That Amendment was intended to protect the citizen against the Government; and being the expression of the fundamental policy of a people, both able and willing to pay, should be given a broad and liberal construction. Congress in directing that the Elizabeth River should be widened distinctly indicated its intention that the private property *271 needed for that purpose should be "purchased." The Secretary of the Navy so understood the statute and began proceedings to ascertain the amount the Government should pay for the property of the appellant needed for widening the river. In the absence of absolutely controlling authority, requiring a different interpretation, the complainant should receive the payment intended by Congress and demanded by the Constitution wherever private property is taken for a public use. But there is no such authority cited, for none of the decisions relied on by the Government sustain the contention that, on facts like these, wharf property can be taken without compensation.
Some of the cases cited make a distinction between taking and damaging, and then hold that the owner cannot recover for consequential damages resulting from making public improvements in navigable waters (Scranton v. Wheeler, 179 U.S. 141). Another holds that the title of the riparian owner to oysters in the bed of a body of public water is inferior to the right of the Government to deepen the channel in the interest of commerce. Lewis Oyster Co. v. Briggs, 229 U.S. 82. Another related to a case where a power dam had been constructed under a revocable license. It was held that the owner acquired no such right in the flow in the stream as would give him a claim for damages when the Government, in the interest of navigation, caused the water to run in another channel. United States v. Chandler, 229 U.S. 53. Another holds that where the Government had constructed a dam, which raised the level of the river and backed the water beyond the old harbor line, the person who purchased after the dam was built could not complain because he was prevented from building a wharf inside to the new harbor lines which had been changed to conform to the new line of deep water. But the right of the person who owned the land before the dam was built was expressly left open for future *272 decision. Philadelphia Co. v. Stimson, 223 U.S. 627. In some of the cases it appeared that bridges had been built subject to the power expressly reserved to order them removed. Hannibal Bridge Co. v. United States, 221 U.S. 194. Several of the cases hold that those who build bridges or tunnels across the navigable channel of a stream can be required at their own expense to raise or lower the structures whenever they become obstructions to navigation. Union Bridge Co. v. United States, 204 U.S. 364; West Chicago R.R. v. Chicago, 201 U.S. 506.
But no case has been cited which holds that a wharf, in shallow water, outside an established harbor line, can be declared an obstruction to navigation, the property taken and the owner ousted of possession without compensation.
On the contrary, Yates v. Milwaukee, 10 Wall. 497, distinctly holds that this cannot be done. There the City, by the act of 1854, had authority `by ordinance to establish dock and wharf lines and to prevent obstructions in the river and to cause it to be dredged.' Thereafter Yates built a wharf, across the harbor line, through the shallow water out to the navigable channel of the Milwaukee River. Subsequently a new line was established (505) and in 1864, the city declared, as the Secretary did here, that the wharf (inside the harbor line), was an obstruction. This court said:
"The mere declaration by the city council of Milwaukee that a certain structure was an encroachment or obstruction did not make it so, nor could such declaration make it a nuisance unless it in fact had that character." (505)
Again, speaking of the land-owner's right to build docks, the court said:
"This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed *273 or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law, and if necessary that it be taken for the public good, upon due compensation."
There is a remarkable similarity between the facts in the Yates Case and the present. There the dock was to be `removed in pursuance of a general scheme of widening the channel and in improving the navigation of the Milwaukee River.' Here Congress appropriated $80,000 `to purchase land and to widen the channel' of the Elizabeth River in the interest of the Navy Yard. But even such governmental purposes would not justify a taking without payment; for, in the Yates Case, the court concluded its opinion by the use of language which is absolutely applicable to the present controversy, saying:
"If the authorities of the city of Milwaukee deem its [the wharf's] removal necessary in the prosecution of any general scheme of widening the channel and improving the navigation of the Milwaukee River, they must first make him compensation for his property so taken for the public use."
That case has never been overruled and is a notable illustration of the meaning of the Fifth Amendment, which, standing between the Government and the private individual, provides a means by which the interests of the public can be secured without destruction of the rights of the citizen.
Most of the wharves in the United States were located many years before the adoption of the act conferring power upon the Secretary of War to establish harbor lines. Congress did not intend to destroy existing rights (Montgomery v. Portland, 190 U.S. 105) and it is inconceivable that it could have intended to vest that officer with the power to declare that these lawful structures, worth hundreds of millions of dollars and useful agencies of commerce, were obstructions to navigation merely because *274 they were inside of a line which he might decide to run in non-navigable water.
The present case is even stronger, for the complainant's wharf is located outside of a harbor line which had been established in 1890 by the Secretary of War himself. The wharf was not an obstruction to navigation when it was built in 1873; it was not an obstruction to navigation when the Secretary established the line in 1890; it has not become an obstruction to navigation during the years it has remained in shallow water, and, under the Yates Case, cannot be made an obstruction in fact by declaring (where there has been no change in the stream), that it is such in law.
Few cases directly in point can be found, but out of the multitude which deal with the principle involved, the facts and rulings in the following tend to sustain the appellant's right to compensation for the wharf taken for public use: Dutton v. Strong, 1 Black, 1; Railroad Company v. Schurmeir, 7 Wall. 272; Monongahela Navigation Co. v. United States, 148 U.S. 312, 336; Commonwealth v. Alger, 7 Cush. 53, 103; Langdon v. Mayor of New York, 98 N.Y. 129, 161; Kingsland v. Mayor of New York, 110 N.Y. 570, 574; Fitchburg R. Co. v. Boston & M.R. Co., 3 Cush. 71; Hamlin v. Parpoint, 141 Massachusetts, 57; Lewis v. Portland, 25 Oregon, 133, 167; B. & O.R.R. Co. v. Chase, 43 Maryland, 35-36; Classen v. Chesapeake Co., 81 Maryland, 259.
The power of the Secretary of War to run harbor lines may not be exhausted when once exercised, and, from time to time, they may be relocated over unused and submerged land. But as against lawful structures, the line must be run to conform to the physical conditions of the stream and to meet changes occasioned by the washing of the water or other natural causes. But the public cannot determine to widen the river, artificially create a channel, and thus, by its own act, acquire a right to declare *275 that what was formerly a lawful structure in shallow water will be an obstruction to a storage basin to be artificially created.
In Commonwealth v. Alger, 7 Cush. 53, 103, it is strongly intimated that the power to establish harbor lines does not confer authority to take, without compensation, existing structures lawfully built out to the navigable channel. Other cases hold that the establishment of the line is in the nature of an invitation to fill in and build out to that line. Sherman v. Sherman, 18 R.I. 506. So here the action of the Secretary of War in 1890 "is to be construed as a regulation of the exercise of the riparian right; it settles the line of navigability above which the State will not interfere; and is an implied concession of the right to build, possess and occupy, which amounts practically to a qualified possessory title. Miller v. Mendenhall, 43 Minnesota, 95, citing Hamlin v. Parpoint, 141 Massachusetts, 51. See also Langdon v. Mayor, 98 N.Y. 129, 161; City of Brooklyn v. New York Ferry Co., 87 N.Y. 204, 206, and Williams v. Mayor of New York, 105 N.Y. 429.
The action of the Secretary of War in 1890 in establishing a harbor line was, in effect, a declaration that wharves outside of the limits of that harbor thus marked and defined were not obstructions to navigation and, as against existing wharfs, the line could not thereafter be changed except to meet natural changes in the channel. Congress in authorizing the Secretary of War to establish lines, clearly indicated an intention to secure fixity and permanency. If such was not its intention, then as shown by the actual results in the present case nothing could be more unstable than the tenure by which riparian owners hold docks, piers and wharves. For, progressively, it is said that the builders cannot rely on grants from the State; they cannot rely on lines fixed by the Port Wardens of the State; and it is now decided that they cannot rely on a line fixed by the Secretary of War. For, under the *276 ruling in the present case, he can, by running a new line, take in 200 feet of a wharf outside of an old line and then oust the owner from the possession and use of that property without compensation.
The wharf here involved may not be of great value, but my view of the harm done the Appellant and of the possibility of like serious consequences to a multitude of persons who have built and invested in these costly and useful instrumentalities of commerce compel me to dissent from the judgment. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/97973/ | 230 U.S. 553 (1913)
ALLEN ET AL., RAILROAD COMMISSIONERS OF THE STATE OF ARKANSAS,
v.
ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY.
SAME
v.
ST. LOUIS SOUTHWESTERN RAILWAY COMPANY.
Nos. 440, 441.
Supreme Court of United States.
Argued April 12, 15, 1912.
Decided June 16, 1913.
APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.
*554 Mr. Joseph M. Hill for appellants.
Mr. John M. Moore, with whom Mr. Martin S. Clardy and Mr. Samuel H. West were on the brief, for appellees.
MR. JUSTICE HUGHES delivered the opinion of the court.
The legislature of Arkansas, on February 9, 1907, passed an act fixing the maximum passenger fare within the State, on railroads over eighty-five miles in length, at two cents a mile. On June 4, 1908, the Railroad Commission of the State adopted Standard Distance Tariff No. 3, which superseded the former freight tariff and established maximum intrastate freight rates for all classes and commodities. The requirement with respect to maximum passenger fares as provided by the legislature was also promulgated by the commission.
In July, 1908, the appellees, the St. Louis, Iron Mountain & Southern Railway Company and the St. Louis Southwestern Railway Company, respectively, filed their bills in the Circuit Court, alleging that the action of the legislature and the commission, in fixing these rates, was unreasonable and confiscatory, and also that it amounted *555 to an unconstitutional interference with interstate commerce. Answers were filed by the defendants, the members of the railroad commission, and voluminous evidence was taken. The court found the rates to be confiscatory and a decree was entered enjoining their enforcement. 187 Fed. Rep. 290. The railroad commissioners appeal.
The contention of the complainants based upon the asserted interference with interstate commerce was rightly overruled by the court below (Minnesota Rate Cases, ante, p. 352), and the only question which remains for our consideration is whether the proof was sufficient to sustain the finding of confiscation.
It is said on the part of the commissioners, that the freight tariff No. 3, adopted in 1908, was substantially similar to that which had been prescribed in 1904, and that the latter was in substance a repetition of the first tariff of the commission which had been put into effect in 1900; that is to say, that, while changes had been made from time to time to provide suitable adjustments, there were no substantial differences in the rates imposed by the last tariff, of which complaint was made, as compared with those of the earlier years when considered with respect to the effect upon the freight revenue in its entirety. It is urged, however, by the companies that there were reductions in fact and that, apart from this, there had been a continuous increase in the expenses incident to operation in the State and in the burdens imposed upon the companies; and also that the passenger fare act of 1907 (February 9, 1907, Acts 1907, Act No. 8, p. 9) had largely reduced the revenues of the roads. We deem it to be clear that the right of the complainants to contest the validity of the rates, if, as applied to changed conditions, they were found to be confiscatory, was not impaired by their action in putting them into effect. When these suits were brought, the passenger fare act had been in force for more than a year, but this gave opportunity to *556 ascertain the actual results, and, even if it were assumed that the new freight tariff of 1908 did not greatly reduce the former rates, the complainants were certainly not barred from presenting to the court their contention that the operation of the rates as a whole deprived them of a fair return from their entire intrastate business.
No question is presented as to the value of the properties within the State which were used by the companies in the public service. This was the subject of a formal stipulation by which it was conceded that the assessments made by the state tax commission, multiplied by two, should represent the value of these properties, respectively, for the purpose of these suits. Upon this basis, the value of the property of the St. Louis, Iron Mountain & Southern Railway Company was found to be $39,986,564; and that of the St. Louis Southwestern Railway Company, $14,029,634.
In the case of the Iron Mountain road, the period taken for the purpose of calculation was the six months ending December 31, 1907. According to the statement of the company, the total earnings from the business in Arkansas, interstate and intrastate, for this period, were $6,675,076.79. The total operating expenses, together with taxes and rentals, amounted, for the same period, to $5,175,301.44. The net earnings for the six months were thus $1,499,775.35; and this amount was equivalent to a return at the annual rate of 7.5 per cent upon the entire value of the property.
The statement submitted by the St. Louis Southwestern company for the six months ending December 31, 1907, showed operating revenues within the State, from both interstate and intrastate business, amounting to $2,288,173.40; and operating expenses, taxes and rentals, aggregating $1,388,075.94, leaving as net earnings for the six months, $900,097.46. We have also, in the case of this company, its statement for the entire fiscal year ending *557 June 30, 1908, which gives the total operating revenues within the State, interstate and intrastate, as $4,130,011.45, and operating expenses, together with taxes and rentals, amounting to $2,691,287.44, thus leaving net earnings of $1,438,724.01, or more than 10 per cent. upon the value of the property.
The showing thus made, of the returns from the combined business, makes it entirely clear that the ultimate conclusion must depend upon the certainty of the proof with respect to the segregation of the results of the intrastate operations. That is, the controlling questions concern the division of the expenses between interstate and intrastate transportation, and the determination of the share of the total value of the property which is assignable to the latter and upon which the rate of net return is to be computed.
As to the apportionment of value, it appears that the method adopted below was to divide the value of the entire property, as found, between the interstate and intrastate business according to the relation of gross revenue. In view of the fundamental objections to this method, which were considered in Minnesota Rate Cases, ante, p. 352, the results that have been obtained by resort to it in these cases cannot be accepted as affording a sufficient basis for the conclusion that the State has confiscated the property of the company.
In dividing the expenses of operation, the defendants undertook definitely to establish the cost of intrastate traffic as compared with that which was interstate. For this purpose, it was endeavored to attribute to the local and through train services, respectively, their proper shares of expense and in each case to divide the amount of the ascertained share according to the traffic carried. In the case of the Iron Mountain company, traffic statistics were taken for the month of October, 1907; these were analyzed and a division of expenses was made in accordance with *558 a plan devised by expert accountants. The computations, with respect to the St. Louis Southwestern company, were based upon the operations of October, 1908, as the company had compiled data for that month in making a test of comparative cost. According to these calculations of the defendants, the net return from the entire intrastate business was at the annual rate of 7.09 per cent. for the Iron Mountain road, and 9.16 per cent. for that of the St. Louis Southwestern.
It was objected, however, that the periods selected for these tests were not representative; that the month of October, 1907, in particular, was abnormal because of an unusual congestion of traffic, and that the use of the statistics for October, 1908, was also open to objection as they did not show such a fair average of the business as would enable the court to reach a correct conclusion. The court below took this view, but it was of the opinion that proper allowances might be made which would equalize these conditions. In this view, and for the purpose of correcting assumptions deemed to be erroneous, the court defined the basis of apportionment of the various items of outlay in accordance with which new computations were made. The effect of these calculations was to charge the intrastate freight traffic on the Iron Mountain road with an extra cost of 201.5 per cent. per ton mile. The court, concluding that certain items of the extra cost of local traffic had been omitted, decided that an additional charge of 8.5 per cent. would be reasonable, and that the total extra cost of the intrastate traffic should be placed at 210 per cent. In the case of the St Louis Southwestern company, the extra cost of the intrastate freight traffic was fixed at 250 per cent., this being, it is understood, per ton-mile. With respect to the passenger traffic, the court was of the opinion that the intrastate service should be charged with ten per cent. additional cost in the case of the Iron Mountain company, but that no allowance for extra cost was *559 necessary in that of the St. Louis Southwestern Company. From the computations on these bases the conclusion was derived that the net return from the entire intrastate business of the Iron Mountain company was at the annual rate of less than one per cent., and from that of the St. Louis Southwestern company, 2.6 per cent., upon the shares of the total property value assigned respectively to the intrastate business.
We shall not attempt to review in detail these calculations upon which the decree is based. While they represent a most serious effort to effect a reasonable apportionment, we are convinced, from our examination of the evidence, that they have the same infirmity which was found to exist in the computations in the Minnesota and Missouri rate cases. Minnesota Rate Cases, ante, p. 352; Missouri Rate Cases, ante, p. 474, decided this day, ante, p. 474. On finding, in the present cases, that the periods selected for the purposes of test could not be regarded as fairly representative, the court was left without sufficient data upon which to compute the extra cost of intrastate transportation with such a degree of certainty as would justify the annullment of the State's requirements. Controlling factors, used in the computations, represent general estimates of the conditions of transportation, which may or may not be accurate, and there was an absence of satisfactory evidence, to take the place of the rejected tests, giving with requisite particularity the actual movement of traffic at the times in question and affording a proper basis for the determination of relative cost. The wide variation in results obtained on the different hypotheses, each of which is earnestly supported in argument, illustrates the necessity for the keeping of suitable accounts, at least during typical periods, which will furnish correct statistical information bearing upon the cost of intrastate transportation as compared with interstate, instead of leaving a matter of such intricacy *560 to general expressions of judgment. It was not sufficient for the complainants to criticise the tests relied upon by the defendants, but in seeking to override the action of the State upon constitutional grounds it was incumbent upon them to establish the invalidating facts by definite and convincing proof.
We are of the opinion that the evidence failed to show confiscation.
The decrees are reversed and the cases remanded with directions to dismiss the bills, respectively, without prejudice. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/463381/ | 781 F.2d 852
57 A.F.T.R.2d (RIA) 86-748, 86-1 USTC P 9213
R.G. COPE, JR., INC., Alleged Transferee, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 84-7785.
United States Court of Appeals,Eleventh Circuit.
Feb. 3, 1986.Rehearing Denied March 17, 1986.
1
Berry, Ables, Tatum, Little & Baxter, P.C., Thomas E. Parker, Jr., Huntsville, Ala., for petitioner-appellant.
2
Glenn L. Archer, Jr., Asst. Atty. Gen., Tax Div., U.S. Dept. of Justice, Michael L. Paup, William S. Estabrook, Nancy G. Morgan, Washington, D.C., for respondent-appellee.
3
Appeal from the Decision of the United States Tax Court.
4
Before TJOFLAT and KRAVITCH, Circuit Judges and DUMBAULD*, Senior District Judge.
DUMBAULD, Senior District Judge:
5
This is an appeal from the Tax Court which decided that appellant, R.G. Cope, Jr., Inc. (a corporation of which R.G. Cope, Jr. is president and principal stockholder) is liable as transferee under 26 U.S.C. 6901 for tax liabilities of R.G. Cope's parents, Robert G. Cope, Sr. (Hereinafter sometimes called "father") and of Allene D. Cope ("mother"). The tax years involved are 1972-1975. They did not file returns for 1974 and 1975. The father began having financial difficulties in 1969.
6
As a result of the father's difficulties, the mother placed a second mortgage on the home she had built on a lot she had bought on January 2, 1970. This is called the Monterrey property. Title was in her name alone. She transferred this property to the son's corporation on January 5, 1976. Her husband, as is customary, joined in the deed. At the time of the transfer she did not know of or owe any federal income tax herself. She knew her husband was being audited, as on prior occasions.
7
The wife never received any proceeds from sale of the Monterrey property by the son's corporation, but it did provide her and her husband a house in which they lived on Harrison Street without paying rent.
8
The father also owned other properties (called the "twelve tracts") in connection with his failing real estate business. They were also conveyed by father and mother to the son's corporation. The corporation assumed the mortgages on these tracts and purchased them at foreclosure sales.
9
As a result of the above-recited transfers both father and mother were rendered insolvent, and the IRS could not collect taxes due by enforcing its lien.
10
On December 19, 1976 the father and mother executed a form 4549 permitting immediate assessment of tax liability for specified amounts for the years 1972 through 1975. Assessment took place on March 21, 1977. By their similar agreement tax liability for 1974 and 1975 was assessed on March 21, 1977. On May 19, 1977, a tax lien for all years was filed against them both.
11
Whether any of the foregoing transfers were fraudulent is to be determined under Alabama law. Commissioner v. Stern, 357 U.S. 39, 42-45, 78 S. Ct. 1047, 1049-51, 2 L. Ed. 2d 1126 (1958). All parties are in accord that the Alabama statute on fraudulent conveyance1 requires three elements to establish the existence of a fraudulent conveyance: (1) a creditor to be defrauded; (2) a debtor intending to defraud; and (3) a conveyance of property out of which the creditor could have realized his claim or a portion thereof. Roddam v. Martin, 285 Ala. 619, 235 So. 2d 654, 657 (1970). Constructive fraud is recognized when an insolvent debtor makes a voluntary conveyance of property to avoid its transfer to a creditor. An existing creditor at the time of the conveyance may have it set aside either because of actual fraud or on account of constructive fraud. A subsequent creditor may set it aside only for actual fraud. Smith v. Wilder, 270 Ala. 637, 120 So. 2d 871, 882 (1960). If there is no evidence that the grantor was insolvent, failing, or financially embarrassed at the time of the conveyance, and the consideration was a new one (not resting on a prior indebtedness) the grantee need show only valuable consideration (substantial and not merely nominal) rather than adequate. Ibid., 883. To the same effect see J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834, 841-44 (1981), quoting from Smith v. Wilder. Inadequate consideration may be a circumstance tending to prove actual fraud, which is not to be presumed but may be proved by circumstantial evidence. Muscogee Construction Co. v. Peoples Bank & Trust Co., 286 Ala. 258, 238 So. 2d 883, 886-87 (1970).
12
Applying the Alabama law, we conclude, with respect to the Monterrey property, that the IRS was not an existing creditor at the time of the conveyance by the mother on January 5, 1976, and is not entitled to set it aside. The property was in her name alone, and there was no liability on her part at that time for any taxes due and owing by her husband. Later, on December 19, 1976, when she signed a form 4549, she acknowledged joint liability with her husband for his tax deficiencies.
13
With respect to the other so called "twelve tracts" we conclude that appellant is in by the judicial sale at foreclosure, which gives it a good and valid title. A collateral attack on the judicial sale could be successful only upon proof of conduct to chill the bidding or otherwise defeat the operation of what President Reagan likes to call "the magic of the marketplace." If publication had been made in an obscure country weekly newspaper rather than in the Atlanta Constitution, or prospective bidders had been lured into a tavern and plied with drinks so that they forgot to attend the sale, or had been threatened and coerced into staying away, the normal market function might have been defeated and the sale invalid. But where, as here, the judicial sale is freely and fairly conducted, it sets per se the value of the property sold. Other bidders than the holders of the mortgages would have offered more than the amount of the mortgage if in their opinion the property was worth more.
14
Since the conveyances both of the Monterrey property and the other "twelve tracts" were not fraudulent, the delinquent taxes of Cope, Sr. can not be collected from the appellant corporation of Cope, Jr. under 26 U.S.C. 6901. The judgment of the Tax Court is
15
REVERSED.
*
Honorable Edward Dumbauld, Senior U.S. District Judge of the Western District of Pennsylvania, sitting by designation
1
All conveyances or assignments in writing, or otherwise, of any estate or interest in real or personal property and every charge upon the same made with intent to hinder, delay or defraud creditors, purchasers or other persons of their lawful actions, damages, forfeitures, debts or demands and every bond or other evidence of debt given, action commenced or judgment suffered with the like intent, against the persons who are or may be so hindered, delayed or defrauded, their heirs, personal representatives and assigns, are void. [Ala.Code (1975) Sec. 8-9-6] | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1994426/ | 431 Pa. 284 (1968)
Reitmeyer, Appellant,
v.
Sprecher.
Supreme Court of Pennsylvania.
Argued April 24, 1968.
July 1, 1968.
*285 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
James F. McClure, Jr., for appellants.
Richard Henry Klein, for appellee.
OPINION BY MR. JUSTICE JONES, July 1, 1968:
This appeal presents a narrow, albeit an important, issue: is a landlord subject to liability in tort for physical harm caused to his tenant by a defective condition of the leased premises which existed when the written lease was executed and which the landlord orally promised the tenant, when the lease was executed, that he would repair?
This matter comes before us on two pleadings, i.e., a complaint in trespass and preliminary objections thereto, in the nature of a demurrer, which allege that the complaint facts do not set forth a cause of action.
Meda Reitmeyer and Joe Reitmeyer [Reitmeyers] executed a printed lease for one of four row houses the owner of which was Harold Sprecher. Allegedly, the rear porch floor of the leased premises approximately three feet above ground, access to which is by three wooden steps was defective where the wooden porch floor overhung the top step and, allegedly, such defect was known to Sprecher. At the time of execution of the lease and, in consideration thereof, allegedly, *286 Sprecher orally promised to repair promptly or to provide promptly the materials to repair the leased premises including specifically repair of the rear porch floor and steps and, in reliance upon such promise, Reitmeyers executed the lease and took possession of the premises. Sprecher subsequently repeated the original oral promise to make repairs to the premises. Approximately two months after execution of the lease and the entry of Reitmeyers into possession of the premises, Mrs. Reitmeyer fell and injured herself as a result of a defect in the rear porch floor. Sprecher had not made any repairs nor had he provided materials for repairs as promised.[1]
Reitmeyers instituted an action of trespass against Sprecher in the Court of Common Pleas of Union County by the filing of a complaint to which Sprecher filed preliminary objections. The court sustained the preliminary objections and dismissed the action. From that order the instant appeal stems.
Thirty-one years ago, on substantially similar facts, in Harris v. Lewistown Trust Co., 326 Pa. 145, 191 A. 34 (1937) we held that a promise on the part of a landlord to repair the premises, made at the time of negotiation of the lease and subsequently repeated, which was not performed did not impose upon the landlord a liability in tort at the suit of the tenant for injuries sustained by the tenant.
Counsel for Reitmeyers frankly concedes that, unless we now overrule Harris, Harris governs the instant situation and requires affirmance of the court below. What counsel for Reitmeyers urges is that Harris be reconsidered and overruled and that we adopt § 357 of Restatement 2d, Torts, which enunciates a view contrary to that expressed by this Court in Harris.
*287 Section 357, supra, provides:
"Where Lessor Contracts to Repair. A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if (a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and (b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor's agreement would have prevented, and (c) the lessor fails to exercise reasonable care to perform his contract."[2] Counsel for Reitmeyers argues that, although the majority of the jurisdictions of the American courts still adhere to the Harris view and reject the Restatement view, as of 1964 "An increasing minority of the courts, by now only slightly less in number, have worked out a liability in tort for such injuries to person or property, finding a duty arising out of the contract relation." (Quoting Prosser, Torts, at 422 (3d ed. 1964), and that "As of this writing, twenty jurisdictions reject the tort liability, and seventeen accept it. The latter include Illinois and Mississippi, which make qualifications." (Quoting Prosser, supra, at 422, n. 32).
In re-examining Harris, we initially note that the instant issue does not involve a landlord's promise to repair which is not supported by consideration wherein no duty on the part of the landlord can arise (Singer v. Eastern Columbia, Inc., 72 Cal. App. 2d 402, 164 P.2d 531 (1945)) nor a situation wherein the landlord has undertaken to make repairs and has done so negligently *288 in which situation a duty on the part of the landlord does arise (Green v. Independent Oil Co., 414 Pa. 477, 485, 201 A.2d 207 (1964); Pascarella v. Kelley, 378 Pa. 18, 23, 105 A.2d 70 (1954); Fleming v. Philadelphia Co., 234 Pa. 74, 82 A. 1095 (1912)). Moreover, we are mindful that this Court, in Hayden v. Second National Bank of Allentown, 331 Pa. 29, 31, 199 A. 218 (1938), speaking of the principles enunciated in Harris, stated: ". . . from them we have no intention to depart".
The framers of § 357, supra, have clearly set forth their reasons for rejection, by implication, of the Harris rule and the adoption of a rule imposing liability. Such reasons may be summarized: (a) an "increasing recognition of the fact that tenants who lease defective premises are likely to be impecunious and unable to make the necessary repairs which their own safety and that of others may demand; that one who is in possession of the premises only for a limited term does not have the same incentive to maintain them in good condition as the lessor to whom they will revert at the end of the lease; and that the landlord who receives benefit from the transaction in the form of rent may properly be required to assume in return at least certain limited obligations with respect to the safety of others";[3] (b) by reason of the special relation between a landlord and a tenant, there is a likelihood that the latter will rely upon the former to make repairs and be induced to forego efforts which he would otherwise make to remedy dangerous conditions on the premises; (c) while the landlord retains no right to exclude anyone from the land or control its use and his right to enter arises only from an agreement to repair the land, at least to the extent of his undertaking, the landlord retains a form of "control" over the premises; (d) *289 while the landlord does not insure the safety of the premises, he does have a duty which, although founded on a contract, is a duty cognizable in tort and the landlord should be liable if his failure to make repairs in accordance with his undertaking is due to his failure to exercise reasonable care to that end; (e) by analogy to a situation where an apartment or office can be used with safety only if light and heat is provided and in the lease the landlord agrees to provide such service, the landlord should be subject to liability for bodily harm caused by a failure to exercise reasonable care to make the premises safe.[4] With the possible exception of the fictitious "control" theory under (c) supra, the reasons advanced are sound.
Negligence, not simply the breach of the agreement to repair, is the gist of the action in tort and the agreement to repair does not render the landlord liable unless he has knowledge of the defect when the lease is executed and the agreement to repair made and then only when consideration can be found to support the agreement to repair.[5]
We must recognize the fact that, since the time when Harris was decided, critical changes have taken place economically and socially. Aware of such changes, we must realize further that most frequently today the average prospective tenant vis-a-vis the prospective landlord occupies a disadvantageous position. Stark necessity *290 very often forces a tenant into occupancy of premises far from desirable and in a defective state of repair. The acute housing shortage mandates that the average prospective tenant accede to the demands of the prospective landlord as to conditions of rental, which, under ordinary conditions with housing available, the average tenant would not and should not accept.
No longer does the average prospective tenant occupy a free bargaining status and no longer do the average landlord-to-be and tenant-to-be negotiate a lease on an "arm's length" basis. Premises which, under normal circumstances, would be completely unattractive for rental are now, by necessity, at a premium. If our law is to keep in tune with our times we must recognize the present day inferior position of the average tenant vis-a-vis the landlord when it comes to negotiating a lease.
In the case at bar, it is alleged that, as an inducement to the execution of the instant lease for premises which were obviously in a defective condition, the landlord promised the tenant to remedy this defective condition and, in reliance upon that promise a lease was negotiated.[6]
Under the instant circumstances, a duty on the part of the landlord arose to repair and render safe the defective condition of the premises and if, as alleged, physical harm was caused to the tenant, by a breach of the landlord's promise to repair, liability in tort on the part of the landlord should arise. As we said in Evans v. Otis Elevator Co., 403 Pa. 13, 18, 168 A.2d 573 (1961): "It is not the contract per se which creates the duty; it is the law which imposes the *291 duty because of the nature of the undertaking in the contract." Such holding is based upon the common sense of the situation and in line with the most rudimentary principles of justice.
To the extent that Harris v. Lewistown Trust Co. and Hayden v. Second Nat. Bank of Allentown are in conflict with the Restatement 2d, Torts, § 357, they are hereby expressly overruled.[7] We adopt Section 357 of Restatement 2d, Torts, as the sound and sensible approach to the instant problem.[8]
Order reversed.[9]
DISSENTING OPINION BY MR. CHIEF JUSTICE BELL:
The majority Opinion overrules three decisions of this Court which are right smack in point. The majority do this because all of a sudden the landlord-to-be and the tenant-to-be do not negotiate a lease on an "arm's length" basis, and the position of the average tenant vis-a-vis the landlord is today inferior as if this situation were different than ever before. If premises are in bad condition, it not only affects and lowers their sale value but likewise their rental value. There is no acute housing shortage (as the majority assert), and, if there were, it would not have arisen suddenly in the last three months after this Court decided Kolojeski v. John Deisher, Inc., 429 Pa. 191, 194, 195, 239 A.2d 329 (1968). In Kolojeski this Court decided for *292 the third time that a tenant could not recover in tort for injuries suffered by him due to a defective condition of the leased premises, which was known to the tenant and which the landlord had orally promised the tenant to repair. Kolojeski; and Harris v. Lewistown Trust Co., 326 Pa. 145, 191 A. 34 (1937); and Hayden et ux. v. National Bank of Allentown, 331 Pa. 29, 31, 199 A. 218 (1938); squarely govern the instant case, and to justify its present decision, they must, as the majority admit, be overruled.
In a Constitutional Republican form of Government such as ours, which is based upon law and order, Certainty and Stability are essential. Unless the Courts establish and maintain certainty and stability in the law, businessmen cannot safely and wisely make contracts with their employees or with each other; the meaning of wills, bonds, contracts, deeds and leases will fluctuate and change with each change in the personnel or in the changing views of a Court; property interests will be jeopardized and frequently lost or changed; Government cannot adequately protect law-abiding persons or communities against criminals; private citizens will not know their rights and obligations; and public officials will not know from week to week or month to month the powers and limitations of Government. This has been recognized for centuries by English-speaking peoples. Lord COKE, Chief Justice of England, thus wisely expressed (circa 1600) these truths: "The knowne certaintie of the law is the safetie of all." This has been a beacon light for Anglo-American Courts, for text authorities, and for law-abiding Americans ever since the foundation of our Country. In the realm of the law it is usually expressed in the principle known as Stare Decisis. Stare Decisis is one of the bed-rocks upon which the House of Law has been erected and maintained.
*293 It is obvious, if we are to progress, that there always will be exceptions to every general rule or principle, and that neither the law nor the principle of Stare Decisis can or should be as immutable as the laws of the Medes and the Persians. However, the instant case does not fall within any of the exceptions to the principle of Stare Decisis.[*]
What is the use of talking about Stare Decisis, or increased litigation, or the terrible backlog of cases, if a majority of this Court bury Stare Decisis at their daily or weekly or monthly wish or whim? And what, may I ask, happens to the parol evidence rule and the doctrine of assumption of risk, or of contributory negligence?
For these reasons, I vigorously dissent.
NOTES
[1] In passing upon the issue on this appeal, we must assume the verity of the facts well pleaded in Reitmeyers' complaint.
[2] The comment to § 357, supra, acknowledges that thus far the Restatement rule has "been adopted by only a minority of the American courts, and is still rejected by a majority of the courts which have considered it."
[3] Restatement 2d, Torts, §§ 356, comment a.
[4] Comment, Restatement 2d, Torts, § 357, comments b, c, d, e.
[5] Prior to the promulgation of the Harris rule, this Court, on at least two occasions, in considering the liability of a landlord to a third person for bodily harm caused by lack of repairs of the leased premises and enunciating a general rule exempting from liability the landlord, noted certain exceptions to this general rule one of which exceptions was where the landlord had contracted and agreed with the tenant to make repairs. See: Cunningham v. Rogers, 225 Pa. 132, 136, 73 A. 1094 (1909); Harte v. Jones, 287 Pa. 37, 39, 134 A. 467 (1926).
[6] In passing upon the issue, we do not pass upon the manner in which, under the parol evidence rule, such oral promise is to be proven or the admissibility into evidence of proof of such oral promise.
[7] Unfortunately, in dicta, this Court very recently in Kolojeski v. Deisher, Inc., 429 Pa. 191, 194, 195, 239 A.2d 329 (1968), quoted with approval Keiper v. Marquart, 192 Pa. Super. 88, 91, 159 A.2d 33 (1960), which reaffirmed the Harris rule. Such dicta should not be considered as authoritative.
[8] See: 163 A.L.R. 300. supplemented 78 A.L.R. 2d 1238. Cf. Eldredge, Modern Tort Problems, pp. 150-156 inc. (1941).
[9] Of course, the question of whether the injured tenant might have been guilty of contributory negligence is not before us on this appeal.
[*] Restifo v. McDonald, 426 Pa. 5, 13-18, 230 A.2d 199; and Michael v. Hahnemann Medical College and Hospital, 404 Pa. 424, 437-442, 172 A.2d 769. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2346092/ | 207 F. Supp. 2d 356 (2002)
McNEIL-PPC, INC., Plaintiff,
v.
L. PERRIGO COMPANY, and Perrigo Company, Defendants.
No. CIV.A. 01-1100.
United States District Court, E.D. Pennsylvania.
June 25, 2002.
*357 Dianne Brown Elderkin, Thomas D. Smith, Gwilym J.O. Attwell, Woodcock Washburn, LLP, Philadelphia, PA, Steven R. Trybus, Harry J. Roper, George S. Bosy, Sarah L. Taylor, Lisa M. Kattan, Aaron A. Barlow, Greg D. Bonifield, Timothy J. Baron, Eric L. Lohrenz, Raymond N. Nimrod, Roper & Quigg, Chicago, IL, for plaintiff.
Wayne A. Graver, Thomas Finarelli, Lavin, Coleman, O'Neill, Ricci, Finarelli & Gray, Philadelphia, PA, Douglas H. Siegel, *358 James A. Mitchell, Steven L. Underwood, Richena Y. Brown, Price, Heneveld, Cooper, DeWitt & Litton, Grand Rapids, MI, for defendants.
OPINION AND ORDER
SCHILLER, District Judge.
This is a patent infringement action. Plaintiff McNeil-PPC, Inc. ("McNeil") alleges Defendants L. Perrigo Company and Perrigo Company (collectively "Perrigo") infringe four McNeil patents covering a popular version of the Imodium® Advanced antidiarrheal. In a Memorandum and Order issued April 3, 2002, I construed certain disputed claim terms pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996). Beginning April 22, 2002, this matter was tried without a jury, and I enter the following Findings of Fact and Conclusions of Law as required by Rule 52(a) of the Federal Rules of Civil Procedure.[1]
FINDINGS OF FACT
I. BACKGROUND
This action pits a manufacturer of national brand pharmaceuticals against its competitor, a generic drug manufacturer. Four patents owned by Plaintiff McNeil are at issue in this case: United States Patents 5,248,505 ("the '505 patent")(PTX1) and 5,612,054 ("the '054 patent")(PTX2) are referred to as "the Garwin patents";[2] United States Patents 5,679,376 ("the '376 patent")(PTX3) and 5,716,641 ("the '641 patent")(PTX4) are referred to as "the Stevens patents."
A. Plaintiff's Product and the Patents in Suit
Plaintiff McNeil is a subsidiary of a well-known multi-billion-dollar company, Johnson & Johnson. Among other things, McNeil sells over-the-counter ("OTC") pharmaceuticals, including Tylenol® and Motrin®. (Eble TT at 58.)[3] McNeil's products can be found in nearly every pharmacy in the United States. (Eble TT at 77-79.)
An antidiarrheal drug known as loperamide is central to this matter. Loperamide, a non-addictive opiate, is believed to treat diarrhea in a number of ways, including: regulating muscular contractions in the intestine, limiting secretions in the intestinal tract, and relieving abdominal discomfort. (Levitt TT at 621-22; PTX721; DX157 at 37.)[4] Also important to the instant controversy is an oily liquid substance known as simethicone, which is employed as an antiflatulent. (Garwin TT at 137.)
During the 1980s, loperamide became the best-selling prescription antidiarrheal in the United States. (Snape TT at 1219.) In March 1988, McNeil began selling loperamide as the OTC product Imodium A-D. With the January 30, 1990 expiration *359 date for the basic loperamide patent fast approaching, McNeil directed one of its scientists, Dr. Jeffrey Garwin, to develop a new patent-protected form of loperamide. (Garwin TT at 133.) Pursuing this directive, Dr. Garwin developed a drug that combined loperamide with simethicone, and his resulting patent application, along with continuation applications, led to the issuance of the two Garwin patents: the '505 patent on September 28, 1993 and the '054 patent on March 18, 1997. (PTX1, 2.)
McNeil initially marketed the loperamide-simethicone combination drug as the Imodium Advanced chewable tablet. In developing the Imodium Advanced tablet, McNeil researchers became concerned that over time the simethicone interacted negatively with the loperamide, limiting the drug's shelf life. (Schwartz TT at 433.) In response, Dr. Charles Stevens and other McNeil researchers considered different ways of keeping an antidiarrheal separated from simethicone. (Schwartz TT at 438-39.) This work became the basis for the Stevens patents. (PTX3, 4.)
B. Perrigo's Abbreviated New Drug Application ("ANDA") and the Instant Litigation
With sales exceeding $800 million per year, Defendant Perrigo is the world's largest manufacturer of store brandcommonly referred to as "generic"OTC pharmaceutical products. (Needham TT at 798, 800, 804; DX158.) Major retail chains such as Wal-Mart, Rite-Aid, and CVS sell Perrigo's products under their stores' respective labels. (Needham TT at 800, 803.) Perrigo's store brand products generally cost thirty to forty percent less than corresponding national brand products. (Needham TT at 800.)
Perrigo competes with McNeil in the antidiarrheal market. After the basic loperamide patent expired in the late 1980s, Perrigo began marketing a store brand loperamide product similar to McNeil's Imodium-A-D tablet. (Needham TT at 813-14.) When McNeil introduced the Imodium Advanced combination drug, Perrigo became interested in developing a loperamide-simethicone product in order to better compete in the antidiarrheal market. (Needham TT at 814-15.) Pursuing this interest, Perrigo consulted outside patent counsel, who rendered a final opinion that Perrigo's proposed loperamide-simethicone product would not infringe the Stevens patents and that the Garwin patents were invalid. (Needham TT at 823-27.)
In November 2000, Perrigo filed an Abbreviated New Drug Application with the FDA seeking the approval of a loperamide-simethicone combination tablet. Thereafter, Perrigo sent a Patent Certification Notice Letter informing McNeil that McNeil's patents were invalid or not infringed by Perrigo's ANDA drug. (PTX14.) On March 7, 2001, McNeil filed suit against Perrigo, alleging the infringement of a host of patent claims. Subsequently, McNeil twice amended its complaint, narrowing the patent claims at issue.
II. The Garwin Patents
Upon its approval by the Food and Drug Administration ("FDA") in 1977, Janssen Pharmaceutica ("Janssen"), a Johnson & Johnson subsidiary, began selling loperamide as a prescription drug. (Eble TT at 65; DX16 at MC13403-06.) McNeil inherited loperamide from Janssen. After loperamide was approved as an OTC drug in 1988, McNeil began selling loperamide as Imodium A-D. (Eble TT at 65-66; DX16 *360 at MC13404.) With the basic loperamide patent[5] set to expire within two years of McNeil's launch of Imodium A-D, McNeil asked Dr. Garwin "to come up with a patent-protected form of Imodium." (Garwin TT at. 131; DX104) Additionally, following McNeil's involvement in litigation that resulted in the invalidation of a patent combining ibuprofen and pseudoephedrine, see Richardson-Vicks, Inc. v. Upjohn Co., 122 F.3d 1476 (Fed.Cir.1997), Dr. Garwin was instructed "to think more aggressively about patents." (Garwin TT at 123-24; DX6 at MC73095). Dr. Garwin described McNeil's reaction to the Richardson-Vicks litigation as follows:
[T]here was concern at McNeil that there might be other sleeper patents out there that could inhibit McNeil's ability to work in the area where McNeil was already working or planning to work, and if there were patents to be had, McNeil wanted to havewanted us to think of them first.
(Garwin TT at 123.)
Following these instructions, Dr. Garwin considered whether a loperamide-based product could relieve certain diarrhea-related symptoms such as flatulence. (Garwin TT at 115-16.) On November 1, 1989, Dr. Garwin filed his first patent application, claiming the combination of simethicone with certain antidiarrheals, including loperamide. (PTX5 at 20-22.)[6]
A. The Garwin Patents' Claims at Issue
Claims 14 and 16 of the '505 patent and claim 15 of the '054 patent are at issue. These claims read as follows:
The '505 Patent[7]
A method for treating a human suffering from an intestinal disorder characterized by the symptoms of diarrhea and flatulence or gas comprising administering to said human in a combined pharmaceutical composition, an effective amount of an antidiarrheal compound selected from the group consisting of loperamide, bismuth subsalicyclate, diphenoxylate, polycarbophil, their pharmaceutically acceptable salts and mixtures thereof; and an antiflatulent effective amount of simethicone, wherein the amount of simethicone administered is 125 mg per dosage unit and the amount of loperamide administered is 2 mg per dosage unit.
Claim 15 of the '054 Patent[8]
A composition of treating a human suffering from an intestinal disorder characterized by the symptoms of diarrhea and flatulence or gas comprising: an effective amount of an antidiarrheal compound selected from the group consisting of loperamide, bismuth subsalicyclate, diphenoxylate, polycarbophil, their pharmaceutically acceptable salts and mixtures thereof; and an antiflatulent effective amount of simethicone, comprising 125 mg of simethicone and 2 mg of loperamide.
B. Prosecution History[9]
During the course of the lengthy prosecution of the Garwin patents, McNeil's attorneys[10]*361 made a number of erroneous representations. Two such representations are of critical importance. First, McNeil incorrectly argued to the Patent and Trademark Office ("PTO") that Dr. Garwin had discovered the concurrence of diarrhea and flatulence:
It is Applicant's recognition of this problem, i.e., the concurrence of diarrhea and flatulence as indicated in a proprietary survey of patents which forms the basis of the present invention. The invention, therefore, lies not in the discovery of a novel solution to this problem, but in the discovery of the problem itself.
(DX12, p. 48, 67.)
Although his belief to contrary may have been sincere, Dr. Garwin did not discover the concurrence of diarrhea and gas. Moreover, with the exception of a relatively obscure reference in the Handbook of Nonprescription Drugs ("Longe reference") (DX12 at 326), McNeil's attorneys failed to provide the Examiner with evidence that would have called into question McNeil's assertion that Dr. Garwin had discovered the concurrence of diarrhea and flatulence.[11] In fact, as identified by one of Perrigo's experts, Dr. Michael Levitt, more than twenty prior art articles and publications noted the concurrence of diarrhea and gas-related symptoms. (Levitt TT at 711; PTX420 at 15-18.) As an important example, in the 1983 edition of Sleisenger and Fordtran's leading textbook, Gastrointestinal Disease, a chapter entitled "Infectious Diarrhea," authored by Dr. Sherwood Gorbach ("Gorbach reference"), included a table indicating that gas was associated with traveler's diarrhea in seventy-nine percent of occurrences. (Snape TT at1172, 1205; DX84-1 at 953.)[12]
Second, McNeil's attorneys permitted the Examiner to believe mistakenly that Dr. Garwin was the first to combine an antidiarrheal with simethicone. In allowing the '054 patent application to issue, the Examiner stated: "The present application . . . is allowable because there was not any prior art or references showing a composition comprising an effective amount of an antidiarrheal compound and an antiflatulent compound." (DX13 at 186.) Despite having an opportunity to comment on the Examiner's reasons for allowance, McNeil *362 failed to take any action to correct this error. (DX13 at 184.) More importantly, as is explained below, prior artincluding prior art not presented to the Examiner disclosed such a combination.[13]
C. Scope and Content of the Prior Art
1. Antidiarrheals and Antiflatulents at the Time of Dr. Garwin's Alleged Discovery
By the time of the claimed invention, one of ordinary skill in the art would have known that loperamide was a commercially successful antidiarrheal. (Levitt TT at 585, 596-97.) Additionally, by the time of Dr. Garwin's alleged discovery, compounds such as attapulgite, polycarbophil, bismuth subsalicyclate, and activated charcoal were well-known antidiarrheals among those of ordinary skill in the art. (DX12 at 338-39.)[14]
Since 1974, the FDA has approved the use of simethicone in combination with other pharmaceuticals. (PTX75 at MC97921.) By the time of Dr. Garwin's claimed invention, simethicone was a well-known and increasingly popular antiflatulent, sold commercially in more than twenty-five products such as Gas-X® and Mylanta®. (DX87-2.)
The dosage regimen in the Garwin patents was not new. Other marketed OTC products contained 125 milligrams of simethicone. (DX87.) The amounts specified for loperamide in the Garwin patents were those already used in other OTC products, including Imodium A-D (DX87-2 at PER7645, 7648.)
2. Specific References
At least as early as 1980, an Australian pharmaceutical reference publication, the MIMS Annual ("MIMS reference"), included a reference to a product called "Diareze." (DX80.) One form of Diareze combined the antidiarrheal attapulgite with simethicone. (DX80 at PER3290.) In describing Diareze, the MIMS reference states: "Simethicone in the suspensions helps relieve the pain and discomfort of gaseous distention. . . ." (Id.)[15]
Second, the Chavkin patent covered, inter alia, the combination of polycarbophil and simethicone. (Levitt at TT 727; DX83.) Polycarbophil was a well-known antidiarrheal at the time of Dr. Garwin's alleged invention. (DX12 at 338-39.) Third, French Patent Publication 2,565,107 taught the use of activated charcoal and dimethicone. (Levitt TT at 725; DX81 at PER239.) Dimethicone is another name for simethicone. (DX132.) Before Dr. Garwin's alleged invention, activated charcoal had been used as an antidiarrheal. (Levitt TT at 595.)
*363 D. Differences Between the Claimed Invention and the Prior Art
Although the concept of combining an antidiarrheal with simethicone was not new to Dr. Garwin, the prior art does not disclose the exact combination at issue in this case. That is, the Garwin claims in suit combine simethicone with loperamide rather than attapulgite, activated charcoal, or polycarbophil. (Levitt TT at 606-08.)[16]
E. Date of Invention and Requisite Level of Skill in the Art
The parties have agreed that "[t]he Garwin '054 and '505 patents relate to the field of identifying combinations of active ingredients for commercial medications for symptoms of diarrhea in conjunction with one or more additional gastrointestinal symptoms." (DX571, McNeil's Resp. to Interrog. 6.)
The date of Dr. Garwin's alleged invention is November 1, 1989, the filing date of the patent application.[17] At that time:
One of ordinary skill in the art of the Garwin '054 and '505 patents would have been a medical doctor with pharmaceutical or clinical research experience, or a chemist, biochemist, or pharmacologist with a doctoral degree and with experience in the pharmaceutical industry, and either of which would also have had ability in identifying appropriate and acceptable combinations of active ingredients for commercial medications for symptoms of diarrhea in conjunction with one or more additional gastrointestinal symptoms.
(DX571, McNeil's Resp. to Interrog. 7).
In addition, one of ordinary skill in the art would have known that loperamide was *364 a commercially successful prescription antidiarrheal. (Levitt TT at 595-96.)
F. Motivation to Combine
To counter the powerful attraction of a hindsight-based obviousness analysis, the case law makes clear that Perrigo must show that there was some motivation, suggestion, or teaching of the desirability of making the specific combination at issue. See, e.g., In re Lee, 277 F.3d 1338, 1343 (Fed.Cir.2002). In this case, there was abundant motivation to combine loperamide with simethicone. As Dr. Levitt testified:
[At the time of Dr. Garwin's claimed invention] you want to make a combination that treats diarrhea and gas. The concept is out there. The question is what products are you going to use, and you're very likely to use, obvious to use, the best-selling antidiarrheal in the United States and combine it with essentially the only compound you can combine it with, which is simethicone, which is the one compound that is approved as efficacious for gas problems in the United States.
(Levitt TT at 670.)[18] Put differently, the prior art, especially the teachings of those references that disclosed the concurrence of diarrhea and flatulence (e.g., the Gorbach reference) together with those references that combined antidiarrheals with simethicone (the Chavkin patent, French patent, and the MIMS reference) would have clearly suggested this combination to one of ordinary skill in the art. (Levitt TT at 605-07.)[19]
G. Secondary Considerations
The so-called "secondary considerations" are part of the obviousness analysis. Secondary considerations, which relate to objective evidence of nonobviousness, include evidence of commercial success, unexpected results, and copying of the claimed invention.
1. Imodium Advanced in the Marketplace
Evidence of commercial success is a secondary consideration. With the FDA's approval, McNeil began selling Imodium Advanced in 1997. (Eble TT at 75; McDonagh TT at 181.) Around the same time, McNeil launched a massive $45 million marketing and advertising campaign. (DX67, 135.) McNeil described its marketing plan for Imodium Advanced's introduction in a sales publication: "With this *365 heavy media-spending plan, Imodium will significantly out-spend all other competitors and remain the category share-of-voice leader." (DX67 at MC36404.)
In 1997, sales of Imodium Advanced neared $10 million, and approached $27.7 million in 1998, the product's first full year of sales. (McDonagh TT at 181-82; Wang Goodrich TT at 233, 236; PTX57.) After an initial period of rapidly gaining market share, the rate of Imodium Advanced's sales' increases slowed. (PTX57.)[20] Moreover, McNeil's Imodium A-D product, which contains loperamide without simethicone, remains on the market. (PTX57, 465.) As McNeil recognizes, sales of Imodium Advanced products have come at the expense of sales of Imodium A-D. (Wang Goodrich TT at 274; PTX57.) For the years 1998 through 2001, sales of Imodium Advanced chewable tablets were relatively flat. (PTX57.)[21] In addition, the total amount of sales of Imodium Advanced chewable tablets and Imodium A-D products has also been relatively flat over the same period. (Id.)
2. McNeil's Clinical Studies, Unexpected Results, and Synergy
In light of Dr. Garwin's proposal to combine loperamide and simethicone, McNeil proceeded with an initial clinical study of the combination's safety and efficacy. Based on the study's results, McNeil decided to pursue further studies. (PTX123 at MC16631.) Thereafter McNeil conducted three additional clinical studies of a single tablet combining loperamide with simethicone. That tablet was compared to loperamide alone, simethicone alone, and a placebo. (PTX123 at MC16631; PTX111, 114, 118.) Some of these studies' findings were submitted to the FDA. (PTX63 at PER3501.)
Evidence of unexpected results or synergy may be introduced to a show a claimed invention's nonobviousness. McNeil contends that the combination claimed in the Garwin patents provides unexpectedly enhanced diarrhea relief, including faster relief in the critical first twelve hours, and that the claimed combination also provides unexpectedly enhanced gas relief. In addition, McNeil argues that these clinical studies demonstrate the existence of synergy for the combination drug during the first twelve hours after the initial dose. These contentions are supported by statistical analysis. (Thibodeau TT at 517-19, 526; Kuskowski TT at 767, 773-74; PTX491 at 2, 4, 6; DX676.)[22]
Nonetheless, there are problems with the underlying studies that significantly limit their probative value. First, the results of the individual studies were inconsistent and not readily reproducible. (Levitt TT at 652-53.) Second, McNeil's studies compare only the loperamide-simethicone combination to its components individually and to a placebo, and not to a combination of simethicone and another antidiarrheal. (PTX111, 114, 188, 123 at MC16631.) Third, the studies measured *366 gas relief based solely on subjective criteria such as "mild," "moderate," "moderately severe," and "severe." (PTX111 at MC13741; Kaplan TT at 332-33.) Fourth, it is not clear that it is proper to combine all four studies for the purposes of statistical analysis. (Thibodeau TT at 528-30.)
Moreover, in assessing McNeil's evidence of unexpected results, it is significant that as a self-limiting disease, diarrhea "go[es] away on its own, without any treatment." (Kaplan TT at 311.) Within forty-eight hours of its onset, diarrhea "tend[s] to go away." (Thibodeau TT at 547). Thus, the amelioration of symptoms may be due to pharmaceutical treatment or the mere passage of time. Among other things, this fact counsels against accepting McNeil's sweeping assertions that the clinical studies show unexpected results and synergy that are not merely statistically significant, but biologically and medically significant as well.
In view of these problems with the studies and when considering the data as a whole, they largely confirm what one would expect, namely that loperamide is good for treating diarrhea and contributing to the relief of abdominal discomfort, and that simethicone contributes to the relief of abdominal discomfort. (Levitt TT at 621-22, 648.)
3. Copying
Evidence that others have copied the claimed invention is objective evidence of nonobviousness. However, Perrigo did not copy the claimed invention. (Needham TT at 807, 828.)[23] In developing its ANDA product, Perrigo tested a number of different formulations over several years. (PTX10 at 1757-2031.)
III. STEVENS PATENTS
A. Claims at Issue
Like the Garwin patents, the Stevens patents disclose a drug combining loperamide and simethicone. The Stevens patents add an impermeable polymeric barrier separating the simethicone from the loperamide. (PTX3, col. 12 line 54col. 14, line 3; PTX4, col. 12 line 60col. 14, line 22.) It is theorized that simethicone migrates over time and surrounds the loperamide, hindering its dissolution; by attempting to prevent this migration, the Stevens patents are aimed at an "extended shelf life" and "improved stability." (PTX3, '376 patent, col. 3, line 50-57; col. 12, line 48.) The following claims in the Stevens patents are at issue:
Claims 1 and 2 of the '376 Patent
1. A solid oral dosage form for the treatment of gastrointestinal distress comprising a therapeutically effective amount of a pharmaceutical for the treatment of gastric disorders selected from the group consisting of diphenoxylate, loperamide, loperamide-N-oxide, pharmaceutically acceptable salts thereof, and combinations thereof; and
A therapeutically effective amount of simethicone wherein the oral dosage form has a first portion containing the pharmaceutical and a second portion containing simethicone and the first and second portions are separated by a pharmaceutically acceptable polymeric barrier, which is impermeable *367 to simethicone and the pharmaceutical.
2. The solid dosage form of claim 1 wherein the pharmaceutical comprises loperamide HCl.
Claim 1,2 and 3 of the '641 Patent
1. A method of enhancing the dissolution profile of a pharmaceutical from a solid dosage form comprising the pharmaceutical and simethicone, comprising:
providing the pharmaceutical in a first portion of said dosage form, said pharmaceutical is selected from the group consisting of diphenoxylate, loperamide and loperamide-N-oxide, pharmaceutically acceptable salts thereof, and combinations thereof;
providing the simethicone in a second portion of said dosage form; and separating said first and second portions with a pharmaceutically acceptable polymeric barrier which is impermeable to simethicone and the pharmaceutical.
2. The method of claim 1 wherein the pharmaceutical is selected from the group consisting of loperamide, loperamide-N-oxide, pharmaceutically acceptable salts thereof and combinations thereof.
3. The method of claim 1 wherein the pharmaceutical contains loperamide HCl.
Pursuant to Markman, I previously construed disputed claim terms. Specifically, the term "portion" was construed as "a part of the whole"; the term "polymeric barrier" was construed as "a material that is a polymer or contains polymers and which separates the first portion from the second portion"; and the term "impermeable to simethicone and the pharmaceutical" was interpreted as meaning "not permeable, impassable to simethicone and the pharmaceutical."
B. Perrigo's ANDA Product
Perrigo employs a four-step process to make its ANDA product, which is a bilayer tablet. In the first step, the loperamide is formulated into granules. (Schwartz TT at 402; PTX14 at PER930-43; PTX490 at PER10102-10119.)[24] In making the granules, Perrigo agglomerates two milligrams per tablet of loperamide with 148 milligrams per tablet of other materials, namely dextrates, sodium starch glycolate, microcrystalline cellulose, pre-gelatinized starch, and water. During the granulation process, the starch acts as an adhesive, causing the various particles to stick together. (Celik TT at 883-87; Schwartz TT at 405-410.) These granules are blended with various inactive ingredients, making a loperamide layer mix. (PTX14 at PER934; Schwartz TT at 405-06; Danielson Dep. I at 93:10-17.) Next, Perrigo blends simethicone powder with inactive ingredients to make a simethicone layer mix. (Schwartz TT at 402; PTX14 at PER936-40; DX146.) Finally, Perrigo compresses these layers to form a bilayer tablet. (Schwartz TT at 402; PTX14 at 937, 941; DX146.)
C. Impermeable Polymeric Barrier[25]
The Stevens patents disclose tablets employing a polymeric barrier that is impermeable *368 to loperamide and simethicone, separating the loperamide in a first portion of the tablet from the simethicone in a second portion. More specifically, the barrier materials disclosed in the Stevens patents form films having smooth surfaces which are not permeable to liquids in general, or simethicone in particular. (DX583, 665, 666.) With respect to the infringement of the Stevens patents, the parties essentially agree that this dispute turns solely on whether the Perrigo's ANDA product employs an impermeable polymeric barrier. (Pl.'s Post-Trial Br. at 46.)
Simply, Perrigo's product does not contain an impermeable barrier. Rather than being buried in the granules, as McNeil contends, loperamide particles in Perrigo's ANDA product are exposed on the surface of the granules. (Celik TT at 888-90l; DX638.) Additionally, in at least three different ways, Perrigo's granules have been readily shown to be permeable. First, mercury porosity tests show that Perrigo's granules are highly permeable. (Celik TT at 897-99; DX670.) Second, the mercury porosity tests confirm that the loperamide granules have relatively large openings through which simethicone can pass. (Celik TT at 900; DX666.) Third, Perrigo's granules tend to wick, or soak up the simethicone. (Celik TT at 901-02; DX31 at MC6681.) That is, Perrigo's granules in fact absorb simethicone.[26]
McNeil takes the position that Perrigo's granules are impermeable because Perrigo's ANDA product shows a good dissolution profile with respect to loperamide. (Schwartz TT at 475.) This arguments fails, however, because it is inconsistent with the Court's Markman ruling, in which I rejected McNeil's proposed construction of impermeability that referred to the rate of dissolution of the loperamide. Additionally, the testimony of McNeil's witnesses belies the contention that impermeability is determined with respect to the rate of dissolution. In particular, Dr. Joseph Schwartz has conceded that good dissolution results can be obtained without infringing the Stevens patents. (Schwartz TT at 480.)
C. Obviousness of Stevens Patents
1. Date of Invention and Requisite Level of Skill in the Art
For present purposes, the date of invention is the filing date of the Stevens patents, May 21, 1992. Like the Garwin patents, the Stevens patents relate to the field of formulating commercial combination patents. (DX571; McNeil's Resp. to Interrog. 6.) Similarly, at the time of the claimed invention one of ordinary skill in the art was a person having a doctorate degree in pharmaceutics or chemistry, and practical experience in the field of formulating commercial combination medications. (DX571; McNeil's Resp. to Interrog. 7.)
2. Scope and Content of the Prior Art
a. Garwin Patents
The Garwin patents, in Examples I and II, teach the separation of loperamide *369 from simethicone by putting the two into separate tablet layers. (PTX1, 2.) In these examples, the loperamide and the simethicone are separated by placing the two compounds in distinct layers.
b. Rider and Valentine Patents
United States Patent 4,198,390 ("the Rider patent") teaches that simethicone is at least temporarily deactivated when combined with antacids. (DX61.)[27] More importantly, the Rider patent teaches that due to the problem of the antacid ingredients deactivating the simethicone one should use a barrier between the antacid and the simethicone. (Id. at col. 2, lines 38-44; col. 5, lines 11-12.)[28] In addition, United States Patent 5,073,384 ("the Valentine patent") teaches that simethicone migration is prevented when the simethicone is adsorbed onto maltodextrin. (DX90.)[29]
3. Differences Between the Claimed Invention and the Prior Art
The Garwin patents teach the separation of loperamide and simethicone into two separate layers, whereas the Stevens patents add an impermeable polymeric barrier between the two layers. The Rider patent separates simethicone from an antacid by employing an impermeable polymeric barrier.
4. Motivation to Combine
The pertinent prior art references suggest to one of ordinary skill in the art that the loperamide should be in one layer of the tablet and the simethicone in the other, with an impermeable polymeric barrier between the two. Specifically, the Garwin patents provide the motivation to separate loperamide into one layer of a bilayer tablet, and simethicone into the other. Furthermore, the Rider patent motivates an artisan to include an impermeable polymeric barrier in order to prevent the simethicone from migrating from one layer to an adjacent pharmaceutical-containing layer. (DX61, col. 2, lines 38-44, col. 5, lines 11-12.)[30]
CONCLUSIONS OF LAW
I. HATCH-WAXMAN ACT
It is significant that the parties in this action are a drug manufacturer and its generic competitor. In enacting the Drug Price Competition and Patent Term Restoration *370 Act of 1984, Pub.L. No. 98-417, 98 Stat. 1585 (1984), codified at 21 U.S.C. §§ 355, 360cc, and 35 U.S.C. §§ 156, 271 (the "Hatch-Waxman Act"), Congress struck a balance between two competing policy interests: (1) inducing pioneering research and development of new drugs, and (2) enabling competitors to bring low-cost, generic copies of those drugs to market. Pursuant to the Hatch-Waxman Act, a manufacturer that seeks to market a generic drug may submit an ANDA for approval by the FDA, rather than submitting a full New Drug Application ("NDA") concerning the safety and efficacy of the generic drug. Likewise, the generic manufacturer may rely on safety and efficacy studies previously submitted by the pioneer manufacturer by submitting information showing the generic drug's bioequivalence with the previously approved drug product. See 21 U.S.C. § 355(j)(2)(A). See generally Andrx Pharms., Inc. v. Biovail Corp., 276 F.3d 1368, 1370-71 (Fed. Cir.2002).
Here, as the holder of an approved NDA for a chewable loperamide and simethicone tablet, McNeil enjoys a period of exclusivity for its combination product without regard to the protection, if any, afforded by the patent laws. If the patent-holder files suit, the FDA will not approve a generic for marketing under an ANDA until the patent has expired, thirty months have passed since the patentee received notice of the ANDA, or the suit is resolved. See Merck & Co. v. Kessler, 80 F.3d 1543, 1552 (Fed.Cir.1996).
II. INVALIDITY OF GARWIN PATENTS
With respect to the earlier Garwin patents, Perrigo concedes that its ANDA product literally infringes claims 14 and 16 of the '505 patent, and claim 15 of the '054 patent, if they are valid. See 35 U.S.C. § 271(e)(2)(defining submission of ANDA as act of infringement). Therefore, the issue with respect to the Garwin patents is whether those patents are invalid as obvious.[31]
A. Legal Standard for Obviousness
1. Presumption of Validity
Patents are presumed valid, and the law requires Perrigo, as the patent challenger, to prove invalidity by clear and convincing evidence. See, e.g., Tate Access Floors, Inc. v. Interface Architectural Res., Inc., 279 F.3d 1357, 1367 (Fed.Cir. 2002). Having conceded infringement, Perrigo must clear this high hurdle in order to prove the invalidity of the Garwin patents.
2. Factors Related to Obviousness
Perrigo argues that claims of the Garwin patents at issue are invalid as obvious. A patent is invalid for obviousness:
[I]f the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
35 U.S.C. § 103. "Although it is well settled that the ultimate determination of obviousness is a question of law, it is also well understood that there are factual issues underlying the ultimate obviousness decision." McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1349 (Fed.Cir.2001) *371 (citing Richardson-Vicks, 122 F.3d at 1479.) Specifically, the obviousness analysis is based on four underlying factual inquiries: (1) the scope and content of the prior art; (2) the differences between the claims and the prior art; (3) the level of ordinary skill in the pertinent art; and (4) secondary considerations, if any, of nonobviousness. See Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966). "`[A] reasonable expectation of success, not absolute predictability' supports a conclusion of obviousness." Yamanouchi Pharm. Co. v. Danbury Pharmacal, Inc., 231 F.3d 1339, 1343 (Fed.Cir.2000)(quoting In re Longi, 759 F.2d 887, 896 (Fed.Cir.1985)).
B. Analysis of the Garwin Patents
1. Motivation to Combine
"In holding an invention obvious in view of a combination of references, there must be some suggestion, motivation, or teaching in the prior art that would have led a person of ordinary skill in the art to select the references and combine them in the way that would produce the claimed invention." Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1385 (Fed.Cir.2001). Furthermore, "[the] case law makes clear that the best defense against the subtle but powerful attraction of a hindsight-based obviousness analysis is rigorous application of the requirement for a showing of the teaching or motivation to combine prior art references." In re Dembiczak, 175 F.3d 994, 999 (Fed.Cir. 1999). This evidence may flow from the prior art references themselves, the knowledge of one of ordinary skill in the art, or, in some cases, from the nature of the problem to be solved. See Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573 (Fed.Cir.1996). Here, filtered through the knowledge of one skilled in the art, the prior art disclosed that flatulence is frequently a concurrent symptom of diarrhea, and that this problem can be addressed by combining a known antidiarrheal with simethicone. In addition, by the time of Dr. Garwin's claimed invention, loperamide was a well-known and successful antidiarrheal. Accordingly, there was a clear motivation to combine the loperamide and simethicone.
2. Perrigo's Prima Facie Case of Obviousness
Considering the date of invention and level of ordinary skill in the art, the scope and content of the prior art, the differences between the accused product and prior art, and the motivation to combine, Perrigo has made out a strong prima facie case of obviousness.
3. Secondary Considerations
A prima facie case of obviousness may be rebutted by secondary considerations. See, e.g., In re Rouffet, 149 F.3d 1350, 1355 (Fed.Cir.1998). Indeed, the secondary considerations "may often be the most probative and cogent evidence in the record" related to the issue of obviousness. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538 (Fed.Cir.1983). "[S]econdary considerations, when present, must be considered in determining obviousness." Ruiz v. A.B. Chance Co., 234 F.3d 654, 667 (Fed.Cir.2000). In this case, McNeil has advanced a number of arguments in an effort to rebut Perrigo's strong prima facie case of obviousness. These efforts, however, are unavailing.
a. Unexpected Results
The Federal Circuit has made clear that evidence of unexpected results may provide important evidence that a claimed invention should not deemed obvious:
One way for a patent applicant to rebut a prima facie case of obviousness is to *372 make a showing of "unexpected results," i.e., to show that the claimed invention exhibits some superior property or advantage that a person of ordinary skill in the relevant art would have found surprising or unexpected. The basic principle behind this rule is straightforward that which would have been surprising to a person of ordinary skill in a particular art would not have been obvious.
In re Soni, 54 F.3d 746, 750 (Fed.Cir. 1995). To show unexpected properties, McNeil must show enhancement in "one of a spectrum of common properties" when that enhancement would not have been expected by one of skill in the art. In re Chupp, 816 F.2d 643, 646 (Fed.Cir.1987). Here, although McNeil has presented evidence tending to show enhancement, there are compelling reasons to question the validity of the underlying clinical studies upon which that evidence is based, and McNeil's proposition that such evidence was unexpected is doubtful. The results of McNeil's clinical studies are also of limited relevance because they do not compare the loperamide-simethicone with the closest prior art, i.e., another antidiarrheal and simethicone. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed.Cir.1991).
b. Commercial Success
Sales of the Imodium Advanced tablet have been substantial, and the marketed product is the product disclosed in the Garwin patents. See Demaco Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392 (Fed.Cir.1988)("[A] prima facie case of nexus is generally made out when the patentee shows both that there is commercial success, and that the thing (product or method) that is commercially successful is the invention disclosed and claimed in the patent.") Nevertheless, the probative value of the commercial success of Imodium Advanced is significantly mitigated by the fact that Imodium Advanced's sales are the calculated result of an aggressive marketing campaign of unprecedented scope in the antidiarrheal market.[32]
c. Conclusion
Given the strong prima facie case of obviousness, including the clear motivation to combine, and the limitations and defects in the secondary evidence presented by McNeil, Perrigo has proven by clear and convincing evidence that claims 14 and 16 of the '505 patent and claim 15 of the '054 patent are invalid for obviousness. See Richardson-Vicks, 122 F.3d at 1483-84.
III. NONINFRINGEMENT OF STEVENS PATENTS
A. Literal Infringement Analysis
After determining the meaning and scope of the asserted patent claims pursuant to Markman, an infringement analysis entails a determination of whether the accused product or method meets each and every limitation of the properly construed claim. See, e.g., Tate Access Floors, Inc. v. Maxcess Techs., Inc., 222 F.3d 958, 964 (Fed.Cir.2000). See also Bai v. L & L Wings, 160 F.3d 1350, 1353 (Fed.Cir.1998)(determination of infringement is question of fact). For the reasons *373 set forth in the findings of fact, Perrigo does not literally infringe the asserted claims of the Stevens patents.
B. Infringement Under the Doctrine of Equivalents
If a claim element is not literally infringed, infringement may be found under the doctrine of equivalents if the accused product or method contains the equivalent of that claim element. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 40, 117 S. Ct. 1040, 137 L. Ed. 2d 146 (1997). As the law stood at the time of trial, when an amendment narrows the scope of a claim for a reason related to the statutory requirements for patentability, prosecution history estoppel acts as a complete bar to the application of the doctrine of equivalents to the amended claim element. See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 234 F.3d 558 (Fed.Cir.2000), vacated by 535 U.S. ___, 122 S. Ct. 1831, 152 L. Ed. 2d 944 (2002). McNeil admits that elements of the asserted claims of the Stevens patents were amended during prosecution for reasons related to patentability.
After the trial in this case had concluded, the United States Supreme Court decided Festo. In rejecting the Federal Circuit's complete bar rule, the Supreme Court concluded that although prosecution history estoppel can bar challenges to a wide range of equivalents, its reach requires an examination of the subject matter surrendered by the narrowing amendment:
There are some cases . . . where the amendment cannot reasonably be viewed as surrendering a particular equivalent. The equivalent may have been unforeseeable at the time of the application; the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question; or there may be some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question. In those cases the patentee can overcome the presumption that prosecution history estoppel bars a finding of equivalence.
Id. at 1842. On the record before me, McNeil has not presented any evidence rebutting the presumption that prosecution history estoppel bars McNeil from claiming infringement under the doctrine of equivalents. Furthermore, Perrigo has proven the invalidity of the Stevens patents; therefore, I need not reach the issue of infringement under the doctrine of equivalents.
IV. INVALIDITY OF STEVENS PATENTS
Given the strong prima facie case of obviousness and the minimal secondary evidence presented by McNeil, Perrigo has proven by clear and convincing evidence that claims 1 and 2 of the '376 patent and claims 1 through 3 of the '641 patent are invalid for obviousness.[33]
V. ATTORNEYS' FEES
An award of attorneys' fees to the prevailing party is authorized in an "exceptional" case. See 35 U.S.C. § 285. In assessing whether a case qualifies as exceptional, I must consider the totality of *374 the circumstances. See Kaufman Co., Inc. v. Lantech, Inc., 807 F.2d 970, 978-79 (Fed.Cir.1986). As the party seeking attorneys' fees, Perrigo must prove the exceptional nature of the case by clear and convincing evidence. See Eltech Sys. Corp. v. PPG Indus., Inc., 903 F.2d 805, 810-11 (Fed.Cir.1990). Exceptional cases are normally those involving bad faith litigation or misconduct by the patentee in procuring the patent. See Cambridge Prods., Ltd. v. Penn Nutrients, Inc., 962 F.2d 1048, 1050-51 (Fed.Cir.1992). Particularly during the prosecution of the patents in suit, McNeil's conduct was careless, irresponsible, and, at the very least, tantamount to studied and deceptive ignorance. See Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 267 F.3d 1370, 1384 (Fed.Cir. 2001). McNeil's repeated erroneous representations, failure to disclose relevant prior art, and overall persistence in prosecuting exceedingly obvious "inventions" make this case exceptional.
Although McNeil's misconduct during prosecution alone makes this case exceptional, there is further evidence warranting an award of attorneys' fees. It is significant that McNeil is a highly sophisticated party, readily capable of assessing not only the merits of its claimed invention, but also its expected profits as compared to the costs that would be incurred in the event that their patents were held invalid. Put differently, the Garwin and Stevens patents amount to a scheme for extending the life of a drug about to go off patent, and McNeil executed this scheme without the slightest regard for the intent and purposes of the patent laws. Indeed, McNeil's sole motive was to compromise these statutes and constitutional protections for the sake of profits.
CONCLUSION
The patent laws "promote the Progress of Science and useful Arts" by rewarding innovation with a temporary right to exclusivity. U.S. Const., art. I, § 8, cl. 8. See also Festo, 122 S.Ct. at 1837.[34] Long ago, in Hotchkiss v. Greenwood, 52 U.S. 248, 11 How. 248, 267, 13 L. Ed. 683 (1850), the Supreme Court established that the sine qua non of patentability is invention, and as stated in 35 U.S.C. § 100(a), the legal definition of invention is synonymous with discovery. As is widely understood, a discovery is an act of "gaining knowledge of or ascertaining the existence of something previously unknown or unrecognized." Webster's Third New International Dictionary 647 (1993). Over time, patent law has developed its own, new language, and has even come to require special qualifications for lawyers appearing before the PTO. These developments tend to obscure *375 the fundamental notions of invention and discovery.
Acting within this often esoteric area of the law, patent lawyers are called upon to play the roles of chemists, engineers, physicians, and physicistsnow, they are also asked to be magicians. That is, patent lawyers are asked to defendwith smoke and incantations when necessarybusiness-driven decisions having nothing to do with inventing or discovering anything. Consistent with schemes to prolong the legally-protected period of exclusivity, companies hire highly talented attorneys to perform acts of legal legerdemain in order to make modest developments look and feel like inventions, when in reality the purported discovery is nothing more than a creation of an advertising and marketing department. In-house counsel should be cautioned that complicity in patent prosecution for unsanctioned legal purposes may give rise in the future to review of that behavior by the appropriate attorney disciplinary machinery. Advancing a client's economic interests is not a license to forget one's ethical responsibilities.
It is not lost on this Court that by developing ("not inventing") a combination drug, the law automatically permitted McNeil a three-year period of exclusivity, which ran from October 1997 to October 2000. However, by concocting multiple patent applications and litigating their validity, this period of exclusivity has been extended by two years and, with an appeal, will extend even further, effectively doubling the initial period of exclusivity. The business-driven decision that it is worth the investment to "invent an invention" will continue unabated unless a vigorous PTO or a Court sees this transparent attempt to subvert the patent laws for what it is. The patent laws are not the private sandbox of pharmaceutical companies. Regrettably, I am constrained by law to award only counsel fees for Plaintiff's behavior, although I am not unmindful of the fact that while this patent litigation continues, competition in the marketplace is foreclosed and the public is forced to pay higher prices.
While the trial attorneys in this case have proven themselves informed, articulate, and instructive, in the end I was left to dispel the illusions concealing the true nature of the "invention" to reach my own conclusion: as Gertrude Stein phrased it, "there is no there there."
An appropriate Order follows.
ORDER
AND NOW, this day of June, 2002, upon consideration of the parties' Proposed Findings of Fact and Conclusions of Law and Post-Trial Briefs, Plaintiff's Motion to Strike New Affirmative Defenses and Counterclaims, Defendants' Motion for Attorney's Fees, and the record and the applicable law, and for the foregoing reasons, it is hereby ORDERED that:
1. Plaintiff's Motion to Strike New Affirmative Defenses and Counterclaims (Document No. 90) is DENIED as moot.
2. Defendants' Motion for Attorney's Fees (Document No. 101) is GRANTED.
3. It is DECLARED that claims 14 and 16 of United States Patent 5,248,505 are invalid, and judgment is ENTERED in favor of Defendants and against Plaintiff on Plaintiff's claim for infringement of United States Patent 5,248,505.
4. It is DECLARED that claim 15 of United States Patent 5,612,054 is invalid, and judgment is ENTERED in favor of Defendants and against Plaintiff on Plaintiff's claim for infringement *376 of United States Patent 5,612,054.
5. Judgment is ENTERED in favor of Defendants and against Plaintiff on Plaintiff's claim for literal infringement of United States Patent 5,679,376.
6. Judgment is ENTERED in favor of Defendants and against Plaintiff on Plaintiff's claim for literal infringement of United States Patent 5,716,641.
7. It is DECLARED that claims 1 and 2 of United States Patent 5,679,376 are invalid.
8. It is DECLARED that claims 1, 2, and 3 of United States Patent 5,716,641 are invalid.
9. Defendants shall submit a petition for counsel fees by July 10, 2002. Plaintiff shall have until July 29, 2002 to file a response.
NOTES
[1] This action arises under the patent laws of the United States. See 35 U.S.C. § 271(e)(2) and 21 U.S.C. § 355(j). Jurisdiction is based on 28 U.S.C. §§ 1331 and 1338(a). Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(c) and 1400(b).
[2] The '505 patent covers a method for treating gastrointestinal distress; the '054 patent covers the related pharmaceutical composition.
[3] The trial transcript is cited in the following format: (name of witness) TT at (transcript page(s)).
[4] Many exhibits contain multiple page number designations. Where more than one designation is present, the clearest page number designation is cited.
[5] United States Patent 3,714,159 (DX104.)
[6] In each of the four patents in suit, loperamide is among a list of antidiarrheals that may be combined with simethicone. No evidence suggests, however, that McNeil seriously considered any antidiarrheal other than loperamide for its Imodium products.
[7] Claim 14 of the '505 patent incorporates claims 1 and 2 and is set forth accordingly herein to include these limitations.
[8] Claim 15 of the '054 patent incorporates claims 1 and 2 and is set forth accordingly herein to include these limitations.
[9] McNeil argues that in the absence of inequitable conduct, evidence relating to improper patent prosecution is irrelevant. This argument appears to miss the mark. See Applied Materials v. Advanced Semiconductor Materials Am., 98 F.3d 1563, 1570 (Fed.Cir. 1996)("facts relevant to the issue of obviousness were before the district court, including . . . prosecution history in the PTO"). In any event, what happened before the PTO in this case does not affect the statutory presumption that the Garwin patents are valid. The discussion of the prosecution history is primarily intended to highlight fundamental flaws in McNeil's contention that the Garwin patents are nonobvious. Lastly, the history of the Garwin patents' prosecution reveals that certain comments made by Judge Learned Hand seventy-five years ago are no less apt today: "[T]he antlike persistency of [patent] solicitors has overcome and . . . will continue to overcome, the patience of examiners, and there is apparently always but one outcome." Lyon v. Boh, 1 F.2d 48, 50 (S.D.N.Y.1924).
[10] McNeil's trial counsel did not represent McNeil during the prosecution of the Garwin or Stevens patents.
[11] The Longe reference states: "Acute diarrhea is characterized by a sudden onset of frequent, liquid stools accompanied by weakness, flatulence, pain, and often fever and vomiting." (DX12 at 326). In this regard, it is noteworthy that McNeil's attorneys did not point out this statement to the Examiner. Instead, they cited the Longe reference because it "discloses antidiarrheal and other gastroin-testinal products. No suggestion is made for combining antidiarrheal with antiflatulent compositions." (Id. at 26.)
[12] Traveler's diarrhea is one of the most common forms of diarrhea, affecting millions of people annually. (DX84-1 at 953.)
[13] McNeil made other erroneous representations during the prosecution of the Garwin patents. For example, while prosecuting the Garwin patents McNeil misleadingly relied on an article that found that simethicone did not reduce gas in the colon ("Jain article"). (DX12 at 180-81.) The results reported in the Jain article, however, were based on a study involving only nine participants and did not rise to the level statistical significance. Other studies, including a study by Drs. Alfred Rider and Hugo Moeller, found that simethicone treated intestinal gas and bloating in 75.5 percent of the 200 patients studied. (DX103-1.) Although McNeil later provided the PTO with numerous articles tending to show the effectiveness of simethicone, these articles were not submitted until after the '505 patent had issued. (DX13 at 123-70.)
[14] At the time of the claimed invention, bismuth subsalicyclate was sold as Pepto-Bismol ®, and attapulgite was an ingredient in the tablet form of Kaopectate®. (DX12 at 338-39.)
[15] McNeil did not present the 1980 edition of the MIMS Reference during the prosecution of either the '505 patent or '054 patent. (PTX5, 6.)
[16] McNeil attempts to draw a distinction between the Garwin patents and the prior art references based on the fact that the prior art involves absorbent and adsorbent antidiarrheal, instead of an opiate-type antidiarrheal, like loperamide. On the one hand, absorbent and adsorbent materials take up and remove some of the toxins and bacteria present in the intestinal tract. Absorbent materials also solidify the intestinal contents by absorbing excess water. Loperamide, on the other hand, acts locally in the intestine to: (1) regulate muscular contractions of the intestinal tract; (2) limit the excess amount of secretions made by the intestinal tract as a reaction to toxins in a diarrheal state; (3) increase absorption of water across the intestinal muscosa so that the water can be reabsorbed into the body; and (4) increase anal sphincter pressure, thus treating the patient's fecal incontinence. (Garwin TT at 108-122.) Attapulgite had been found to be comparable in efficacy to loperamide. (DX157 at 37.) McNeil's argument, however, sets up a distinction without a meaningful difference. Significantly, Dr. William Snape, one of McNeil's expert witnesses, offered no explanation regarding why a difference in the mode of operation of an opiate-type antidiarrheal as compared to an absorbent/adsorbentype antidiarrheal would deter one of ordinary skill in the art from combining loperamide with simethicone. (Snape TT at 1218-20.)
[17] Priority of invention "goes to the first party to reduce an invention to practice unless the other party can show that it was the first to conceive the invention and that it exercised reasonable diligence in later reducing that invention to practice." Price v. Symsek, 988 F.2d 1187, 1190 (Fed.Cir.1993). While Dr. Garwin's notebook includes a memorandum of September 23, 1988 documenting his conception of combining loperamide and simethicone in a single composition to treat diarrhea and gas, at trial McNeil failed to produce any evidence of diligence in reducing the alleged invention to practice. However, because McNeil has not established when the claimed invention was actually reduced to practice, the filing date of the first Garwin patent application serves as the date of constructive reduction to practice. See Hyatt v. Boone, 146 F.3d 1348, 1352 (Fed.Cir.1998). In light of this date of invention, the Chavkin patent is prior art.
[18] McNeil argues that the fact that no one had written about combining loperamide with simethicone suggests the absence of a motivation to combine the two. This argument assumes that others were not disinclined to write about such a combination because of the sheer obviousness of that combination. McNeil also contends that the fact that certain antidiarrheals, particularly bismuth subsalicyclate, had not been combined with simethicone suggests the nonobviousness of the Garwin patents. There is a plausible medical explanation, however, for why bismuth subsalicyclate was not combined with simethicone; there is evidence that bismuth subsalicyclate itself was understood to act as an antiflatulent. (Snape TT at 1207-08.) Furthermore, McNeil advances the argument that the lack of evidence regarding whether simethicone reduced intestinal gas would deter one of ordinary skill in the art from considering the loperamide-simethicone combination; this argument is unconvincing for two reasons. First, this argument ignores the fact that three other antidiarrheals had previously been combined with simethicone for the treatment diarrhea and flatulence. Second, this contention is inconsistent with McNeil's statement to the PTO that it did "not disagree that simethicone is a known composition for the treatment of flatulence. . . ." (DX12 at 40.)
[19] In view of the fact that the basic loperamide patent was nearing expiration, to a McNeil researcher, the motivation to combine loperamide with simethicone would have been overwhelming.
[20] McNeil's projections indicate that the total sales of all Imodium Advanced products will approach $200 million by the end of 2002. (PTX57, 455 at MC100885).
[21] In 2001, McNeil began selling an Imodium Advanced caplet. (Wang Goodrich TT at 229.) The total amount of sales of all of McNeil's Imodium productsincluding sales of the capletincreased in 2001. (PTX57.) It is noteworthy that this sales increase corresponds with an increase in advertising expenditures. (PTX464.)
[22] After its claims had been twice rejected for obviousness, as predicted by Judge Learned Hand, McNeil returned to the PTO to argue that unexpected results proved that the Garwin patents were nonobviousness.
[23] To the extent that a generic drug manufacturer's attempt to create the bioequivalent of a pioneer manufacturer's drug, without more, may be considered copying, I note that a showing of copying is only equivocal evidence of nonobviousness. See Ecolochem, Inc. v. S. Cal. Edison Co., 227 F.3d 1361, 1380 (Fed.Cir.2000)(citing In re GPAC, 57 F.3d 1573, 1580 (Fed.Cir.1995)).
[24] The polymeric materials Perrigo uses in its tablet are disclosed in the Stevens patents only as excipients, with no statement that they could function as impermeable barrier materials or as impermeable polymer coatings. (PTX3, 4.)
[25] Perrigo has taken the position that certain materials used in its ANDA drug are not polymeric, and, on this basis, the Stevens patents are not infringed. At trial, both parties presented evidence related to whether certain materials should be considered "polymeric." At bottom, this dispute raises the question primarily of interest to a semanticistof whether "monomeric" and "polymeric" are mutually exclusive terms. In light of my construction of "polymeric" as "a material that is a polymer or contains polymers," Perrigo's product does contain polymeric materials.
[26] Perrigo's evidence that its tablet absorbs simethicone is supported by a statement made by McNeil. In an report not prepared for the purposes of this litigation, McNeil's expert described dextrates, one of the principal ingredients in Perrigo's ANDA product, as "provid[ing] absorptive capacity for simethicone oil. ...." (DX31 at MC6681.)
[27] The figures included in the Stevens patents are identical to those in the earlier Rider patent.
[28] French Patent Publication 2,565,107, discussed above in connection with the Garwin patents, teaches an additional configuration, namely an onion-like layering system, for separating simethicone from an antidiarrheal attapulgite. (DX132.)
[29] Significantly, Perrigo's ANDA product also employs the mechanism of adsorbtion to prevent simethicone migration.
[30] McNeil takes the position that the motivation to combine is absent because the prior art failed to indicate that simethicone effected the dissolution of the loperamide. However, one of McNeil's experts, Dr. Schwartz, admitted at trial that the Rider patent and Stevens patents are directed at solving the same problem:
Q: What do the Stevens' patents have to say about [the simethicone migration problem]?
A: Well, their invention prevents the simethicone from migrating into the pharmaceutical.
Q: [Y]ou would accept agree with me that Ryder [sic] discloses an invention for preventing simethicone from migrating into the pharmaceutical?
A: I'll accept that.
Put differently, Dr. Schwartz considered the Stevens patents and Rider patent as disclosing the same "invention," namely the prevention of simethicone migration into the pharmaceutical.
[31] In its Answer and Counterclaims, Perrigo pled defenses under 35 U.S.C. §§ 102 and 112. However, Perrigo failed to raise this defense in its claim-by-claim defenses or at trial. At trial, Perrigo's only defense to its admitted infringement of the Garwin patents was that the asserted claims are invalid for obviousness under 35 U.S.C. § 103.
[32] McNeil's marketing expenditures appear to be consistent with an overall strategy for stymieing generic competition. By heavily promoting the combination product, McNeil can in effect transfer sales from the nonpatent-protected loperamide product to its combination drug. Regardless of whether the combination drug ultimately gains patent protection, this combination drug enjoys a significant period of exclusivity pursuant to the Hatch-Waxman Act. Moreover, because loperamide is sold in generic form, McNeil benefits from the transference of sales from the loperamide-alone product to its combination drug.
[33] Because I have found that the Stevens patents are not infringed, I need not reach Perrigo's alternative arguments that the Stevens claim lack definiteness and fail to distinctly claim the invention. (Def. Post-Trial Br. at 75.) Furthermore, having found that the Stevens patents are invalid for obviousness, I need not reach the host of other arguments Perrigo advances in support of its position that the Stevens patents are invalid. See Enzo Biochem, Inc. v. Calgene, Inc., 188 F.3d 1362, 1369(Fed.Cir.1999).
[34] As early as 1813 Thomas Jefferson, the first administrator of the United States Patent Office, memorialized in writing his critical view of the excessive issuance of patents. "Instead of refusing a patent in the first instance, as the board was authorized to do, the patent now issues of course, subject to be declared void on such principles as should be established by the courts of law." 13 The Writings of Thomas Jefferson 336 (A. Bergh ed.1907). Jefferson explained the reasons for these objections with eloquence that continues to resonate:
[The idea's] peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space. . . .
Id. at 333-34. | 01-03-2023 | 10-30-2013 |
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