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https://www.courtlistener.com/api/rest/v3/opinions/97975/	231 U.S. 9 (1913) LURIA v. UNITED STATES. No. 27. Supreme Court of United States. Argued April 23, 1913. Decided October 20, 1913. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. 11 Mr. Louis Marshall, with whom Mr. A.M. Friedenberg was on the brief, for appellant. Mr. Assistant Attorney General Harr for the United States. 17 MR. JUSTICE VAN DEVANTER delivered the opinion of the court. This appeal brings under review a decree setting aside and canceling, under § 15 of the act of June 29, 1906, 34 Stat. 596, 601, c. 3592, as fraudulently and illegally procured, a certificate of citizenship theretofore issued to George A. Luria by the court of common pleas of the city and county of New York. 184 Fed. Rep. 643. The petition was not carefully prepared, and yet it doubtless was designed to charge that the certificate was fraudulently and illegally procured in that Luria did not at the time intend to become a permanent citizen of the United States but only to obtain the indicia of such citizenship in order that he might enjoy its advantages and protection and yet take up and maintain a permanent residence in a foreign country. There was a prayer that the certificate be set aside and canceled because "procured illegally." The sufficiency of the petition was not challenged, and the case was heard and determined as if the issue just described were adequately tendered. In the opinion rendered by the District Court it was said, after observing that the petition was subject to criticism: "That point, however, was not raised, and I suppose the defendant does not mean to raise it." This view of his attitude passed unquestioned then, and it is too late to question it now. The case was heard upon an agreed statement and some accompanying papers, from all of which it indubitably appeared that Luria was born in Wilna, Russia, in 1865 or 1868 and came to New York in 1888; that he entered a medical college of that city the next year and was graduated therefrom in 1893; that he applied for and procured 18 the certificate of citizenship in July, 1894; that in the following month he sought and obtained a passport from the Department of State, and in November left the United States for the Transvaal, South Africa, arriving there in December; that from that time to the date of the hearing, in December, 1910, he resided and practiced his profession in South Africa; that he joined the South African Medical Association and served in the Boer war; that his only return to the United States was for four or five months in 1907, for the temporary purpose of taking a postgraduate course in a medical school in New York; and that when entering that school he gave as his address, Johannesburg, South Africa. From the facts so appearing the District Court found and held that within a few months after securing the certificate of citizenship Luria went to and took up a permanent residence in South Africa, and that this, under § 15 of the act of 1906, constituted prima facie evidence of a lack of intention on his part to become a permanent citizen of the United States at the time he applied for the certificate. In the papers accompanying the agreed statement there were some declarations which, if separately considered, would tend to engender the belief that he had not taken up a permanent residence in South Africa and was only a temporary sojourner therein, but the District Court, upon weighing and considering those declarations in connection with all the facts disclosed, as was necessary, concluded that the declarations could not be taken at their face value and that the residence in South Africa was intended to be, and was, permanent in character. We concur in that conclusion. In his answer, Luria interposed the defense that his presence in the Transvaal was solely for the purpose of promoting his health, the implication being that when he went there his health was impaired in such a way that a residence in that country was necessary or advisable 19 and therefore that taking up such residence ought not to be accepted as indicating that when he was naturalized it was not his intention to become a permanent citizen of the United States. He does not appear to have been present at the hearing, and, although there was ample time (ten months after filing his answer) to take his deposition, it was not taken, and there was substantially no attempt to sustain this defense or to explain his permanent removal to the Transvaal so soon after he procured the certificate of citizenship. True, it appeared that in 1909 he filed at the United States Consulate in Johannesburg, in support of an application for registration as a citizen of the United States, two certificates from medical practitioners, stating, in effect, that his residence in the Transvaal was for purposes of health; but those certificates did not rise to the dignity of proof in the present case. Besides being ex parte, they were meagre, not under oath, and not accepted by the consular officers as adequate or satisfactory. Thus, we think the District Court rightly held that there was no countervailing evidence sufficient to overcome the evidential effect of taking up a permanent residence in the Transvaal so shortly following the naturalization. Section 15 of the act of 1906, under which this suit was conducted, is as follows (34 Stat. 601): "SEC. 15. That it shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured. In any such proceedings the party holding the certificate of citizenship alleged to have been fraudulently or illegally procured shall have 20 sixty days personal notice in which to make answer to the petition of the United States; and if the holder of such certificate be absent from the United States or from the district in which he last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought. "If any alien who shall have secured a certificate of citizenship under the provisions of this Act shall, within five years after the issuance of such certificate, return to the country of his nativity, or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the cancellation of his certificate of citizenship as fraudulent, and the diplomatic and consular officers of the United States in foreign countries shall from time to time, through the Department of State, furnish the Department of Justice with the names of those within their respective jurisdictions who have such certificates of citizenship and who have taken permanent residence in the country of their nativity, or in any other foreign country, and such statements, duly certified, shall be admissible in evidence in all courts in proceedings to cancel certificates of citizenship. "Whenever any certificate of citizenship shall be set aside or canceled, as herein provided, the court in which such judgment or decree is rendered shall make an order canceling such certificate of citizenship and shall send a certified copy of such order to the Bureau of Immigration and Naturalization; and in case such certificate was not originally issued by the court making such order it shall direct the clerk of the court to transmit a copy of such order and judgment to the court out of which such certificate 21 of citizenship shall have been originally issued. And it shall thereupon be the duty of the clerk of the court receiving such certified copy of the order and judgment of the court to enter the same of record and to cancel such original certificate of citizenship upon the records and to notify the Bureau of Immigration and Naturalization of such cancellation. "The provisions of this section shall apply not only to certificates of citizenship issued under the provisions of this act, but to all certificates of citizenship which may have been issued heretofore by any court exercising jurisdiction in naturalization proceedings under prior laws." One of the questions arising under this section is, whether the second paragraph, dealing with the evidential effect of taking up a permanent residence in a foreign country within five years after securing a certificate of citizenship, is confined to certificates issued under the act of 1906, or applies also to those issued under prior laws, as was Luria's. If that paragraph were alone examined, the answer undoubtedly would be that only certificates under the act of 1906 are included. But the last paragraph also must be considered. It expressly declares that "the provisions of this section" shall apply, not only to certificates issued under the act of 1906, but also to all certificates theretofore issued under prior laws. The words "the provisions of this section" naturally mean every part of it, one paragraph as much as another, and that meaning cannot well be rejected without leaving it uncertain as to what those words embrace. Counsel refer to the Congressional Record, which shows that the second paragraph was inserted by way of amendment while the section was being considered in the House of Representatives. But as the section was in its present form when it was finally adopted by that body, as also when it was adopted by the Senate and approved by the President, it would seem that the last paragraph, in view of its plain and unambiguous 22 language, must be accepted as extending the preceding paragraphs to all certificates, whether issued theretofore under prior laws or thereafter under that act. But it is said that it was not essential to naturalization under prior laws, Rev. Stat., §§ 2165-2170, that the applicant should intend thereafter to reside in the United States; that, if he otherwise met the statutory requirements, it was no objection that he intended presently to take up a permanent residence in a foreign country; that the act of 1906, differing from prior laws, requires the applicant to declare "that it is his intention to reside permanently within the United States"; and therefore that Congress, when enacting the second paragraph of § 15, must have intended that it should apply to certificates issued under that act and not to those issued under prior laws. It is true that § 4 of the act of 1906 exacts from the applicant a declaration of his intention to reside in the United States, and it is also true that the prior laws did not expressly call for such a declaration. But we think it is not true that under the prior laws it was immaterial whether the applicant intended to reside in this country or presently to take up a permanent residence in a foreign country. On the contrary, by necessary implication, as we think, the prior laws conferred the right to naturalization upon such aliens only as contemplated the continuance of a residence already established in the United States. Citizenship is membership in a political society and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other. Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency. Minor v. Happersett, 21 Wall. 162, 165; Elk v. Wilkins, 112 U.S. 94, 101; Osborn v. Bank, 9 Wheat. 738, 827. Turning to the naturalization laws preceding the act of 1906, being 23 those under which Luria obtained his certificate, we find that they required, first, that the alien, after coming to this country, should declare on oath, before a court or its clerk, that it was bona fide his intention to become a citizen of the United States and to renounce forever all allegiance and fidelity to any foreign sovereignty; second, that at least two years should elapse between the making of that declaration and his application for admission to citizenship; third, that as a condition to his admission the court should be satisfied, through the testimony of citizens, that he had resided within the United States five years at least, and that during that time he had behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same; and, fourth, that at the time of his admission he should declare on oath that he would support the Constitution of the United States and that he absolutely and entirely renounced and abjured all allegiance and fidelity to every foreign sovereignty. These requirements plainly contemplated that the applicant, if admitted, should be a citizen in fact as well as in name that he should assume and bear the obligations and duties of that status as well as enjoy its rights and privileges. In other words, it was contemplated that his admission should be mutually beneficial to the Government and himself, the proof in respect of his established residence, moral character, and attachment to the principles of the Constitution being exacted because of what they promised for the future, rather than for what they told of the past. By the clearest implication those laws show that it was not intended that naturalization could be secured thereunder by an alien whose purpose was to escape the duties of his native allegiance without taking upon himself those of citizenship here, or by one whose purpose was to reside permanently in a foreign country and to use his naturalization 24 as a shield against the imposition of duties there, while by his absence he was avoiding his duties here. Naturalization secured with such a purpose was wanting in one of its most essential elements good faith on the part of the applicant. It involved a wrongful use of a beneficent law. True, it was not expressly forbidden; neither was it authorized. But, being contrary to the plain implication of the statute, it was unlawful, for what is clearly implied is as much a part of a law as what is expressed. United States v. Babbit, 1 Black, 55, 61; McHenry v. Alford, 168 U.S. 651, 672; South Carolina v. United States, 199 U.S. 437, 451. Perceiving nothing in the prior laws which shows that Congress could not have intended that the last paragraph of § 15 of the act of 1906 should be taken according to the natural meaning and import of its words, we think, as before indicated, that it must be regarded as extending the preceding paragraphs of that section to all certificates of naturalization, whether secured theretofore under prior laws or thereafter under that act. Several contentions questioning the constitutional validity of § 15 are advanced, but all, save the one next to be mentioned, are sufficiently answered by observing that the section makes no discrimination between the rights of naturalized and native citizens, and does not in anywise affect or disturb rights acquired through lawful naturalization, but only provides for the orderly cancellation, after full notice and hearing, of certificates of naturalization which have been procured fraudulently or illegally. It does not make any act fraudulent or illegal that was honest and legal when done, imposes no penalties, and at most provides for the annulment, by appropriate judicial proceedings, of merely colorable letters of citizenship, to which their possessors never were lawfully entitled. Johannessen v. United States, 225 U.S. 227. See also Wallace v. Adams, 204 U.S. 415. 25 Objection is specially directed to the provision which declares that taking up a permanent residence in a foreign country within five years after the issuance of the certificate shall be considered prima facie evidence of a lack of intention to become a permanent citizen of the United States at the time of the application for citizenship, and that in the absence of countervailing evidence the same shall be sufficient to warrant the cancellation of the certificate as fraudulent. It will be observed that this provision prescribes a rule of evidence, not of substantive right. It goes no farther than to establish a rebuttable presumption which the possessor of the certificate is free to overcome. If, in truth, it was his intention at the time of his application to reside permanently in the United States, and his subsequent residence in a foreign country was prompted by considerations which were consistent with that intention, he is at liberty to show it. Not only so, but these are matters of which he possesses full, if not special, knowledge. The controlling rule respecting the power of the legislature in establishing such presumptions is comprehensively stated in Mobile &c. Railroad Co. v. Turnipseed, 219 U.S. 35, 42, 43, as follows: "Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue, is but to enact a rule of evidence, and quite within the general power of government. Statutes, national and state, dealing with such methods of proof in both civil and criminal cases abound, and the decisions upholding them are numerous. . . . "That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary 26 mandate. So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed. "If a legislative provision not unreasonable in itself prescribing a rule of evidence, in either criminal or civil cases, does not shut out from the party affected a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue, there is no ground for holding that due process of law has been denied him." Of like import are Fong Yue Ting v. United States, 149 U.S. 698, 729; Adams v. New York, 192 U.S. 585, 599; Bailey v. Alabama, 219 U.S. 219, 238; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 81; Reitler v. Harris, 223 U.S. 437, 441. Nor is it a valid objection to such legislation that it is made applicable to existing causes of action, as is the case here, the true rule in that regard being well stated in Cooley's Constitutional Limitations, 7th ed. 524, in these words: "It must also be evident that a right to have one's controversies determined by existing rules of evidence is not a vested right. These rules pertain to the remedies which the State provides for its citizens; and generally in legal contemplation they neither enter into and constitute a part of any contract, nor can be regarded as being of the essence of any right which a party may seek to enforce. Like other rules affecting the remedy, they must therefore at all times be subject to modification and control by the legislature; and the changes which are enacted may lawfully be made applicable to existing causes of action, even in those States in which retrospective laws are forbidden. For the law as changed would only prescribe rules for presenting the evidence in legal controversies in the future; and it could not therefore be called retrospective 27 even though some of the controversies upon which it may act were in progress before." This court applied that rule in Webb v. Den, 17 How. 576, 578; Hopt v. Utah, 110 U.S. 574, 590; Thompson v. Missouri, 171 U.S. 380; and Reitler v. Harris, supra. That the taking up of a permanent residence in a foreign country shortly following naturalization has a bearing upon the purpose with which the latter was sought and affords some reason for presuming that there was an absence of intention at the time to reside permanently in the United States is not debatable. No doubt, the reason for the presumption lessens as the period of time between the two events is lengthened. But it is difficult to say at what point the reason so far disappears as to afford no reasonable basis for the presumption. Congress has indicated its opinion that the intervening period may be as much as five years without rendering the presumption baseless. That period seems long, and yet we are not prepared to pronounce it certainly excessive or unreasonable. But we are of opinion that as the intervening time approaches five years the presumption necessarily must weaken to such a degree as to require but slight counter, vailing evidence to overcome it. On the other hand, when the intervening time is so short as it is shown to have been in the present case, the presumption cannot be regarded as yielding to anything short of a substantial and convincing explanation. So construed, we think the provision is not in excess of the power of Congress. Lastly it is urged that the District Court erred in not according to the defendant a trial by jury. The claim is predicated upon the Seventh Amendment to the Constitution, which declares that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." This, however, was not a suit at common law. The right asserted and the remedy sought were essentially equitable, *28 not legal, and this, according to the prescribed tests, made it a suit in equity. Parsons v. Bedford, 3 Pet. 433, 447; Irvine v. Marshall, 20 How. 558, 565; Root v. Railway Company, 105 U.S. 189, 207. In this respect it does not differ from a suit to cancel a patent for public land or letters patent for an invention. See United States v. Stone, 2 Wall. 525; United States v. San Jacinto Tin Co., 125 U.S. 273; United States v. Bell Telephone Co., 128 U.S. 315. Finding no error in the record, the decree is Affirmed.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/2306335/	980 A.2d 604 (2009) COM. v. BROWN. No. 177 EAL (2009). Supreme Court of Pennsylvania. September 10, 2009. Disposition of petition for allowance of appeal Denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/97988/	231 U.S. 162 (1913) STRAUS v. FOXWORTH. No. 191. Supreme Court of United States. Submitted October 20, 1913. Decided November 17, 1913. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO. 163 Mr. William C. Reid and Mr. James M. Hervey for appellant. Mr. Harry H. McElroy and Mr. Harry M. Dougherty for appellee. 167 MR. JUSTICE VAN DEVANTER delivered the opinion of the court. This was a suit to quiet the title to three tracts of land in Quay County, in the Territory of New Mexico. In the court of first instance a demurrer to the complaint was sustained and, the plaintiff declining to amend, a decree of dismissal was entered, which subsequently was affirmed by the Supreme Court of the Territory. 16 N. Mex. 442. An appeal from the decree of affirmance brings the case here, under the act of March 3, 1885, 23 Stat. 443, c. 355. The complaint purported to state four causes of action. In the first, embracing all the tracts, it was alleged that the plaintiff was the owner in fee simple and that the defendant was making some adverse claim, not described. In the others, each embracing a single tract, the plaintiff's ownership was reiterated and it was alleged that the defendant was claiming title under tax deeds issued in consummation of tax sales which were characterized as void for designated reasons. But notwithstanding its form, the complaint, as the record discloses, was treated in both of the territorial courts, with the acquiescence of the parties, as intended to challenge the validity of the tax deeds only upon the grounds designated in the last 168 three causes of action; that is, as if the general charge in the first cause of action was intended to be restrained and limited by the more specific charges in the others. We therefore treat the complaint in the same way. It was not alleged that the lands were not subject to taxation, or that the taxes on account of which the sales were had were in any wise invalid, or that the taxes or any part of them had been paid or tendered, or that they had not been delinquent for such a period as justified their enforcement by a sale of the lands, or that the sales were in any wise tainted with fraud, or that there had been any attempt to redeem the lands, or any of them, within the three years allowed therefor, or that that period had not elapsed after the sales and before the deeds were issued. On the contrary, the sole grounds on which the complaint assailed the tax title were (a) that the sales were "not sufficiently advertised," (b) that proof of publication of the notice of sale was not transmitted by the printer to the county collector "immediately after the last publication," (c) that the collector did not cause to be made an affidavit of the public posting of the notice of sale and did not cause proof of publication or of posting to be deposited with the probate clerk, (d) that the probate clerk did not "carefully preserve" any such proofs, and (e) that the amount of the delinquency sought to be satisfied by the sales was in one instance 16 cents, and in another 24 cents, more than the taxes levied on the particular tract. Plainly, the allegation that the sales were "not sufficiently advertised" was purely a conclusion of law, and must be disregarded. No facts being set forth to sustain it, the statement of the conclusion was merely an empty assertion, and, under the rule that a demurrer admits only facts well pleaded, the conclusion was not admitted. The charge that the delinquency sought to be satisfied by the sales was in excess of the taxes levied must be read in connection with the fact, otherwise appearing in 169 the complaint, that the taxes were delinquent, and in connection with the statutory provisions augmenting the delinquency by designated penalties and costs. When this is done it is quite evident that the amount sought to be collected was not excessive. The remaining objections advanced in the complaint are founded upon a failure to comply with local statutory provisions directing the making and preserving of proofs of the publication and posting of the notice of sale. The Supreme Court of the Territory held, in effect, that compliance with these statutory provisions was not essential in a constitutional sense to the validity of tax sales and therefore that the territorial legislature was free to declare that non-compliance should not render the sales invalid; and with this as a premise the court further held that the objections could not prevail, because the statute under which the sales were had contained a provision that "no bill of review or other action attacking the title to any property sold at tax sale in accordance with this act shall be entertained by any court, nor shall such sale or title be invalidated by any proceedings, except upon the ground that the taxes, penalties, interest and costs had been paid before the sale, or that the property was not subject to taxation." Laws New Mexico, 1899, c. 22, § 25. The appellant assigns error upon this ruling and insists that the provision just quoted (a) is in terms restricted to sales made "in accordance with this act" and so cannot be applied to any sale wherein some requirements of the act were not followed, and (b) is repugnant to the due process of law clause of the Fourteenth Amendment as applied to the Territory by the organic act. The Supreme Court of the Territory construed the words "in accordance with this act" as meaning "under this act," and we think this was right. At least, we cannot say that it was manifestly wrong, as must be done 170 to justify us in rejecting the local interpretation of a territorial statute. Fox v. Haarstick, 156 U.S. 674, 679; Treat v. Grand Canyon Railway Co., 222 U.S. 448, 452. Of course, the provision was intended to have some operation and effect, and it hardly could have any if restricted to sales made in accordance with the act, in the stricter sense, for such sales would be as valid without the provision as with it. While statutes authorizing tax sales often provide for making and preserving some designated form of record evidence of compliance with the requirements respecting notice of the sale, the subject is one which rests in legislative discretion, being quite apart from those fundamental rights which are embraced in a right conception of due process of law. And if there be legislative provision upon the subject, it does not assume the dignity of an essential element of due process of law in the constitutional sense (Castillo v. McConnico, 168 U.S. 674, 683), but belongs to that class of regulations of which it is said in Williams v. Supervisors of Albany, 122 U.S. 154, 164: "Where directions upon the subject might originally have been dispensed with, or executed at another time, irregularities arising from neglect to follow them may be remedied by the legislature, unless its action in this respect is restrained by constitutional provisions prohibiting retrospective legislation." We are not here concerned with retrospective legislation or with any prohibition of it, for, as before shown, the remedial or relieving provision was embodied in the act under which the sales were had. It is contended, however, that the remedial or relieving provision is so broad in its terms as to give effect to a sale not founded upon a prior assessment or where no opportunity was afforded for a hearing in opposition to the tax, and therefore that it is violative of due process. To this it is a sufficient answer to repeat what was said in Castillo v. McConnico (p. 680), in disposing of a like contention: 171 "But, as thus stated, the proposition presents a purely moot question. The plaintiff in error has no interest to assert that the statute is unconstitutional because it might be construed so as to cause it to violate the Constitution. His right is limited solely to the inquiry whether in the case which he presents the effect of applying the statute is to deprive him of his property without due process of law." As none of the objections advanced in the complaint against the defendant's tax title appears to have been well taken, we think the demurrer was rightly sustained. Decree affirmed.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/316121/	489 F.2d 1036 Roman Columbus BROWN, Appellant.v.UNITED STATES of America, Appellee. No. 73-1785. United States Court of Appeals, Eighth Circuit. Submitted Dec. 14, 1973.Decided Jan. 15, 1974. Roman Columbus Brown, pro se. Donald J. Stohr, U.S. Atty., and Richard E. Coughlin, Asst. U.S. Atty., St. Louis, Mo., filed brief for appellee. Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District judge.* PER CURIAM. 1 Appellant Brown appeals from a decision by the United States District Court for the Eastern District of Missouri denying his petition for a correction of his federal sentence. 2 On May 5, 1972, appellant was arrested by the St. Louis, Missouri, police on a charge of armed robbery. On May 8, 1972, a federal detainer was lodged against appellant for parole violation. On June 15, 1972, the state charge was dismissed and appellant was subsequently returned to federal custody. During the period from May 5 to June 15, appellant was in continuous state custody, unable to secure his release on bail. Appellant seeks to have the time spent in state custody credited against his federal sentence on the theory that the federal detainer was the cause of his inability to make bail. 3 Title 18, United States Code, 3568, provides in part: 4 The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. 5 Focusing on the 'in connection with' language of this section, the Court of Appeals for the Fifth Circuit, in Davis v. Attorney General (5th Cir., 1970), 425 F.2d 238, 240, held that a prisoner denied release on bail by state authorities because of an outstanding federal detainer lodged against him is in custody in connection with a federal offense and entitled to credit against his federal sentence for the time spent in state custody. This court has recognized the authority of Davis. See Shields v. Dagget (8th Cir., 1972), 460 F.2d 1060, 1061.1 6 The court is of the opinion that appellant's case is within the rule set forth in Davis. Appellant is entitled to relief. 7 Accordingly, the decision below is reversed, and the case is remanded for entry of an order granting appellant the credit to which he is entitled2 against his federal sentence. 8 Judgment reversed and remanded with directions. * W. C. Stuart, District Judge, Southern District of Iowa, sitting by designation 1 Since appellant received no credit for the time spent in state custody against any state sentence, there is here no problem of double credit for the time spent in state custody. This case is thus distinguishable from the facts in Shields and in Doss v. United States (8th Cir., 1971), 449 F.2d 1274 2 Although appellant only seeks to have his federal sentence shortened by five days, it appears from the record that he is entitled to credit for the entire period from May 8, the day the detainer was lodged against him, to June 15, the day he was released from state custody	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/869717/	STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS State of West Virginia, FILED Plaintiff Below, Respondent May 24, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS vs) No. 12-0659 (Berkeley County 11-F-242) OF WEST VIRGINIA Brian Shamburg, Defendant Below, Petitioner MEMORANDUM DECISION Petitioner’s appeal, by counsel Nicholas Colvin, arises from the Circuit Court of Berkeley County, wherein he was sentenced to a term of incarceration of forty years for his conviction of first degree robbery, a term of incarceration of one to five years for his conviction of conspiracy to commit robbery, and a term of incarceration of two to ten years for his conviction of malicious assault, said sentences to run consecutively. That order was entered on May 7, 2012. The State, by counsel Cheryl K. Saville, has filed its response. This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure. In October of 2011, a Berkeley County Grand Jury indicted petitioner on one count of burglary, one count of first degree robbery, one count of assault during the commission of a felony, one count of conspiracy to commit robbery, and one count of malicious assault. The indictment stemmed from a home invasion perpetrated by petitioner and several accomplices wherein they attacked the home owner, hitting and kicking him in the face and repeatedly employing the use of an electrical shock device. The victim suffered multiple injuries, including a broken cheek bone and broken teeth. Following discovery, petitioner entered into a plea agreement whereby he entered guilty pleas to three counts of the indictment charging first degree robbery, conspiracy to commit robbery, and malicious assault. Pursuant to the plea agreement, the remaining charges were dismissed. After obtaining a presentence investigation report, the circuit court sentenced petitioner to a term of incarceration of forty years for first degree robbery, a term of incarceration of one to five years for conspiracy to commit robbery, and a term of incarceration of two to ten years for malicious assault, said sentences to run consecutively. Petitioner was also ordered to pay restitution and costs. On appeal, petitioner alleges that the circuit court’s sentence was excessive and contrary to the interests of justice. In support, petitioner argues that he has been punished almost as severely as someone convicted of first degree murder, and further argues that without his assistance, 1 neither of his co-defendants would have changed their pleas. Petitioner argues that he should have received a lesser sentence than his co-defendants because of his cooperation. In short, petitioner seeks concurrent sentences. He further argues that this Court is entitled to review the sentence imposed for first degree robbery because the statute under which he was convicted has no express upper limit. Further, petitioner argues that the circuit court considered an impermissible factor at sentencing when it considered a statement by the lead investigator, Trooper Maynard. According to petitioner, Trooper Maynard does not qualify as a victim for purposes of West Virginia Code § 61-11A-2(a). “‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011). We have previously held that “‘[s]entences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review.’ Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 6, State v. Slater, 222 W.Va. 499, 665 S.E.2d 674 (2008). A review of the record shows that the circuit court sentenced petitioner within the applicable statutory guidelines for all the crimes of which petitioner was convicted. Additionally, the sentence for first degree robbery in West Virginia, pursuant to West Virginia Code § 61-2-12 is no less than ten years. In the present case, the victim stated that he was beaten so severely that he required extensive medical procedures. This Court has previously upheld a sentence of sixty years for armed robbery in State v. Spence, 182 W.Va. 472, 388 S.E.2d 498 (1989), where there was no physical injury of the victim. Therefore, under the facts of this case, petitioner’s sentence is not found to be excessive, and we find no error in the circuit court’s order. Further, the Court finds no merit in petitioner’s argument that the circuit court relied upon an impermissible factor in reaching its sentence because of its reference to Trooper Maynard’s comment about his hope that petitioner receive a “significant amount of incarceration and consecutive sentences . . . .” Petitioner relies upon West Virginia Code § 61-11A-2 to argue that the circuit court was not permitted to consider this statement, but that code section relates only to victims providing testimony prior to sentencing and in no way prohibits circuit courts from considering such a statement by law enforcement. For the foregoing reasons, the circuit court’s sentencing order is hereby affirmed. Affirmed. ISSUED: May 24, 2013 CONCURRED IN BY: Chief Justice Brent D. Benjamin Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II 2	01-03-2023	05-24-2013
https://www.courtlistener.com/api/rest/v3/opinions/1920248/	447 N.W.2d 38 (1989) 233 Neb. 608 SCOULAR GRAIN COMPANY, a Nebraska Corporation, Appellee v. PIONEER VALLEY SAVINGS BANK, an Iowa Corporation, Appellant and James L. Wagner, Sheriff, Appellee. No. 89-100. Supreme Court of Nebraska. October 20, 1989. 39 Mohummed Sadden, South Sioux City, for appellant. Frederick S. Cassman, of Abrahams, Kaslow & Cassman, Omaha, for appellee Scoular Grain Co. HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ. PER CURIAM. Defendant-appellant, Pioneer Valley Savings Bank, challenges the district court's issuance of an injunction as sought by the plaintiff-appellee, Scoular Grain Company, in this declaratory judgment action. The injunction prevents Pioneer from proceeding with an execution sale of certain real estate in which both Pioneer and Scoular claim interests. Pioneer's operative assignments of error merge to claim that the district court's judgment is legally erroneous. We affirm. The record reveals the relevant stipulated facts to be that on August 31, 1987, Eugene M. O'Neill and Scoular entered into a written agreement under the terms of which O'Neill undertook to sell and Scoular undertook to purchase certain real and personal property located in South Sioux City, Dakota County, Nebraska, for a total of $900,000. The agreement recites that the sale was for the purpose of enabling O'Neill to "make appropriate provisions for satisfaction or treatment of all valid interests of the Internal Revenue Service...." The agreement was never recorded, but on January 8, 1988, a memorandum calling attention to its existence and identifying the properties involved was filed with the Dakota County register of deeds. The record further reveals that Scoular had occupied at least part of the real estate and possessed at least some of the personal property under the terms of certain leases it had made with O'Neill in 1979 and 1984, the first of which was recorded with the Dakota County register of deeds, but the second of which was not recorded. In mid-1984, O'Neill assigned the percentage rents due him under said leases to Pioneer, as security for his then indebtedness to Pioneer. 40 This document was recorded with the Dakota County register of deeds. On September 3,1987, O'Neill's attorney wrote a letter informing Pioneer that O'Neill was in the process of selling his properties and requesting documentation as to Pioneer's interests. On September 29, 1987, Pioneer recovered a judgment against O'Neill in the district court for Dakota County in the sum of $21,740.28 and interest. On an undisclosed date, Pioneer issued a writ of execution upon the subject real estate, under which an execution sale was scheduled to be held on February 3, 1988. On January 21, 1988, an escrow agreement was executed between Scoular, as buyer, O'Neill, as seller, and Security Land Title Company, as escrow agent, whereby the transaction was closed, and Scoular made payment of the entire purchase price, which was deposited with the escrow agent to be disbursed to satisfy various mortgage liens, federal tax liens, real estate taxes, and special assessments against the property. The warranty deed conveying title to the property from O'Neill to Scoular was recorded on January 25, 1988, in the office of the register of deeds of Dakota County. This court last addressed the issue presented by this appeal but a decade ago in Monroe v. Lincoln City Employees Credit Union, 203 Neb. 702, 279 N.W.2d 866 (1979). There, applying law announced earlier in Doe v. Startzer, 62 Neb. 718, 87 N.W. 535 (1901), and Courtnay v. Parker, 16 Neb. 311, 20 N.W. 120 (1884), on appeal after remand 21 Neb. 582, 33 N.W. 262 (1887), we restated the rule that a judgment recovered against one who has agreed to sell land but has made no deed nor received the whole of the purchase money constitutes a lien on the seller's interest in the land. And as noted in Halsted v. Halsted, 169 Neb. 325, 327-28, 99 N.W.2d 384, 386 (1959), "[A] judgment lien on real estate in the name of the judgment debtor is a lien only on the actual interest of the judgment debtor and is subject to all existing equities whether of record or not." See, also, Knaak v. Brown, 115 Neb. 260, 212 N.W. 431 (1927). Applying the principles from Monroe and Halsted, it is clear that Pioneer's judgment lien was subject to the earlier unrecorded contract for the sale of real estate between O'Neill and Scoular. Pioneer's interest in the subject property consisted of a lien on O'Neill's interest as the seller of real estate. While prior liens against the property prevented either O'Neill or Pioneer from receiving any of the proceeds from the sale to Scoular, O'Neill's interest as the seller was conveyed by the sale to Scoular. Similarly, Pioneer's interest in the property, being derived from O'Neill's, was also conveyed by such sale. Thus, we must and do hereby affirm the judgment of the district court. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1920173/	245 Pa. Super. 251 (1976) 369 A.2d 389 Rose McCLOY, Administratrix of the Estate of Samuel McCloy, Deceased, Appellant, v. PENN FRUIT COMPANY. Superior Court of Pennsylvania. Argued March 18, 1976. Decided November 22, 1976. 252 Andrew F. Napoli, Philadelphia, for appellant. Dean F. Murtagh, Philadelphia, with him James M. Marsh, Philadelphia, for appellee. Before WATKINS, President Judge, and JACOBS, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. PRICE, Judge: The litigation from which this appeal arises began with a multi-vehicle collision occurring on December 20, 1962, in the city of Philadelphia. We must reverse the judgment of the lower court and remand for a new trial. Testimony at trial established that plaintiff-appellant's decedent was in a line of cars stopped for a red traffic signal at the corner of 28th Street and Passyunk Avenue. Defendant-appellee's employee, driving appellee's truck, experienced brake trouble and collided with the rear of 253 the last automobile in the line. The force of the collision hurled the automobile into the rear of the automobile in front of it, which, in turn, was hurled into the rear of the decedent's automobile. On December 27, 1962, the decedent, suffering from various maladies including angina and acute tachycardia, was admitted to a Philadelphia hospital. On January 11, 1963, he was discharged, but treatment for anxiety and nervousness continued almost to his death of a myocardial infarction, on May 31, 1963. Appellant based her cause of action on the theory that the automobile accident had aggravated a latent heart condition in the decedent, thereby causing his death. To that end, appellant introduced hospital records to prove that the decedent had been treated for a myocardial infarction two and one-half years prior to the accident. The records and testimony also revealed that the decedent had recovered from the infarction as of December 14, 1960, and that periodic examinations, beginning with one on January 17, 1961, and ending with the last on December 11, 1962, revealed no recurrence of the symptoms. Appellant's expert testified that the accident aggravated the decedent's heart condition, causing his death. Appellee's expert testified that whether the automobile accident caused the death would depend on the evidence accepted as true. On February 9, 1973, a jury rendered a verdict in favor of appellee. The appellant's motion for a new trial was dismissed and this appeal followed. Appellant's sole allegation is that the lower court erred in instructing the jury that foreseeability of injuries is a test for determining proximate cause. In reviewing a lower court's charge to the jury, we must view the charge in its entirety. Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970); Crotty v. Reading Industries, Inc., 237 Pa.Super. 1, 345 A.2d 259 (1975). 254 The lower court's entire explanation of the relationship between proximate cause and a cause of action for negligence is as follows: "Now I want to talk to you about proximate cause. In all these cases, in all these negligence cases, there must be a causal relationship. A causal relationship between the conduct of the plaintiff, negligent conduct of the plaintiff and the damages that result. There must be a causal connection between the two. If a person is negligent but his negligence didn't cause the injuries or the damages, then of course he's not responsible. There must be that causal relationship between the conduct of the defendant and the injuries or damages that were sustained. That's why we say that the plaintiff the defendant's conduct there must be a proximate cause. His conduct must be the proximate cause, as we call that in the law, of the damages or the injuries. So that you have to determine what is proximate cause. What do we mean by that in the law? We know there must be a causal relationship between the conduct and the damages or the injuries. If the defendant was negligent could he have foreseen that such conduct would substantially contribute to the injuries to the plaintiff? Here you should inquire whether the injuries to the plaintiff ought to have been foreseen as likely to flow naturally from his conduct. Could the plaintiff have foreseen its negligent conduct in running into the rear of that first car which is number two on the diagram, and running into the rear of the first car under the circumstances of the speeding, as you find it to be, and all the circumstances in the case. Could he have foreseen, if you determine that he was negligent, that it would have resulted in injury to the man in that front car? If the defendant's conduct was is not a proximate cause, that is, if it is not a proximate cause of the injuries, then the plaintiff cannot recover. The test is not whether the injury 255 might have resulted from the negligence, but whether it would probably have resulted from it. In order to show a proximate you don't have to show, members of the jury, that that precise injury is what could have been foreseen. If you determine that the defendant was negligent, could he have foreseen that some injury as a result of his conduct could some injury to the plaintiff could have been foreseen; not necessarily that a particular injury occurred, to make it the proximate cause." [348a-50a] Causation, as an element of a cause of action for negligence, has been immemorially a potential stumbling block for courts. The difficulty results from the recognized necessity for a limitation on the liability that would follow if a defendant were liable for all of the consequences, remote and immediate, of his negligence. Instead, courts have placed limitations on the inexorable tracing of cause and effect with the result that a defendant is said to be liable only for the injuries of which his conduct has been the "proximate cause." Thus, though it is universally recognized that social policy requires causation to have limits, there is less analytical agreement as to the form the limitation should take. Some jurisdictions have opted to limit causation by foreseeability, and in those jurisdictions, negligence is not said to have proximately caused the plaintiff's injuries unless the defendant could have foreseen the injuries to the plaintiff or unless the injuries were the "natural and probable" result of the defendant's conduct. Annot., 100 A.L.R. 2d 942 (1965). Many jurisdictions, and the Restatement (Second) of Torts (1965), however, do not regard foreseeability as a relevant factor in determining proximate cause. Restatement (Second) of Torts § 435 (1965). Pennsylvania ascribes to this view, and it has long been the law of this state that foreseeability is not a relevant 256 consideration to a determination of proximate cause. Tobash v. Jones, 419 Pa. 205, 213 A.2d 588 (1965); Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289 (1951); Shipley v. Pittsburgh, 321 Pa. 494, 184 A. 671 (1936); Hoover v. Sackett, 221 Pa.Super. 447, 292 A.2d 461 (1972). Therefore, the lower court erred in telling the jury that foreseeability was a consideration to be taken into account in determining proximate cause. Though foreseeability is not relevant to a determination of proximate cause, the concept may be relevant to other elements of the cause of action. Our Supreme Court has noted that whether injuries were foreseeable from a defendant's conduct is relevant to a determination of whether that conduct involved an unreasonable risk of harm and was therefore negligent. Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970). Foreseeability is also relevant to determining whether an intervening force was a superseding cause of harm. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973). Recognizing, therefore, that these distinctions can become overly technical and immaterial, we have recently held harmless a lower court's erroneous instruction connecting the concepts of foreseeability and proximate cause. Fredericks v. Castora, 241 Pa.Super. 211, 360 A.2d 696 (1976). However, in that case, the finding of harmlessness was justified in light of the court's lengthy charge containing a proper instruction on proximate cause. In this case, no proper instruction was given. In addition, in Fredericks, the plaintiff's injuries were clearly a foreseeable result of the defendant's conduct, and, therefore, a misplaced requirement of foreseeability did not result in prejudice to the plaintiff. In this case, the death of the decedent would not have been foreseeable from the automobile collision. Appellee contends that the lower court's instruction only required the foreseeability of some injury to the 257 plaintiff, not the foreseeability of the particular injuries sustained by the decedent. Because some injury was clearly foreseeable, appellee argues that a finding of harmlessness is not precluded. This argument might have some persuasiveness if the jury had received a proper instruction as to proximate cause in addition to the improper reference to foreseeability. However, because the jury was never properly instructed on the issue of causation, a new trial must be awarded. The judgment of the lower court is reversed and the case is remanded for a new trial. HOFFMAN, J., did not participate in the consideration or decision of this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3359374/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION CT Page 6072 The defendants have moved to dismiss the above-captioned administrative appeal on the ground that it was not filed within forty-five days from the mailing of the notice of the administrative decision appealed from, as required by the Uniform Administrative Procedure Act at General Statutes § 4-183(c). The appeal contests the April 4, 1995 decision of a hearing officer for the Bureau of Rehabilitative Services upholding the Bureau's denial of funding for the plaintiff to attend medical school. The plaintiff acknowledges at paragraph 36 of his appeal that "[o]n April 4, 1995 defendant, Director of B.R.S., gave plaintiff notice of his intent to adopt and accept the Hearing Officer's recommended decision as a final decision." The plaintiff caused his appeal to be served on the defendants on May 16, 1995. He filed it in Superior Court on May 23, 1995. General Statutes § 4-183(a) authorizes an appeal to the Superior Court as follows: A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal. General Statutes § 4-183(c) provides in pertinent part as follows: Within forty-five days after mailing of the final decision under Section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the attorney general in Hartford and file the appeal with the clerk of the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the person appealing resides. . . . It is well settled that a statutory right of appeal may be pursued only upon strict compliance with the statutory provision CT Page 6073 by which it is created. Simko v. Zoning Board of Appeals,205 Conn. 413, 419 (1987) aff'd on rehearing, 206 Conn. 374 (1988);Chestnut Realty, Inc. v. Commission on Human Rights andOpportunities, 201 Conn. 350, 356 (1986). Failure to comply with the statutory conditions and requirements deprives the court of subject matter jurisdiction. Rogers v. Commission on Human Rightsand Opportunities, 195 Conn. 543, 552 (1985); Farricielli v.Personnel Appeal Board, 186 Conn. 198, 201 (1982). On its face, § 4-183(c) requires that an administrative appeal brought pursuant to § 4-183(a) be both served and filed in court within forty-five days of the decision from, which the appeal is taken. It has been so construed. GlastonburyVolunteer Ambulance Association, Inc. v. Freedom of InformationCommission, 227 Conn. 848, 852-53 (1993). This court finds that the plaintiff's appeal was filed more than forty-five days after the mailing of the final administrative decision at issue and that the court therefore lacks subject matter jurisdiction. Accordingly, the motion to dismiss is granted. Beverly J. Hodgson Judge of the Superior Court	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1299393/	274 S.E.2d 230 (1980) H. E. MOODY v. TOWN OF CARRBORO. Supreme Court of North Carolina. January 6, 1981. Coleman, Bernholz, Dickerson, Bernholz, Gledhill & Hargrave, Chapel Hill, for plaintiff. Michael B. Brough, Carrboro, for defendant. Petition by defendant for rehearing. N.C, 271 S.E.2d 265. Denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618316/	685 S.W.2d 549 (1985) Fred PENDLETON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Supreme Court of Kentucky. February 28, 1985. 551 Michael A. Wright, Asst. Public Advocate, Frankfort, for appellant. David L. Armstrong, Atty. Gen., Paul E. Reilender, Jr., Asst. Atty. Gen., Frankfort, for appellee. WINTERSHEIMER, Justice. This appeal is from a judgment based on a jury verdict convicting Pendleton of first-degree rape and first-degree sodomy. He was sentenced to life in prison on each charge. Although there are six claims of error, the most important issue involves the excluded testimony from a psychologist who had administered tests and offered expert opinion that Pendleton's psychological profile was not indicative of or consistent with that of a sex offender. The testimony was taken on avowal. The other questions are whether it was proper to allow the child victim to testify, whether a continuance should have been granted for an absent defense witness, whether the testimony about instances of past sexual abuse from the victim's sister should have been admitted, whether references to collateral criminal activity should have been admitted, and whether the prosecution's closing argument was proper. The principal witness was the 6-year-old victim. The child was staying with Pendleton at the time of the alleged incidents. Pendleton and his wife were separated. She described the assaults on her with the use of anatomically correct dolls. On cross-examination she denied ever telling anyone including two defense witnesses that the father had done anything to her. Towards the end of her cross-examination, she refused to listen to the questions and placed her fingers in her ears. The defense objected to her competency to testify because they believed she had no conception of the oath. The victim's 14-year-old sister testified, over objection, that she had been sexually abused by her father over a period of 6 or 7 years, although there was no sexual intercourse. The older sister also testified to a nonsexual assault. The jury was admonished to disregard that testimony. The defense attempted to introduce the testimony of a psychologist regarding tests conducted on Pendleton. The trial court refused to allow the psychologist to testify but permitted his testimony as an avowal. Pendleton testified in his own defense and denied all allegations charged. The jury returned a verdict of guilty on both charges and gave Pendleton two life sentences. This appeal followed. This Court affirms the judgment of the circuit court. The trial judge correctly ruled that the 6-year-old victim was competent to testify. Whether a witness is competent is a question for the sound discretion of the trial court. Unless that discretion is abused, it will not be disturbed on appeal. See Moore v. Commonwealth, Ky., 384 S.W.2d 498 (1964); Capps v. Commonwealth, Ky., 560 S.W.2d 559 (1977). There was no abuse of discretion. The trial judge did not commit reversible error when he denied the motion of Pendleton for a continuance. Pendleton maintains that the trial judge committed reversible error when he denied the defendant's motion for a continuance because of the absence of a potential witness. The affidavit submitted in this case does not meet the requirements of the rule which require the affidavit show the materiality of the evidence expected to be obtained and that due diligence has been used to obtain 552 the evidence. The facts which Pendleton would have used the missing witness to prove were presented to the jury through the victim's testimony. The defense theory was not hampered by the witness's absence. Under all the circumstances the denial of the continuance was nonprejudicial and the trial judge acted within his authority and did not abuse his discretion. RCr 9.24. A reviewing court will not disturb such a decision unless it is clearly demonstrated to be an abuse. Davidson v. Commonwealth, Ky., 555 S.W.2d 269 (1977). The issue regarding evidence of past sexual misconduct by the accused with his daughter Janet who was a witness at the trial is not reversible error. Evidence of independent sexual acts between the accused and persons other than the victim are admissible if such acts are similar to that charged and not too remote in time provided the acts are relevant to prove intent, motive or a common plan or pattern of activity. The acts performed on Janet were of a similar nature as those performed on April. Janet's testimony was admissible as showing a method of operation of sexual activity with his young daughters and to indicate a common and continuing pattern of conduct on the part of the accused. Contrary to the language in Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972), no evidence is admissible to show "lustful inclination." This Court is uncertain as to what is meant by the broad and subjective phrase "lustful inclination." The better standard requires evidence to be the type that shows a common plan or pattern of activity as stated above. Kentucky, like many other jurisdictions, has consistently followed the general rule that evidence of other criminal acts of the accused is inadmissible unless it comes within certain well-defined exceptions which must be strictly construed. Jones v. Commonwealth, Ky., 198 S.W.2d 969 (1947). Evidence of other crime is admissible when the crime has a special relationship to the offense charged. Such evidence would show motive, identity, absence of mistake or accident, intent, or knowledge, or common scheme or plan. See Lindsay v. Commonwealth, Ky., 500 S.W.2d 786 (1973); Leigh v. Commonwealth, Ky., 481 S.W.2d 75 (1972); Rake v. Commonwealth, 450 S.W.2d 527 (1970), Spencer v. Commonwealth, Ky., 554 S.W.2d 355 (1977); Wonn v. Commonwealth, Ky.App., 606 S.W.2d 169 (1980). Evidence of other crimes of sexual misconduct is also admissible for the purpose of showing motive, a common pattern, scheme or plan. See Keeton v. Commonwealth, Ky., 459 S.W.2d 612 (1970), Spencer v. Commonwealth, supra; Jones v. Commonwealth, supra. So much of Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972), is overruled to the extent that it relates to the admission of evidence used to prove lustful inclination in the accused and that case is limited to the same standards that are provided for other crimes, that is, a pattern of activity, common plan or motive and scheme. Rigsby v. Commonwealth, Ky., 495 S.W.2d 795 (1973), is overruled to the same extent. The testimony of the witness was admissible, not to show lustful inclination, but to show motive, common pattern scheme or plan, or common modus operandi. Young v. Commonwealth, Ky., 335 S.W.2d 949 (1960). Pendleton was not denied due process of law or his right to a fair trial by the evidence of prior acts of assault. The unsolicited testimony of prosecution witnesses regarding prior conduct did not constitute grounds for reversal. The jury was promptly and properly admonished not to consider the testimony. The statement made by Janet concerning a bomb threat was not directly related to the appellant. In any event, the trial judge properly admonished the jury not to consider it. No prejudice to Pendleton 553 resulted from the statements and, if there was any problem, it was cured by the trial judge's admonition to the jury. See Ware v. Commonwealth, Ky., 537 S.W.2d 174 (1976); Seay v. Commonwealth, Ky., 609 S.W.2d 128 (1980). The isolated remarks made by the prosecutor in closing argument were not reversible error. When the entire closing argument is considered in context, the remarks complained of do not amount to reversible error. Elswick v. Commonwealth, Ky.App., 574 S.W.2d 916 (1978). When considering the case as a whole, there is no error so prejudicial that there is any substantial possibility that the result could have been any different. Blake v. Commonwealth, Ky., 646 S.W.2d 718 (1983). The trial court correctly refused Pendleton's attempt to introduce the testimony of psychologist Kroger. Kroger's testimony, as given on avowal, should not have been admitted because it went to the ultimate issue of innocence or guilt. The testimony was to the effect that Pendleton's psychological profile was not consistent with that of a sex offender. In addition there was a desire to present Kroger's testimony as to the probability that Pendleton had committed the act. An opinion as to whether the accused had the ability or propensity to commit such an act is improper because it is an opinion on the ultimate fact, that is, innocence or guilt. Consequently it invades the proper province of the jury. Such an opinion is not evidence of mental condition but is a factual conclusion of the witness on the ultimate issue before the jury which can be reached only by consideration of all the facts. Koester v. Commonwealth, Ky., 449 S.W.2d 213 (1969). Also see, Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984), as dispositive of this question because the testimony as proffered went to the ultimate question of innocence or guilt rather than being limited to the professional opinion regarding mental condition. The psychologist's testimony was not limited to a professional opinion or mental condition. Robinson v. Commonwealth, Ky.App., 569 S.W.2d 183 (1978), is distinguishable because it specifically notes that the clinical psychologist did not attempt to say that appellant's mentality was such that she could not perceive a danger. The Court goes on to point out that such testimony would probably be improper. Id. at p. 185. Buckler v. Commonwealth, Ky., 541 S.W.2d 935 (1976), is in no way relevant to the case at bar because it is a case where the defense of insanity is specifically pled. Although the issue is not before us, the case would have been an entirely different animal had the defense of insanity been relied on and the proper statutory notices been given in regard to the psychologist's testimony. The admissibility of expert or opinion testimony has been treated in various ways by other states. We are persuaded that recent decisions by Ohio and Texas reflect our view. In a case remarkably similar to ours, the Texas Court of Appeals in Williams v. State, Tex.App., 649 S.W.2d 693 (1983), refused to allow the testimony of a clinical psychologist where the appellant characterized the witness's testimony as evidence of appellant's character traits, where in fact, the evidence also purported to tell the jury that appellant probably did not have the state of mind required to commit the crimes with which he was charged. Id. at 696. The Texas court determined that a trial court can refuse to admit testimony of a clinical psychologist who was of the opinion that the accused did not possess character disorders and traits usually found in child molesters. Williams v. State, supra. The Ohio Supreme Court has determined that in a prosecution for aggravated murder and aggravated burglary, it was not error to refuse psychiatric testimony, unrelated to an insanity defense, to show that the defendant lacked the mental capacity to form a specific mental state required for crime where the state did not recognize the 554 partial defense of diminished capacity. State v. Wilcox, 70 Oh.St.2d, 24 Oh.Ops.3d 284, 436 N.E.2d 523 (1982). The accused did not rely on insanity as a defense. It must be noted that the defendant did not file notice of insanity defense before trial. KRS 504.070 requires that if expert opinion evidence on mental condition is to be admitted, such a notice must be filed. If the psychological testimony was to be used as a rebuttal to the testimony of Janet as to previous sexual conduct, the trial judge was within his sound discretion in denying its use. Janet's testimony related to conduct and factual situations. The testimony of the psychologist was purely opinion based on tests, examinations and evaluations. Here the basis for attempting to introduce the expert opinion as to mental condition and capacity was to show its relationship to the probability of the accused having committed the charged offenses. The trial court has discretion to control the presentation of evidence. In the absence of any abuse, the reviewing court will not reverse the decision of the trial judge. Estes v. Estes, Ky., 464 S.W.2d 813 (1971). There is no abuse of discretion here. The judgment of the circuit court is affirmed. STEPHENS, C.J., and STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur. LEIBSON and AKER, JJ., dissent by separate opinions. GANT, J., joins in AKER's dissent. LEIBSON, Justice, dissenting. Respectfully, I dissent. There are a number of points in the opinion as written where I disagree. Appellant moved to prohibit evidence from Janet Pendleton, another daughter, charging her father with having committed prior acts of sexual abuse against Janet, offenses not charged in the indictment. The testimony was admitted. The testimony was of prior instances, years earlier, involving different sexual contact, "messing" around but not intercourse or sodomy. Warner v. Commonwealth, Ky., 621 S.W.2d 22 (1981) was reversed because the trial court erroneously admitted evidence similar in character. In Warner, a deputy jailer was convicted of three counts of rape and one count of sodomy committed against inmates under his supervision. The trial court had permitted cross-examination of the defendant regarding "sexual advances" to other inmates, which, after denial, was followed by rebuttal evidence offered to prove such conduct. The court held that such evidence is not admissible except in "special cases" where there is proof of "prior acts of a similar or identical nature, not too remote in time." (Emphasis original) 621 S.W.2d at 25. The evidence in the present case does not qualify for the exception to the rule. This case should be reversed. The majority opinion holds that this testimony from daughter Janet charging prior instances of sexual misconduct was not admissible to prove "lustful inclination" in the accused, overruling Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972) to the extent that Russell approved use of such evidence to prove "lustful inclination." But the majority opinion in the present case then holds that such evidence could be admitted "to prove intent, motive or a common plan or pattern of activity." There is no distinction between these two phrases as they apply in the present situation. The only issue in this case was did the appellant commit the criminal acts against daughter April charged in the indictment? The only reason the past sexual misconduct daughter Janet testified to would have any relevance to the issue in the case would be if it served to show the accused's "lustful inclination" to commit such acts.[1] Lustful inclination, propensity 555 to commit the crime charged, and "intent, motive or a common plan or pattern of activity" (which is the current phraseology of the majority opinion), are all of one meaning here. We should not create a formula to do what we say cannot be done. Appellant was denied the right to present testimony from a qualified psychologist, which was offered as "expert testimony of mental condition . . . as affecting the probability of the [appellant] having committed the charged offenses." The psychologist's testimony was offered to prove that the appellant "does not have a psychological profile that [is] indicative of or consistent with a sex offender." This testimony refutes the testimony from daughter Janet, which, if it had any relevancy, served only to indicate a propensity to commit the acts against daughter April with which the appellant is charged. Appellant had a constitutional right to refute this testimony against him. U.S. Const., Amend. VI; Ky. Const., § 11. The majority opinion erroneously miscites Koester v. Commonwealth, Ky., 449 S.W.2d 213 (1969) and Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984) as support for denying the admissibility of the psychologist's expert testimony. The rule underlying the holding in these two cases is exactly the opposite. In Koester, a psychiatrist was asked for his subjective "opinion concerning the guilt or innocence of the accused," the "very issue it was within the province of the jury to resolve." Koester, supra at 215. We excluded such evidence on the basis of "the difference between an objective opinion and a subjective conclusion," stating "it is the difference between the mental abnormality and the specific `product' produced thereby." Id. In the present case counsel for appellant offered testimony directed at the accused's mental condition, not the psychologist's subjective conclusion as to guilt of the particular offense. In Hampton v. Commonwealth, supra 666 S.W.2d at 742, we excluded an offer of testimony from a witness designated a "clinical social worker," that in his opinion the appellant "would not have become involved with a twelve year old victim." We avoided coming to grips with the underlying question as to whether relevant evidence of psychological propensity should be admitted, citing two reasons: (1) the absence of any "offer of proof by avowal that the witness was an expert"; and (2) "[t]he testimony as proffered went to the ultimate question of the guilt or innocence of the appellant, rather than being limited to a professional opinion regarding mental condition." Id. In the present case we are faced squarely with testimony from a qualified expert that is limited to a professional opinion regarding mental condition. We have heretofore recognized evidence similar in nature as admissible in Buckler v. Commonwealth, Ky., 541 S.W.2d 935 (1976), and the Court of Appeals has also done so in Robinson v. Commonwealth, Ky.App., 569 S.W.2d 183 (1978). The majority opinion is in conflict with precedent, is outside the mainstream of American law, and, most importantly, in the context of this case where it refuted the opposite inferrence resulting from the testimony of sister Janet Pendleton, refusing such testimony denied appellant's constitutional right to confront the evidence against him. By approving both the use of the testimony from sister Janet and exclusion of the psychologist's testimony which tends to refute it, we provide the prosecutor a license to introduce testimony which cannot be rebutted. There are two other errors which, standing alone, would not necessarily require reversal. But these errors, when considered cumulative of the errors previously discussed, are of an overwhelming nature. First, the jury heard testimony of a highly inflammatory, prejudicial and irrelevant nature, 556 of unrelated collateral criminal activity supposedly committed by the appellant. This involved acts of a violent and reprehensible nature supposedly committed by the appellant. In the circumstances of this case the trial court's admonitions to disregard such testimony were not sufficient to cure the error. Likewise, with regard to closing argument, the prosecutor was permitted to argue, improperly and over objection, that "the jury punish Fred Pendleton for what he's done to the lives of his daughters." The argument urging the jury to punish for offenses not charged in the indictment was highly improper. Beason v. Commonwealth, Ky., 548 S.W.2d 835 (1977); Brown v. Commonwealth, Ky., 357 S.W.2d 681 (1962). The appellant received two life sentences. It cannot be said beyond a reasonable doubt that the improper argument did not contribute to the verdict obtained. This case should be reversed, and a new trial ordered. AKER Justice, dissenting. I concur in the dissent filed by Leibson, J., herein, insofar as it would reverse on the Warner issue concerning testimony of sexual activities by Appellant toward Janet. Otherwise I would affirm. I am authorized to state that GANT, J., joins me in this concurrence to the dissent. NOTES [1] The Commonwealth's Brief "submits that Janet's testimony regarding uncharged prior sexual offense (sic.) committed upon her by appellant were properly allowed into evidence as proof of a lustful sexual disposition toward children and a continuing pattern of conduct." (Emphasis added)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2697946/	[Cite as State v. Waugh , 2011-Ohio-1219.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 10CA25 : vs. : Released: February 16, 2011 : JOHN D. WAUGH, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES: David Reid Dillon, South Point, Ohio, for Defendant-Appellant. J.B. Collier, Jr., Lawrence County Prosecutor, and Robert C. Anderson, Lawrence County Assistant Prosecutor, Ironton, Ohio, for Plaintiff- Appellee. _____________________________________________________________ McFarland, J.: {¶1} Defendant-Appellant, John D. Waugh, appeals the decision of the Lawrence County Court of Common Pleas revoking his community control sanctions and sentencing him to three years in prison. Waugh’s appellate counsel, after reviewing the record below and consulting with his client, states he can find no meritorious claim for an appeal and, pursuant to Anders v. California, requests permission to withdraw from the case. {¶2} Pursuant to Anders, counsel does, however, raise four potential assignments of error for us to consider: 1) the trial court did not Lawrence App. No. 10CA25 2 take into account the misconduct of staff members at Waugh’s treatment facility; 2) the court’s decision was against the manifest weight of the evidence; 3) there was a question as to the voluntariness of Waugh’s statement admitting drug use; and 4) he had ineffective assistance of counsel. After a full examination of the record below, we find all four potential assignments of error to be wholly frivolous. As such, we grant counsel’s request to withdraw and affirm the decision of the trial court. I. Facts {¶3} As part of a plea agreement, Waugh pleaded guilty to attempted burglary, a third-degree felony. Through a judgment entry dated November 6, 2008, the trial court sentenced him to four years of community control sanctions. As part of those control sanctions, the trial court ordered Waugh to successfully complete a nine to twelve month drug treatment program at the New Beginnings treatment facility. The court further ordered him to authorize the Bureau of Community Corrections to monitor his progress at that facility. Waugh was also ordered to immediately report to Community Corrections upon his discharge from New Beginnings. Another of the control sanctions was that he not “use, own, possess or have immediate control of any type of controlled substance, drug, or narcotic, except on prescription by a physician.” The court reserved jurisdiction to Lawrence App. No. 10CA25 3 impose a prison sentence if Waugh violated the terms of his community control sanctions. {¶4} Waugh was subsequently involuntarily discharged from New Beginnings in April 2010. Community Corrections contacted him by phone, and gave him three days to report to their office. Waugh failed to report as required, a capias was issued, and he was apprehended at his residence. Community Corrections then administered a drug screen and Waugh tested positive for OxyContin and marijuana. Though he initially denied it, Waugh verbally admitted to drug use without proper medical authorization when presented with the results of his drug screen. He also signed a written acknowledgement to that effect. {¶5} On April 26, 2010, the State moved to revoke Waugh’s community control sanctions on the grounds that he had 1) failed to report to the Bureau of Community Corrections as required; 2) lied or intentionally misled probation officers; 3) used or possessed controlled substances; and 4) failed to pay court costs. At his arraignment on these charges, Waugh stated his intent to contest his discharge from New Beginnings. The State then withdrew its allegations concerning Waugh's involuntary discharge from the treatment program, but elected to proceed on the other grounds. Lawrence App. No. 10CA25 4 {¶6} A community control sanctions revocation trial was held on May 5, 2010. During trial, the State presented the testimony of two Community Corrections probation officers. The officers testified that Waugh had failed to report to their office as required after he was dismissed from New Beginnings, that he had failed a drug screen after he was apprehended, that he had initially lied to them concerning his drug use, that he later verbally admitted to using drugs, and that he had failed to pay court costs as required. The State also admitted into evidence Waugh’s written statement admitting the use of OxyContin and marijuana. Waugh presented no evidence in his defense. The trial court subsequently sentenced him to serve three years in prison of the four year sentence the court had previously reserved. II. Potential Assignments of Error First Potential Assignment of Error ALLEGATIONS OF MISCONDUCT ON THE PART OF STAFF AND PATIENTS AT THE TREATMENT FACILITY FROM WHICH DEFENDANT WAS DISCHARGED PRECLUDED ITS USE IN A MOTION TO REVOKE COMMUNITY CONTROL SANCTIONS. Second Potential Assignment of Error THE DECISION OF THE COURT BELOW WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Lawrence App. No. 10CA25 5 Third Potential Assignment of Error THE ISSUE OF THE VOLUNTARINESS OF THE WRITTEN ADMISSION OF DRUG USE WAS OF SUFFICIENT WEIGHT TO WARRANT REVERSAL OF THE COURT'S JUDGMENT. Fourth Potential Assignment of Error THERE WAS INEFFECTIVE ASSISTANCE OF COUNSEL. III. Anders Brief {¶7} Waugh’s appellate counsel has filed an Anders brief in this action. Under Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, counsel may ask permission to withdraw from a case when he or she has conscientiously examined the record, can discern no meritorious claims for appeal and has determined the case to be wholly frivolous. Id. at 744; State v. Davis, 4th Dist. No. 10CA9, 2010-Ohio-5294, at ¶10. Counsel’s request to withdraw must be accompanied with a brief identifying anything in the record that could arguably support the client's appeal. Anders at 744; Davis at ¶10. Further, counsel must provide the client with a copy of the brief and allow sufficient time for him or her to raise any other issues, if the client chooses to do so. Id. {¶8} Once counsel has satisfied these requirements, the appellate court must conduct a full examination of the trial court proceedings to determine if meritorious issues exist. If the appellate court determines that the appeal is frivolous, it may grant counsel’s request to withdraw and Lawrence App. No. 10CA25 6 address the merits of the case without affording the appellant the assistance of counsel. Id. If, however, the court finds the existence of meritorious issues, it must afford the appellant assistance of counsel before deciding the merits of the case. Anders at 744; State v. Duran, 4th Dist. No. 06CA2919, 2007-Ohio-2743, at ¶7. {¶9} In the current action, Waugh’s appellate counsel concludes the appeal is wholly frivolous and has asked permission to withdraw. Pursuant to Anders, counsel has filed a brief raising four potential assignments of error for this court to consider. Though advised of his right to do so, Waugh did not file an additional pro se brief. IV. First Potential Assignment of Error {¶10} The first potential assignment of error concerns allegations of misconduct on the part of the staff at New Beginnings. The State initially listed Waugh’s involuntary discharge from New Beginnings, and his subsequent failure to report to Community Corrections, as a violation of his community control sanctions. However, before the matter came on for trial, the State dropped the issue as a cause for revocation. Further, the trial court neither mentioned Waugh’s involuntary discharge from New Beginnings nor relied on that factor in issuing its decision. Accordingly, this potential assignment of error has no merit. Lawrence App. No. 10CA25 7 V. Second Potential Assignment of Error {¶11} Waugh’s second potential assignment of error is that the trial court’s decision was against the manifest weight of the evidence. When determining whether a criminal conviction is against the manifest weight of the evidence, we “will not reverse a conviction where there is substantial evidence upon which the [trier of fact] could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt.” State v. Michael, 4th Dist. No. 09CA887, 2010-Ohio-5296, at ¶21, quoting State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the syllabus. {¶12} Here, the State clearly presented substantial evidence to prove Waugh had violated his community control sanctions. In fact, the testimony of the probation officers was conclusive and uncontested. That testimony first established the conditions of Waugh’s community control sanctions, including that he was not to possess or use illegal drugs. The testimony then revealed Waugh had failed a drug screen, verbally admitted to using drugs, and signed a statement admitting he had used OxyContin and marijuana. Further, that written statement, itself, was entered into evidence. Again, Waugh failed to present any evidence rebutting or contradicting the probation officers’ testimony. Lawrence App. No. 10CA25 8 {¶13} In light of the above, there was substantial evidence for the trial court to reasonably conclude, beyond a reasonable doubt, that Waugh had violated the terms of his community control sanctions. Accordingly, the trial court’s decision was not against the manifest weight of the evidence and Waugh’s third potential assignment of error has no merit. VI. Third Potential Assignment of Error {¶14} The third potential assignment of error questions the voluntariness of Waugh’s written admission. However, there is no evidence in the record to indicate that the admission was anything other than voluntary. When he was apprehended, Waugh did initially deny that he had used illegal drugs, but after his drug screen detected the use of OxyContin and marijuana, he quickly changed his story. Probation officers testified that, at that point, he verbally admitted to using the drugs approximately two days prior. Then, he signed the written drug admission statement acknowledging the same. The officer’s testimony and the written statement were uncontradicted at trial. Accordingly, due to the complete lack of evidence suggesting Waugh’s admission was involuntary, we overrule his third potential assignment of error. Lawrence App. No. 10CA25 9 VII. Fourth Potential Assignment of Error {¶15} Waugh’s final potential assignment of error is that he had ineffective assistance of counsel. In order to establish ineffective assistance of counsel, an appellant must show that counsel’s representation was both deficient and prejudicial. State v. Miller, 4th Dist. No. 10CA2, 2010-Ohio- 3710, at ¶4; Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052. Deficient representation means counsel’s performance was below an objective standard of reasonableness. State v. Madden, 4th Dist. No. 09CA883, 2010-Ohio-176, at ¶17; Strickland at 687-688; To show prejudice, an appellant must show it is reasonably probable that, except for the errors of his counsel, the proceeding’s outcome would have been different. Madden at ¶18; Strickland at 694. “However, both prongs of this ‘Strickland test’ need not be analyzed if a claim can be resolved under one prong.” Miller at ¶4, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52. {¶16} Here, we can find no evidence in the record indicating that, but for Waugh’s trial counsel’s errors, his community control sanctions would not have been revoked. As previous shown, the evidence was uncontested at trial that Waugh had 1) failed a drug screen; 2) verbally admitted to using drugs; and 3) executed a written statement acknowledging Lawrence App. No. 10CA25 10 the use of OxyContin and marijuana – directly in violation of his community control sanctions. It light of such evidence, no alleged errors of counsel would have made it reasonably probable that the trial’s outcome would have been different. As such, his representation was not prejudicial and we overrule his final potential assignment of error. VIII. Conclusion {¶17} After conducting a full and independent examination of the record and proceedings below, we agree with Waugh’s appellate counsel and conclude there are no meritorious issues for appeal. Having reviewed the four potential assignments of error and having found the appeal to be wholly frivolous, we hereby grant counsel's motion to withdraw and affirm, in full, the decision of the court below. JUDGMENT AFFIRMED. Lawrence App. No. 10CA25 11 JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED 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 Lawrence County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED 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. Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion. For the Court, BY: _________________________ Judge Matthew W. McFarland 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/1618334/	38 So. 3d 143 (2010) LESTER v. STATE. No. 2D10-1189. District Court of Appeal of Florida, Second District. June 23, 2010. Decision Without Published Opinion Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1622986/	609 S.W.2d 787 (1980) Charles Edwin CARLOCK, Appellant, v. The STATE of Texas, Appellee. No. 59451. Court of Criminal Appeals of Texas, Panel No. 2. November 26, 1980. Rehearing Denied January 14, 1981. 788 Malcolm Dade, Dallas, for appellant. Henry Wade, Dist. Atty., and T. Michael Sutton, Jim Johnson and Joe Revesz, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State. Before DOUGLAS, ROBERTS and CLINTON, JJ. OPINION ROBERTS, Judge. On August 11, 1976, Jesus Baca, working in the capacity of an undercover police officer, entered the Denmark Bookstore in Dallas for the purpose of "making an obscenity case." While inside the store, Officer Baca selected a magazine entitled "Candid," went to the cashier's counter and purchased the magazine from the appellant. After viewing the magazine's contents with two other officers who had been waiting outside the Denmark, Officer Baca returned to the bookstore and arrested the appellant for the offense of commercial obscenity. A jury found the appellant guilty and assessed his punishment at 120 days' confinement and a fine of $1000.00. In his first ground of error, the appellant contends that the trial court erred in excluding from evidence a public opinion survey dealing with community standards regarding obscenity. The appellant called only one witness during the guilt-innocence stage of the trial, Dr. Roderick Bell. At a hearing out of the presence of the jury, Dr. Bell testified that in May and June of 1977, he conducted a poll of Dallas County regarding that community's standards as to explicit sexual materials. The trial court refused to admit a summary of this survey's results or to permit the appellant's expert witness to testify before the jury concerning the opinion-poll. For reasons discussed below, we find the exclusion of this evidence was error and accordingly reverse. The appellant was charged by information with the offense of commercially distributing obscene material while knowing the content of the material. V.T.C.A., Penal Code, Sec. 43.23(a)(1), (1973). At the time of the alleged offense, V.T.C.A., Penal Code, Sec. 43.21(1) as amended, provided the following definition of "obscene:" "In this subchapter: (1) `Obscene' means having as a whole a dominant theme that: (A) appeals to the prurient interest of the average person applying contemporary community standards; (B) depicts or describes sexual conduct in a patently offensive way; and (C) lacks serious literary, artistic, political, or scientific value." (Emphasis supplied.) Under this definition, the issue of what is or is not acceptable according to "contemporary community standards" is a question the jury must resolve before determining whether the particular material distributed is in fact obscene. In other words, the community's contemporary standards regarding obscenity are at issue. Evidence which tends to show such relevant standards would, therefore, assist the jury in resolving the factual issues raised in an obscenity prosecution. In the instant case, the excluded expert testimony and the survey summary were offered by the appellant as evidence of the standards existing in Dallas County concerning explicit sexual materials. 789 The State advances several arguments in support of its contention that the trial court properly excluded the appellant's expert evidence. It first asserts that the assistance of an expert witness is not needed for a juror to determine community standards and, therefore, exclusion of such evidence is within the trial court's discretion. The State's argument is premised upon Paris Adult Theater I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), in which the United States Supreme Court held that expert testimony on behalf of the prosecution is not constitutionally required because the allegedly obscene material itself is sufficient evidence for the determination of the question of obscenity. But that holding cannot justify denying a defendant the right to introduce the best evidence he can produce upon a material element of the statutory definition of obscenity. Indeed, in another opinion delivered the same day as Paris Adult Theater I, the Supreme Court expressed the view that while expert affirmative evidence upon relevant community standards is not required, a defendant should be free to introduce appropriate expert testimony. Kaplan v. California, 413 U.S. 115, 93 S. Ct. 2680, 37 L. Ed. 2d 492 (1973); see also Smith v. California, 361 U.S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1959). In Berg v. State, 599 S.W.2d 802 (Tex.Cr. App.1980), this Court also recognized the right of a defendant to introduce evidence as to contemporary community standards in a commercial obscenity prosecution. Berg held that it was error for the trial court to exclude from evidence certain magazines and films offered by the defendant because such materials were relevant to and probative of the fact issue raised by Section 43.21(1)(A). The public opinion survey in this case, like the materials offered in Berg, is evidence which attempts to define the applicable community standards. Although such expert evidence is not required from either the State or the defendant, it is certainly relevant to the determination of a material fact issue. We therefore reject the State's first contention that the trial court could properly exclude the appellant's expert evidence as to contemporary community standards in the exercise of judicial discretion.[1] The State next contends that the exclusion of the public opinion survey from evidence was proper because the poll was taken in May and June of 1977, and, therefore, did not reflect the community standards of August 11, 1976, the data of the alleged offense. The State did not present any evidence in support of its contention, and it is doubtful that the standards at issue did in fact change significantly in this relatively short period of time. But regardless of whether the State's claim is or is not correct, any such alleged defect in the manner in which a poll was conducted should affect only the weight to be accorded the survey results rather than the admissibility of the survey itself. Since the jury is the exclusive judge of the weight to be given to the testimony,[2] the trial court should have permitted the jury to hear and consider the appellant's opinion survey. The State also contends that the public opinion survey was inadmissible because it dealt with only general opinions regarding obscenity rather than the community's opinion of the particular magazine in question. Although we do not decide the question, it is arguable that the survey would have *790 been more probative if it had asked whether the particular magazine in question appealed to the prurient interest of the average person. Even so, this would not authorize the trial court to exclude from evidence the public opinion survey offered in this case. The expert evidence would not be rendered inadmissible simply because more probative questions could have been incorporated into the poll. Rather the weakness perceived by the State in appellant's evidence goes only to its weight. In its final contention the State asserts that the public opinion survey was properly excluded from evidence because it appears to be "somewhat biased." The appellant's expert witness testified extensively concerning the methodology and approach commonly used to conduct an opinion survey. Dr. Bell further testified that such standard procedures were complied with in making the survey offered as evidence in this case. The State does not deny this generally, but points to specific questions as being improper.[3] It is apparently the State's contention that such improper questions are the inevitable result of the "obvious" pressure a pollster in such a situation is under to obtain a favorable survey. Undoubtedly, survey results obtained by active fraud should be excluded from evidence. But we find nothing in the record to suggest the existence of fraud in the instant case. Rather, we are simply confronted with the State's contention that the survey's wording possibly misled or confused the individuals polled. Such an argument should be addressed to the jury in its capacity as the exclusive judge of the weight to be given to the evidence. The issue presented by the appellant's twelfth ground of error probably will be raised again upon the retrial of this case; therefore, in the interest of judicial economy we shall consider the alleged error. The appellant contends the trial court erred by admitting into evidence the magazine purchased from the appellant by Officer Baca because this evidence was obtained as the result of an illegal arrest. In support of his contention, the appellant argues that a police officer, without a warrant or any other judicial authority, cannot determine that a particular book, film or other item is "obscene" and in his sole discretion arrest an individual for commercially distributing such material. We overrule the appellant's twelfth ground of error for two reasons. First, an officer need not determine whether the material in question is in fact "obscene" under Section 43.21(1) of the Penal Code in order to make a valid arrest. Instead, a warrantless arrest is proper under Article 14.01(b), V.A.C.C.P., if there is probable cause to believe that a publication commercially distributed in the officer's presence or within his view is obscene. Price v. State, 579 S.W.2d 492 (Tex.Cr.App.1979). The magazine in question in this case provided sufficient probable cause for a warrantless arrest of the appellant. Second, we further find that the admissibility of this magazine does not depend on the validity of appellant's arrest. The magazine was not "seized" incident to an arrest. It was voluntarily sold by the appellant to Officer Baca. "The Fourth Amendment protects against unreasonable searches and seizures, not against `unreasonable' purchases." Price v. State, Id. at 496. The judgment is reversed and the cause remanded DOUGLAS, J., dissents. NOTES [1] Although the admissibility of a public opinion survey in a commercial obscenity prosecution has not been previously decided by this Court, we note that other courts have held that properly conducted polls are admissible in an obscenity case to show relevant community standards. Commonwealth v. Trainor, 374 Mass. 759, 374 N.E.2d 1216 (1978); People v. Thomas, 37 Ill.App.3d 320, 346 N.E.2d 190 (1976); People v. Nelson, 88 Ill.App.3d 196, 43 Ill. Dec. 476, 410 N.E.2d 476 (1980). The Supreme Court of Texas has also considered the admissibility of an opinion survey in civil cases, and has held that such "evidence is admissible whether it is considered to be nonhearsay or within the state of mind exception of the hearsay rule." Texas Aeronautics Commission v. Braniff Airways, Inc., 454 S.W.2d 199, 203 (Tex.1970). [2] V.A.C.C.P., Art. 38.04. [3] For example, the State specifically complains of Question No. 13: "IS IT YOUR OPINION THAT IN RECENT YEARS THE STANDARDS IN DALLAS COUNTY HAVE CHANGED SO THAT DEPICTION OF NUDITY AND SEXUAL ACTIVITIES IN MOVIES AND PUBLICATIONS AVAILABLE ONLY TO ADULTS ARE NOW MORE ACCEPTABLE OR LESS ACCEPTABLE?"	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/98056/	232 U.S. 37 (1914) UNITED STATES v. REGAN. No. 503. Supreme Court of United States. Argued October 22, 1913. Decided January 5, 1914. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 38 Mr. Assistant Attorney General Denison, with whom Mr. Assistant Attorney General Harr was on the brief, for the United States. Mr. David L. Podell, with whom Mr. Max D. Steuer was on the brief, for respondent. 40 MR. JUSTICE VAN DEVANTER delivered the opinion of the court. This was an action of debt prosecuted by the United States, under § 5 of the act of February 20, 1907, c. 1134, 34 Stat. 898, 900, known as the Alien Immigration Act, to recover $1,000 as a penalty for an alleged violation by the defendant of § 4 of that act; and the question now to be considered is, whether it was essential to a recovery that the evidence should establish the violation beyond a reasonable doubt. The District Court instructed the jury that this measure of proof was required, and the instruction was approved by the Circuit Court of Appeals. 183 Fed. Rep. 293; 203 Fed. Rep. 433. The two sections are as follows: "SEC. 4. That it shall be a misdemeanor for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation or in any way to assist or encourage the importation or migration of any contract laborer or contract laborers into the United States, unless such contract laborer or contract laborers are exempted under the terms of the last two provisos contained in section two of this Act. "SEC. 5. That for every violation of any of the provisions of section four of this Act the persons, partnership, company, or corporation violating the same, by knowingly assisting, encouraging, or soliciting the migration or importation of any contract laborer into the United States shall forfeit and pay for every such offense the sum of one thousand dollars, which may be sued for and recovered by the United States, or by any person who shall first bring his action therefor in his own name and for his own benefit, including any such alien thus promised labor or service of any kind as aforesaid, as debts of like amount are now recovered in the courts of the United States; and separate suits may be brought for each alien thus promised 41 labor or service of any kind as aforesaid. And it shall be the duty of the district attorney of the proper district to prosecute every such suit when brought by the United States." These sections are largely copied from the like-numbered sections of the act of March 3, 1903, c. 1012, 32 Stat. 1213, the words "shall be unlawful" in § 4 being changed to "shall be a misdemeanor," and the words "shall forfeit and pay for every such offense" in § 5, with what follows them, remaining as before. Whether cases like this are civil or criminal and whether they are attended by the incidents of the one or the other have been so often considered by this court that our present duty, as we shall see, is chiefly that of applying settled rules of decision. In Stockwell v. United States, 13 Wall. 531, the question arose, whether the United States could maintain a civil action of debt to recover a penalty incurred under the act of March 3, 1823, c. 58, 3 Stat. 781, providing that any person receiving, concealing or buying merchandise, knowing that it was illegally imported and subject to seizure, should, "on conviction thereof," forfeit and pay double the value of the merchandise, there being also a provision that the penalty might be "sued for and recovered," in the name of the United States, in any court of competent jurisdiction; and this court held that the civil action was maintainable, saying (p. 542): "But it is insisted that when the government proceeds for a penalty based on an offense against law, it must be by indictment or by information. No authority has been adduced in support of this position, and it is believed that none exists. It cannot be that whether an action of debt is maintainable or not depends upon the question who is the plaintiff. Debt lies whenever a sum certain is due to the plaintiff, or a sum which can readily be reduced to a certainty a sum requiring no future valuation to settle its amount. 42 It is not necessarily founded upon contract. It is immaterial in what manner the obligation was incurred, or by what it is evidenced, if the sum owing is capable of being definitely ascertained." And again (p. 543): "The expression `sued for and recovered' is primarily applicable to civil actions, and not to those of a criminal nature." In United States v. Zucker, 161 U.S. 475, the Government by an action of debt sought to recover, as a penalty, the value of imported merchandise the entry of which had been fraudulently secured in violation of § 9 of the act of June 10, 1890, c. 407, 26 Stat. 131, 135, which subjected one committing that offense to a forfeiture of the merchandise, or its value, and to a fine and imprisonment. At the trial the United States sought to read in evidence the deposition of an absent witness theretofore taken in the cause, but the deposition was excluded upon the theory that the case, though civil in form, was in substance criminal, and therefore that the defendants were entitled, under the Sixth Amendment to the Constitution, to be confronted with the witnesses against them. This resulted in a judgment for the defendants, and when the case came here this court pronounced the trial court's theory untenable, sustained the Government's right to read the deposition, and reversed the judgment, saying (p. 481): "A witness who proves facts entitling the plaintiff in a proceeding in a court of the United States, even if the plaintiff be the Government, to a judgment for money only, and not to a judgment which directly involves the personal safety of the defendant, is not, within the meaning of the Sixth Amendment, a witness against an `accused' in a criminal prosecution; and his evidence may be brought before the jury, in the form of a deposition, taken as prescribed by the statutes regulating the mode in which depositions to be used in the courts of the United States may be taken. The defendant, in such a case, is no more entitled to be confronted at the trial with the witnesses 43 of the plaintiff than he would be in a case where the evidence related to a claim for money that could be established without disclosing any facts tending to show the commission of crime." In Hepner v. United States, 213 U.S. 103, the Government had brought an action of debt, under § 5 of the Alien Immigration Act of 1903, 32 Stat. 1213, 1214, to recover the penalty prescribed for a violation of § 4 of that act they being the sections from which those now under consideration are largely copied and in the progress of the cause it became necessary for this court to consider whether a verdict for the Government could be directed under the rule applicable in civil actions. Upon an extended review of the cases bearing upon the subject, including Atcheson v. Everitt, 1 Cowp. 382, the question was answered in the affirmative, and it was said: (p. 108) "It must be taken as settled law that a certain sum, or a sum which can readily be reduced to a certainty, prescribed in a statute as a penalty for the violation of law, may be recovered by civil action, even if it may also be recovered in a proceeding which is technically criminal. Of course, if the statute by which the penalty was imposed contemplated recovery only by a criminal proceeding, a civil remedy could not be adopted. United States v. Claflin, 97 U.S. 546. But there can be no doubt that the words of the statute on which the present suit is based are broad enough to embrace, and were intended to embrace, a civil action to recover the prescribed penalty. It provides that the penalty of one thousand dollars may be `sued for' and recovered by the United States or by any `person' who shall first begin his `action' therefor `in his own name and for his own benefit,' `as debts of like amount are now recovered in the courts of the United States;' and `separate suits' may be brought for each alien thus promised labor or service of any kind. The district attorney is required to prosecute every such 44 `suit' when brought by the United States. These references in the statute to the proceeding for recovering the penalty plainly indicate that a civil action is an appropriate mode of proceeding. * * * * * * * * (p. 111) "But the decision in the Zucker case is important in that it recognizes the right of the Government, by a civil action of debt, to recover a statutory penalty, although such penalty arises from the commission of a public offense. It is important also in that it decides that an action of that kind is not of such a criminal nature as to preclude the Government from establishing, according to the practice in strictly civil cases, its right to a judgment by depositions taken in the usual form, without confronting the defendant with the witnesses against him. * * * * * * * * (p. 115) "The defendant was, of course, entitled to have a jury summoned in this case, but that right was subject to the condition, fundamental in the conduct of civil actions, that the court may withdraw a case from the jury and direct a verdict, according to the law, if the evidence is uncontradicted and raises only a question of law." In Atcheson v. Everitt, approvingly cited in that case, the question for decision was, whether certain testimony, admissible by statute in civil but not in criminal causes, could be received in an action of debt for the pecuniary penalty for bribery at an election of a Member of Parliament, an act not merely prohibited but indictable as a crime. Notwithstanding the defendant's insistent objection, the testimony was held to be rightly receivable, it being said by Lord Mansfield, who spoke for the entire court (1. Cowp. 391): "Penal actions were never yet put under the head of criminal law, or crimes. The construction of the statute must be extended by equity to make this a criminal case. It is as much a civil action, as an action for money had and received." 45 In Wilson v. Rastall, 4 D. & E. 753, 758, also approvingly cited in the Hepner Case, one of the questions was, whether, after a verdict for the defendant, a new trial could be granted, upon the plaintiff's motion, in an action of debt for the pecuniary penalty for bribing voters, an indictable crime, and the court gave an affirmative answer and awarded a new trial, Lord Kenyon, Ch. J., observing: "All the cases of indictments I lay out of the case, because they are criminal cases, and are exceptions to the general rule. But I consider this as a civil action." In United States v. Stevenson, 215 U.S. 190, which was a prosecution by indictment for a violation of § 4 of the present Alien Immigration Act, the question for decision was, whether that mode of enforcing the penalty was admissible in view of the provisions of § 5 permitting a civil action. It was held that an indictment would lie, and in the course of the opinion, after observing that in the absence of some provision to the contrary a statutory penalty may be recovered by either a criminal prosecution or a civil action of debt, it was said (p. 198): "It is to be noted that this statute (§ 5 of the Immigration Act) does not in terms undertake to make an action for the penalty an exclusive means of enforcing it, and only provides that it may be thus sued for and recovered. There is nothing in the terms of the act specifically undertaking to restrict the Government to this method of enforcing the law. It is not to be presumed, in the absence of language clearly indicating the contrary intention, that it was the purpose of Congress to take from the Government the well-recognized method of enforcing such a statute by indictment and criminal proceedings." And then, after commenting upon the change in § 4 whereby the words "shall be unlawful" were replaced by "shall be a misdemeanor," and observing that the only purpose in this was to make clear the right of the Government to prosecute as for a crime, it was further said (p. 199): "Congress having 46 declared the acts in question to constitute a misdemeanor, and having provided that an action for a penalty may be prosecuted, we think there is nothing in the terms of the statute which will cut down the right of the Government to prosecute by indictment if it shall choose to resort to that method of seeking to punish an alleged offender against the statute. Nor does this conclusion take away any of the substantial rights of the citizen. He is entitled [meaning in a prosecution by indictment] to the constitutional protection which requires the Government to produce the witnesses against him, and no verdict against him can be directed, as might be the case in a civil action for the penalty. Hepner v. United States, 213 U.S. 103." The latest case in this court bearing upon the subject is Chicago, Burlington & Quincy Railway Co. v. United States, 220 U.S. 559, which was an action to recover penalties incurred by the violation of the Safety Appliance Acts of Congress. In the trial court the Government prevailed, and when the judgment came here for review the railway company contended that the action was in effect a criminal prosecution and in consequence not controlled by the prior decision in St. Louis, Iron Mt. & Southern Railway Co. v. Taylor, 210 U.S. 281, a strictly civil case arising under the same statutes and upon which the Government relied; but it was held otherwise, the court saying (p. 578): "This contention is unsound, because the present action is a civil one." It is a necessary conclusion from these cases (1) that, as respects a pecuniary penalty for the commission of a public offense, Congress competently may authorize, and in this instance has authorized, the enforcement of such penalty by either a criminal prosecution or a civil action; (2) that the present action is a civil one and appropriate under the statute; and (3) that, if not directed otherwise, such an action is to be conducted and determined according 47 to the same rules and with the same incidents as are other civil actions. It is of no moment in this case that the act penalized, which theretofore was declared unlawful and styled an offense, was by the statute of 1907 denominated a misdemeanor, for the purpose in that, as was explained in United States v. Stevenson, was merely to make clear the Government's alternative right to prosecute as for a crime. There was no purpose to revoke the existing right to resort to a civil action or to take from the action any of the usual incidents of a civil case. Indeed, a purpose to the contrary is shown by the reenactment, without change, of the provision authorizing the action. It not only specifies who shall have the civil right of recovery, but also the mode of its exercise and enforcement; for it declares that the penalty "may be sued for and recovered" by the United States, or by any person, including the alien, who shall first bring the action in his own name and for his own benefit, "as debts of like amount are now recovered in the courts of the United States." This plainly contemplates that the proceedings in the action are to be in conformity with the recognized mode of adjudicating and enforcing debts of like amount in those courts, and this whether the action be by the Government or by an individual. While the defendant was entitled to have the issues tried before a jury, this right did not arise from Article III of the Constitution or from the Sixth Amendment, for both relate to prosecutions which are strictly criminal in their nature (Counselman v. Hitchcock, 142 U.S. 547, 563; United States v. Zucker, 161 U.S. 475, 481; Callan v. Wilson, 127 U.S. 540, 549), but it did arise out of the fact that in a civil action of debt involving more than twenty dollars a jury trial is demandable. And while in a strictly criminal prosecution the jury may not return a verdict against the defendant unless the evidence establishes 48 his guilt beyond a reasonable doubt, in civil actions it is the duty of the jury to resolve the issues of fact according to a reasonable preponderance of the evidence, and this although they may involve a penalized or criminal act. So, in providing that the penalty may be sued for and recovered as debts of like amount are recovered, we think it was intended that a reasonable preponderance of the proof should be sufficient, that being one of the recognized incidents of an action of debt as well as of other civil actions. This is the view which other Federal courts have generally applied in the administration of statutes authorizing a civil recovery of such penalties. United States v. Brown, 24 Fed. Cas. 1248; 3880 Boxes of Opium v. United States, 23 Fed. Rep. 367; Hawloetz v. Kass, 25 Fed. Rep. 765; The Good Templar, 97 Fed. Rep. 651; United States v. Southern Pacific Co., 162 Fed. Rep. 412; New York Central & Hudson River Railroad Co. v. United States, 165 Fed. Rep. 833; United States v. Illinois Central Railroad Co., 170 Fed. Rep. 542; Atchison, Topeka & Santa Fe Railway Co. v. United States, 178 Fed. Rep. 12; St. Louis Southwestern Railway Co. v. United States, 183 Fed. Rep. 770. And such, also, is the prevalent course of decision in the state courts. 4 Wigmore on Evidence, § 2498; People v. Briggs, 114 N.Y. 56; State v. Chicago, Milwaukee & St. Paul Railway Co., 122 Iowa, 22; Hitchcock v. Munger, 15 N.H. 97; Sparta v. Lewis, 91 Tennessee, 370; O'Connell v. O'Leary, 145 Massachusetts, 311, 312; Munson v. Atwood, 30 Connecticut, 102; State v. Kansas City &c. Co., 70 Mo. App. 634; Deveaux v. Clemens, 17 Ohio C.C. 33; Semon v. People, 42 Michigan, 141; Walker v. State, 6 Blackf. 1; Roberge v. Burnham, 124 Massachusetts, 277. In the last case the Supreme Judicial Court of Massachusetts, in applying this measure of persuasion in an action for a penalty, said: 49 "The rule of evidence requiring proof beyond a reasonable doubt is generally applicable only in strictly criminal proceedings. It is founded upon the reason that a greater degree of probability should be required as a ground of judgment in criminal cases, which affect life or liberty, than may safely be adopted in cases where civil rights only are ascertained. 2 Russell on Crimes (7th Am. ed.), 727. It often happens that civil suits involve the proof of acts which expose the party to a criminal prosecution. Such are proceedings under the statute for the maintenance of bastard children, proceedings to obtain a divorce for adultery, actions for assaults, actions for criminal conversation or for seduction, and others which might be named. And in such actions, which are brought for the determination of civil rights, the general rule applicable to civil suits prevails, that proof by a reasonable preponderance of the evidence is sufficient." The cases upon which the defendant relies do not compel or lead to a different conclusion. While in United States v. The Brig Burdett, 9 Pet. 682, language was used giving color to the contention that in an action such as this the true measure of persuasion is that applied in criminal prosecutions, the court was careful in Lilienthal's Tobacco v. United States, 97 U.S. 237, to point out (pp. 266-267) the distinction in this regard between criminal prosecutions and civil cases, and to show (p. 272) that the case of The Burdett is not an authority for disregarding the distinction and that in an action to enforce a forfeiture the jury, if satisfied of the truth of the charge upon which the forfeiture depends, "may render a verdict for the Government, even though the proof falls short of what is required in a criminal case prosecuted by indictment." In Chaffee & Co. v. United States, 18 Wall. 516, the trial court, probably in deference to what was said in the case of The Burdett, had instructed the jury that proof beyond a reasonable doubt was essential to a recovery; but as the Government 50 had a verdict and judgment and was not in a position to assign error upon the instruction, the case hardly can be regarded as settling the propriety of such an instruction, especially as in Coffey v. United States, 116 U.S. 436, 443, thirteen years later, it was plainly assumed that in such actions the true measure of persuasion is not proof beyond a reasonable doubt but the preponderating weight of the evidence. The cases of Boyd v. United States, 116 U.S. 616, and Lees v. United States, 150 U.S. 476, are without present application, for they deal with the guaranty in the Fifth Amendment to the Constitution against compulsory self-incrimination, which, as this court has held, embraces proceedings to enforce penalties and forfeitures as well as criminal prosecutions and is of broader scope than are the guaranties in Article III and the Sixth Amendment governing trials in criminal prosecutions. Counselman v. Hitchcock, 142 U.S. 547, 563; United States v. Zucker, 161 U.S. 475, 481; Hepner v. United States, 213 U.S. 103, 112. See also Callan v. Wilson, 127 U.S. 540, 549; Schick v. United States, 195 U.S. 65, 68. We conclude that it was error to apply to this case the standard of persuasion applicable to criminal prosecutions; and the judgment is accordingly reversed, with a direction for a new trial. Judgment reversed.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/1554343/	26 So.3d 516 (2008) H.W. v. STATE. No. CR-07-1264. Court of Criminal Appeals of Alabama. May 14, 2008. Decision of the Alabama Court of Criminal Appeals Without Published Opinion Dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1300271/	691 S.E.2d 411 (2010) COUCOULAS/KNIGHT PROPERTIES, LLC v. TOWN OF HILLSBOROUGH, a North Carolina municipality, and its Board of Commissioners. No. 404A09. Supreme Court of North Carolina. April 15, 2010. Brown & Bunch, PLLC, by LeAnn Nease Brown, Chapel Hill, for plaintiff/petitioner-appellant. Brough Law Firm, by Robert E. Hornik, Jr., Chapel Hill, for defendant/respondent-appellees. PER CURIAM. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2406893/	26 F. Supp. 2d 240 (1998) Schlomo Daniel TOREN, Plaintiff, v. Rachael Elisabeth TOREN, Defendant. No. 98-11302-GAO. United States District Court, D. Massachusetts. October 21, 1998. 241 Gerald L. Nissenbaum, Nissenbaum Law Offices, Boston, MA, for Schlomo Daniel Toren. Scott P. Lewis, Jordana Glasgow, Palmer & Dodge, Boston, MA, Charles J. Bowser, Jr., W. Sanford Durland, III, Lee, Levine & Bowser LLP, Boston, MA, for Rachael Elisabeth Toren. 242 MEMORANDUM AND ORDER O'TOOLE, District Judge. Invoking the Court's jurisdiction under the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. §§ 11601-10, the plaintiff Schlomo Daniel Toren (the "Father") seeks an order from this Court requiring his former wife, the defendant Rachael Elisabeth Toren (the "Mother"), to return the parties' two minor children from Massachusetts, where she and the children presently reside, to Israel, where he resides. ICARA implements the terms of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the "Convention"), to which both the United States and Israel are signatory States. Because the Court concludes that the children were not "habitual residents" of Israel at the time of their allegedly wrongful retention in the United States by the Mother, neither the Convention nor ICARA applies. The Father's motion is therefore denied, and the action is dismissed. BACKGROUND The record presented by the parties establishes the following facts. The parties were married in Israel on August 22, 1988. Two children were born of their marriage: D'Vora, now eight years old, and Yael, now five. In December, 1994 the parties were divorced by a judgment of the Rabbinical District Court in Jerusalem. The divorce judgment incorporated the terms of the parties' separation agreement, which provided for joint legal custody of the children. The parties agreed, and the judgment ordered, that the children would reside in Israel for at least two years after the divorce. In 1996, the parties executed an amendment to their separation agreement that provided, among other things, that the children would live with the Mother in Massachusetts for a period of years, but not beyond July 21, 2000. The amended agreement further provided that the children would not stay in the United States or any other place outside of Israel after that date, and that they would study in Israel during the 2000-2001 school year. The amended agreement also specified the Father's visitation rights. On July 1, 1997, the Mother filed a complaint in the Massachusetts Probate and Family Court seeking to modify the parties' agreement (and the Israeli judgment) by eliminating the requirement that the children eventually return to Israel and instead allowing them to remain indefinitely in the United States. The Probate Court granted the Mother temporary legal and physical custody of the children. The Father has appeared in that action, and it remains pending. On July 6, 1998, the plaintiff filed the present complaint, seeking an order requiring the immediate return of D'Vora and Yael to Israel. He alleges that since July 8, 1997, the defendant has interfered with his rights of access to the children in violation of the orders of the Israeli court and the parties' own agreements and that this interference amounts to a "wrongful retention" of the children within the meaning of Article 3 of the Convention, entitling him to relief. ANALYSIS In brief, the Convention "is designed to restore the `factual' status quo which is unilaterally altered when a parent abducts a child and aims to protect the legal custody rights of the non-abducting parent." Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995). For purposes of the Convention, an abduction may occur either by a physical removal of a child from one country to another, or by a refusal to return a child who is temporarily away from its home. The latter circumstance, referred to as a "retention" of the child away from its residence, is what the plaintiff asserts occurred in this case. Under Article 3 of the Convention, the retention of a child is wrongful if it is in breach of the rights of custody attributable to a person under the law of the state in which the child was an "habitual resident" immediately before the removal or retention, and if the person was exercising (or attempting to exercise) those custody rights at the time of the retention. Hague Convention, Art. 3; see Wanninger v. Wanninger, 850 F. Supp. 78, 80-81 (D.Mass.1994). To demonstrate that the defendant's attempted retention of the children in the United States is wrongful, the plaintiff must first 243 show that the Mother is retaining the children away from their "habitual residence" in Israel, where the Father was exercising his legally conferred custodial rights. See Zuker v. Andrews, 2 F. Supp. 2d 134, 136 (D.Mass. 1998). See also Mozes v. Mozes, 19 F. Supp. 2d 1108, 1112-13, 1998 WL 514152, at 4 (C.D.Cal.1998). Accordingly, the first critical determination upon which the plaintiff's claim for relief depends is whether the children's "habitual residence" was in Israel at the time of the Mother's allegedly wrongful retention of them in Massachusetts. "[I]f the United States is the children's habitual residence, then they have not been wrongfully retained here and the protections of the Convention cannot be invoked. On the other hand, if Israel is the habitual residence of the children, then they may have been wrongfully removed, and the Court must continue its inquiry." Mozes, 19 F. Supp. 2d 1108, 1112-13, 1998 WL 514152, at 4. The plaintiff bears the burden of proof as to this issue. 42 U.S.C. § 11603(e)(1)(A). The Convention does not define "habitual residence." The courts that have considered the matter in the last few years have determined a child's habitual residence on the basis of the peculiar facts and circumstances of the case at hand. See Zuker, 2 F.Supp.2d at 137-38 (reviewing cases). Nevertheless, a consensus has emerged on some general principles. "Habitual residence" is not a technical term, like "domicile," Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993), and it should be understood as the child's "ordinary residence" at the relevant time. Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir.1995). Moreover, in determining a child's habitual residence, "the court must focus on the child, not the parents, and examine past experience, not future intentions." Friedrich, 983 F.2d at 1401. An English court, frequently cited in American decisions, has said that for a particular place of residence to be considered habitual, "[t]here must be a degree of settled purpose.... All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled." In re Bates, No. CA 122-89, High Court of Justice, Family Div'l Ct., slip op. at 10, Royal Courts of Justice, United Kingdom (1989). Whether a child's residence has become thus "settled" depends on "an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there." Feder, 63 F.3d at 224. Applying these considerations to this case, it is clear from the record before the Court that the children's habitual residence was in the United States at the time of the alleged wrongful retention. The children had been taken to this country in 1996 by the Mother in accordance with the parties' agreement. It was the expectation of both parents that the children would live in the United States for as long as four years. At the time the Mother filed her complaint in the Probate and Family Court to modify the custody arrangements, which is when the plaintiff contends the wrongful retention commenced, the children had been living here for approximately a year. During that time, they formed significant relationships here with other family members and with their peers. They also became "settled" in their community and its institutions, such as their school and synagogue. Both have apparently ongoing therapeutic relationships with medical professionals in the Boston area. It does not matter that the United States was not intended to be the children's permanent residence, nor that it was intended when they came here that they were to return to Israel in 2000. What may happen in the future ordinarily has little, if any, relevance to whether the children have become so "settled" in their place of residence that it may fairly be described, in the present but by reference to the past, as their "habitual" residence. "The court must look back in time, not forward." Friedrich, 983 F.2d at 1401. Because the children's habitual residence at the relevant time was in the United States, not Israel, the Father's claim of wrongful retention must fail. The protections of the Convention cannot be invoked; the plaintiff is not entitled to an order that the children be returned to Israel. See Mozes, 19 F. Supp. 2d 1108, 1116, 1998 WL 514152, at 8. There is an alternate route to the same conclusion. Under Article 12 of the *244 Convention, a child is not to be ordered returned if more than one year passed between the wrongful retention and the commencement of proceedings seeking return and the child "is now settled in its new environment." Those conditions are met here. The Mother acted to "retain" the children by filing the Probate Court action and obtaining an ex parte order granting temporary custody on July 1, 1997. This action was filed July 8, 1998, more than one year later. The plaintiff's argument that the date he learned of the Probate Court filing should be considered the date of the retention is unpersuasive. The language of the Convention is unambiguous, measuring the one-year period from the "date of the wrongful ... retention." Hague Convention, Art. 12. It might have provided that the period should be measured from the date the offended-against party learned or had notice of the wrongful retention, but it does not. That is not surprising, since the evident import of the provision is not so much to provide a potential plaintiff with a reasonable time to assert any claims, as a statute of limitation does, but rather to put some limit on the uprooting of a settled child. Thus, even in the unlikely event that the potential plaintiff had no notice of the wrongful retention until after a year had expired, it is the Convention's prescription that the child who is settled in a new environment ought not to be ordered returned under the Convention's auspices. Here, for the same reasons that the children are "settled" so that their "habitual residence" is Massachusetts, they are settled within the limitation on return imposed by Article 12. CONCLUSION For the reasons set forth above, the plaintiff's Motion for Preliminary Restraining Orders and Mandatory Orders is DENIED. In addition, because the protections of the Hague Convention cannot be invoked in these circumstances, the action is DISMISSED with prejudice. IT IS SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1920250/	180 Mich. App. 625 (1989) 447 N.W.2d 844 PEOPLE v. JONES Docket No. 112184. Michigan Court of Appeals. Decided October 16, 1989. Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Richard Thompson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Paul J. Fischer, Assistant Prosecuting Attorney, for the people. Paul M. Stoychoff, for defendant on appeal. Before: MICHAEL, J. KELLY, P.J., and SAWYER and CAVANAGH, JJ. 627 SAWYER, J. Defendant pled guilty to delivery of less than fifty grams of a controlled substance. MCL 333.7401(1) and (2)(a)(iv); MSA 14.15(7401)(1) and (2)(a)(iv). He was sentenced upon his conviction to serve a term of two to twenty years in prison. He now appeals and we affirm. Defendant's plea of guilty was conditioned upon the reservation of his right to raise on appeal the question of the validity of a search and seizure. Briefly, a White Lake Township police officer, Randy Lingenfelter, received an anonymous tip that defendant was selling cocaine out of a party store that he owned. The informant described a wooden box with a smoked-glass top on a shelf in the back of a storage room in the party store. According to the informant, the box contained cocaine. The informant also indicated that cocaine and money from the sales of cocaine were sometimes kept in a metal box near the cash register. After receiving the tip, Lingenfelter contacted the Attorney General's office to confirm that he had the authority under the Liquor Control Act, MCL 436.1 et seq.; MSA 18.971 et seq., to search and inspect the party store. The assistant attorney general confirmed that he did, but cautioned him to obtain a warrant if at all possible to avoid any problems. Lingenfelter and other officers went to defendant's party store, known as "Bud's Party Store," and announced to defendant that they were carrying out a "liquor inspection." Defendant responded "fine" and showed Lingenfelter his liquor license which was posted on a wall behind the cash register. Lingenfelter then inspected the coolers, a storage room, and finally found the "beer room" to which the informant had referred. He found a box with a smoked-glass lid on a shelf in the room, as described by the informant. Lingenfelter asked 628 defendant to open the box and defendant refused. By this point, defendant had telephoned his attorney, who apparently advised defendant not to allow Lingenfelter to look into the box unless Lingenfelter had a warrant. Meanwhile, another officer found a metal box and a sawed-off shotgun behind the counter. Lingenfelter left officers Harris and Gravlin at the premises and went to obtain a search warrant for the metal and wooden boxes as well as the rooms and compartments of the store. A warrant was obtained and Lingenfelter returned to the store and served the warrant. He opened the wooden box, which contained marijuana, hashish, "a couple of pills," and paraphernalia. A miniature safe by the cash register was also opened and found to contain cash and approximately 115 pills. Additional pills were found in the cash register. Lingenfelter again returned to the beer room, and while looking around he noticed a plastic baggie jammed between the heat duct and the ceiling. The baggie contained numerous white packets, with the white packets containing a white powdery substance later determined to be cocaine. At the preliminary examination, defendant objected to a bindover, arguing that the evidence seized was based upon an illegal search. The examining magistrate agreed, and refused to bind defendant over for trial. In essence, the magistrate concluded that the search under the Liquor Control Act was a subterfuge and that any legitimate Liquor Control Act interest had been exhausted prior to obtaining the warrant. The people appealed and the circuit court reinstated the original charges and ordered that defendant be bound over for trial in circuit court. The court specifically held that the search warrant was validly issued and 629 that the officers seized evidence discovered in plain view. Defendant then entered his plea, conditioned upon being allowed to raise the legitimacy of the search and seizure on appeal. We believe that the validity of the search involved in the case at bar can be resolved by determining the scope of the authority of a police officer to search a licensed liquor establishment under the authority granted under the Liquor Control Act and that we need not determine the validity of the search warrant which was issued after the officers' initial investigation. MCL 436.7a(2); MSA 18.977(1)(2) provides as follows: A licensee shall make the licensed premises available for inspection and search by a commission investigator or law enforcement officer empowered to enforce the commission's rules and Act No. 8 of the Public Acts of the Extra Session of 1933, as amended, being sections 436.1 to 436.58 of the Michigan Compiled Laws during regular business hours or when the licensed premises are occupied by the licensee or a clerk, servant, agent, or employee of the licensee. Evidence of a violation discovered pursuant to this subsection may be seized and used in an administrative or court proceeding. Initially, it should be pointed out that defendant does not challenge the constitutionality of this statute. Nor does defendant argue that the police officers involved in this case were not authorized to conduct searches of licensed premises under the statute. That is, defendant does not challenge the authority of these officers to conduct without a warrant a search as authorized by the statute. Rather, defendant argues that the search exceeded 630 the scope of authority granted by the statute. We disagree.[1] Defendant directs our attention to MCL 436.7a(1); MSA 18.977(1)(1), which authorizes the Liquor Control Commission to make any investigation it considers proper in administering the Liquor Control Act and the rules promulgated pursuant to that act, and to MCL 436.7a(3); MSA 18.977(1)(3), which authorizes the commission or its agent to examine or copy the books, records, and papers of any person relative to a requirement of the act to which access is obtained pursuant to the act. In relying on the provisions of subsection 1 and subsection 3, defendant concludes that subsection 2 must be read as merely authorizing the commission to inspect the books and records of defendant. We disagree. Subsection 3 does authorize the inspection of books and records. Subsection 2 does not, by its terms, restrict itself to effectuating an inspection of those books and records. Rather, it very broadly authorizes the inspection and search of the premises. It does not restrict itself to authorizing an inspection and search of the premises for the books and records.[2] Rather, we conclude that MCL 436.7a(2); MSA 631 18.977(1)(2) authorizes, at a minimum, the search without a warrant of any licensed premises for the purpose of discovering any violation of the Liquor Control Act or the regulations promulgated pursuant to that act. With respect to whether the contraband constituted a violation of the Liquor Control Act or the regulations under that act, it does. 1985 AACS, R 436.1011(5) provides as follows: A licensee, or the clerk, servant, agent, or employee of the licensee, shall not do any of the following: * * (d) Allow the sale, possession, or consumption on the licensed premises of any controlled substances which are prohibited by Act No. 368 of the Public Acts of 1978, as amended, being § 333.1101 et seq. of the Michigan Compiled Laws. (e) Allow narcotics paraphernalia to be used, stored, exchanged, or sold on the licensed premises. See also 1985 AACS, R 436.1011(1) (prohibiting a licensee or his employee from engaging in any illegal occupation or illegal act on the licensed premises). Thus, since the presence of a controlled substance on the premises does constitute a violation under the liquor regulations, the officers were conducting a search for a violation under the act and, therefore, were acting within the scope of authority granted to them by the statute.[3] *632 Because we conclude that the search without a warrant of defendant's business premises was authorized under the statute, we need not determine whether the warrant was properly issued, since no warrant was even necessary.[4] For the above reasons, we affirm the decision of the circuit court. Affirmed. CAVANAGH, J., concurred. MICHAEL J. KELLY, P.J., concurred in result only. NOTES [1] We should note, however, that searches within the scope of the liquor statute would come under the so-called pervasively regulated industry doctrine as an exception to the warrant requirement. See Tallman v Dep't of Natural Resources, 421 Mich. 585; 365 NW2d 724 (1984). In Tallman, the Court established a seven-factor test for determining the legality of a search without a warrant of the premises in a licensed industry. However, we need not apply the Tallman test to the instant case since, as noted above, defendant does not challenge the validity of the statute, merely arguing that the officers exceeded the scope of the authority granted by the statute. [2] Indeed, the case relied upon by defendant, People v Barnes, 146 Mich. App. 37; 379 NW2d 464 (1985), is inapplicable to the case at bar. In Barnes, which dealt with the scrap metal industry, the authorities attempted to rely on a statutory provision which authorized the inspection of records and inventory by police officers during reasonable or established business hours. As noted above, the statute involved in this case is not so restrictive. [3] To the extent that defendant argues that we should draw a distinction based upon the apparent intent of the officers to enforce a criminal statute as opposed to merely citing defendant for a violation of the liquor regulations, we are unpersuaded that such a distinction should be drawn. It is not the officers' role to determine whether an individual should be criminally charged or merely face administrative actions against the liquor license. Where evidence is found, such as is the case here, which would support both a criminal charge and an administrative proceeding under the Liquor Control Act, it is the prosecuting attorney and the Liquor Control Commission who determine what action should be taken, not the individual police officer. Accordingly, it is immaterial whether the officers at the time of the search have a desire to see a suspect criminally charged for the act which is also a violation of the liquor regulations, even if that is the officers' primary motivation for conducting the search. It is sufficient that the officers were searching for evidence which, if found, would establish a violation under the liquor regulations. [4] We would, however, commend the officers' actions in restricting their initial search without a warrant to that which was necessary to confirm the informant's tip and in then seeking a warrant. It is always preferable for an officer to obtain a warrant, even though he might be justified in searching without a warrant. The officers certainly cannot be condemned for erring on the side of caution in deference to a person's right not to be subjected to a search without a warrant.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1620142/	955 So.2d 1182 (2007) STATE of Florida, Appellant, v. Curt CRAVEN, Appellee. No. 4D06-1774. District Court of Appeal of Florida, Fourth District. May 2, 2007. 1183 Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant. Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellee. TAYLOR, J. The state appeals an order discharging the defendant on speedy trial grounds. According to the state, the defendant's pro se notice of expiration of speedy trial and motion for discharge were nullities because the defendant was represented by counsel at the time they were filed, and their later adoption by defense counsel, if approved by the trial court, should become effective from the date of adoption, not from the date the pleadings were originally filed pro se by the defendant. We agree and reverse. The defendant was convicted of aggravated battery and misdemeanor battery following a jury trial. We reversed for a new trial based on an improper jury instruction and issued our mandate on September 16, 2005. On November 14, 2005, the defendant filed an application for criminal indigent status. On November 30, 2005, the defendant was declared indigent, and the public defender was appointed to represent him. On December 23, 2005, the defendant filed a pro se notice of expiration of speedy trial period. On January 12, 2006, he followed up with a motion to discharge. On March 3, 2006, the defendant filed a pro se emergency petition for writ of prohibition in this court. At that point, the public defender filed a motion in this court seeking to adopt the pro se emergency petition for writ of prohibition. We issued an order dismissing the petition "without prejudice to seek relief in the trial court in the event trial counsel adopts the trial court motion." On remand, after the public defender adopted the prior pro se pleadings, the trial court granted the motion to discharge. The court reasoned that because the defendant's motions were subsequently adopted by counsel, "he avoids treatment of his motions as legal nullities." Under the speedy trial rule, the state had ninety days from the issuance of our mandate within which to commence the defendant's new trial. Fla. R.Crim. P. 3.191(m) (2006). Ordinarily, when the time period has expired, the defendant files a Notice of Expiration of Speedy Trial Time, and the state then has a fifteen-day recapture period within which to bring the defendant to trial or face the defendant's discharge. Fla. R.Crim. P. 3.191(p) (2006). The problem in this case is that the defendant was represented by counsel when he filed his pro se notice of expiration and motion for discharge. Because the pro se pleadings did not unequivocally request the discharge of defendant's counsel, they were nullities, having no legal force or effect. Logan v. State, 846 So.2d 472, 476 (Fla.2003); Johnson v. State, 932 So.2d 1169, 1170 (Fla. 2d DCA 2006); Sams v. State, 849 So.2d 1172, 1174 (Fla. 3d DCA 2003); Lewis v. State, 766 So.2d 288, 289 (Fla. 4th DCA 2000); Thompson v. State, 615 So.2d 737, 741 (Fla. 1st DCA 1993). The defendant argues that because the state did not move to strike the pro se pleadings, they were not nullities. We reject this argument, which is unsupported by any authority. Such pleadings are nullities without regard to whether a motion to strike was filed. 1184 In some situations, defense counsel can adopt and proceed to argue his client's pro se filings. The question is whether the adoption of a pro se filing of speedy trial pleadings can "relate back" in time so as to entitle a defendant to discharge. We can find no Florida case directly on point. In Kidd v. State, 855 So.2d 1165, 1167 (Fla. 5th DCA 2003), which the trial court cited in its order of discharge, the defendant filed a pro se motion for a new trial based on improper comment by the prosecutor and a pro se motion to correct his sentence because of an improper sexual predator designation. Defense counsel adopted the pro se motion for a new trial and argued it at the sentencing/motions hearing. The trial court considered the adopted motion on the merits and the appellate court determined that the issue was preserved for review. However, because the opinion in Kidd did not indicate whether the hearing was held within the ten-day period permitted for new trial motions or note any timeliness or relation-back concerns, we do not know whether the court applied a relation-back theory in declining to treat the defendant's motion as a nullity. In any event, we disapprove allowing defense counsel's attempted relation-back of the defendant's pro se speedy trial pleadings in this case. To allow such a relation-back would swallow the "nullity" rule by forcing the state to respond to a pro se "Notice of Expiration of Speedy Trial Period" as if it had been filed by counsel or risk losing the 15-day recapture period provided by the criminal procedure rules. We agree with the state that in this case defense counsel should not be allowed to adopt the defendant's pro se speedy trial pleadings so as to completely defeat the state's entitlement to the recapture period. We hold that in the context of pro se speedy trial pleadings, if the trial court permits defense counsel to adopt the pro se pleadings, the effective date should be the actual date of adoption, not the date on which the unauthorized pleadings were filed. This will give the state an opportunity to bring the defendant to trial within the fifteen-day window and allow the defendant to enjoy his right to a speedy trial. Reversed and Remanded. SHAHOOD and GROSS, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618310/	38 So.3d 1 (2009) Billie B. LINE, Jr. v. Tranquilino Ryan VENTURA and Hartford Fire Insurance Company. 1070736. Supreme Court of Alabama. May 22, 2009. Rehearing Denied November 13, 2009. 3 Gary K. Grace, L. Ann Grace, and Jennifer M. Matthews, Huntsville, for appellant. Frank M. Wilson, Montgomery; and Robert R. Hembree, Guntersville, for appellee Tranquilino Ryan Ventura. Richard E. Smith and Deborah Alley Smith of Christian & Small, LLP, Birmingham, for appellee Hartford Fire Insurance Company. COBB, Chief Justice. On December 1, 2003, Tranquilino Ryan Ventura[1] sued Billie B. Line, Jr.; Hartford Fire Insurance Company; Edward D. Jones & Co., L.P., d/b/a Edward Jones; Robert (Bobby) Decker; Morgan Stanley Dean Witter & Company; Dean Witter Reynolds, Inc.; and Hunter S. Brown on claims arising from the loss of funds in a conservatorship established for his benefit. Edward Jones, Robert (Bobby) Decker, Morgan Stanley Dean Witter & Company, Dean Witter Reynolds, Inc., and Hunter S. Brown (hereinafter referred to collectively as "the brokerage group") were eventually dismissed from the action by orders requiring arbitration; they are not parties in this appeal. Ventura asserted claims of negligence, wantonness, and breach of fiduciary duty against Line and Hartford; he also asserted a claim of legal malpractice against Line and a claim of breach of contract against Hartford. During the ensuing pretrial proceedings, Hartford filed a cross-claim against Line, asserting claims of breach of fiduciary duty, indemnity, and contribution arising from the issuance of its bond insuring the fidelity of Ventura's conservatorship. On October 8, 2007, Ventura and Hartford agreed to a pro tanto settlement of their claims; the case proceeded to trial against Line with Hartford realigned as a plaintiff. Line moved for a judgment as a matter of law at the close of the plaintiffs' presentation of the evidence, and he renewed that motion at the close of all the evidence; both motions presented the rationale that the Alabama Legal Services Liability Act, Ala.Code 1975, § 6-5-570 et seq. ("the ALSLA"), was the only basis upon which the plaintiffs were entitled to relief. The trial court denied those motions. However, the trial court accepted Line's argument that Ventura was not Line's client and that Line had not performed legal services for Ventura so that Ventura had no standing to assert a legal-malpractice claim under the ALSLA. The claims presented to the jury were Ventura's claims of negligence, wantonness, and breach of fiduciary duty, and Hartford's breach-of-fiduciary-duty 4 and common-law indemnity claims, and the trial court instructed the jury on those claims. On October 19, 2007, the jury returned a verdict against Line and awarded compensatory damages of $200,000 and punitive damages of $550,000. The trial court entered a judgment on the verdict. Line filed postjudgment motions seeking a judgment as a matter of law or, in the alternative, a new trial.[2] Line also sought a remittitur of both the compensatory-damages and punitive-damages awards. After an evidentiary hearing and a consideration of the damages awards under Hammond v. City of Gadsden, 493 So.2d 1374 (Ala. 1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989), the trial court denied Line's postjudgment motions. Line appealed, arguing that, under the circumstances of this case, the ALSLA provides the only means for the plaintiffs to assert claims against him. Thus, he argues that the trial court erred in failing to apply the limitations period applicable to claims being asserted under the ALSLA and in failing to apply the ALSLA to its jury charges, to Line's motion for a new trial, and to Line's motion for judgment as a matter of law. Line further argues that the trial court erred in submitting Hartford's claims of breach of fiduciary duty and indemnity to the jury. Line also argues that the trial court erred in refusing to remit the amount of punitive damages awarded against him. The Facts Ventura's mother, Patricia Dutton, hired Line, an Alabama lawyer, in November 1996 to establish a conservatorship over approximately $500,000 that Ventura, who was then 14 years old, had been awarded in a wrongful-death action arising from his father's death. Line prepared the petition for letters of conservatorship and filed them with the Marshall County Probate Court. Pursuant to Alabama law,[3] Dutton was required to obtain a bond to guarantee the performance of the conservatorship. Dutton obtained her personal insurance through the Tony King Insurance Agency, a local insurance agency, and, with Line providing assistance and information, she used that agency to apply for a surety bond from Hartford through The Bond Exchange, a broker for Hartford. Hartford presented evidence indicating that it routinely required that there be joint control over the expenditures of funds held in conservatorship for a minor as a prerequisite to issuing a bond so that it would have the protection of the combined judgment of the fiduciary and the "joint-control representative" that the expenditures were appropriate. Line agreed to become that joint-control representative, and on December 17, 1996, he and Dutton executed the form "Joint Control Agreement" supplied by Hartford. In pertinent part, that agreement provides: "By agreement between [Hartford] and the said fiduciary, no check, draft, or order for the payment on money drawn by said fiduciary shall be honored by Home Bank [the depository bank where the conservatorship funds were to be located] unless said check, draft, or order shall be countersigned or approved in writing by one of the Company Representatives designated below, or by such other persons as may hereafter be designated in writing by [Hartford]." 5 Line's signature is on the line designated as "Company Representative"; Dutton's signature is on the line designated as "fiduciary." Line testified that although he did not read the joint-control agreement completely, he understood at the time he signed it that he was assuming the responsibilities required of him in the agreement. After the joint-control agreement was executed, Line sent the completed documents to The Bond Exchange. Hartford subsequently agreed to issue a $500,000 surety bond for Dutton as Ventura's conservator. The plaintiffs also introduced a December 20, 1996, letter on Line's letterhead and signed by Line that had been sent to the Tony King Insurance Agency, which stated, in pertinent part: "Please be advised that the undersigned will, during the term of the Conservatorship and Guardianship of Tranquilio Ryan Ventura, be actively involved with the funds of said account. The undersigned will advise the Conservator and Guardian in the investment of the funds and will be a co-signor on all checks drawn on the account." Line testified that he was unaware of this letter and testified to the possibility that his secretary, Ellen Batt, had signed his name without his knowledge or authority. He was also unable to state whether the letter had been included with the other materials that had been sent to The Bond Exchange. Batt testified that she had no knowledge of the letter to the Tony King Agency and further stated that she had never signed a letter on Line's behalf without his specific authority. Line admitted that a copy of the December 20, 1996, letter had been produced from his files on the conservatorship. After a hearing at which Line was present, the probate court appointed Dutton as Ventura's guardian and conservator by an order dated December 23, 1996. The probate court's order granting the petition for conservatorship includes the probate judge's handwritten notation instructing Dutton to file an additional bond in the amount of $120,000 within 60 days of the execution of the order. Although Line testified that he told Dutton to obtain the additional bond, no additional bond was ever provided. Line did not inform the probate court of the omission. The plaintiffs also introduced a December 26, 1996, letter from Home Bank to Hartford regarding the creation of the conservatorship account and containing the notation that copies were also sent to Line and Dutton. That letter stated, in pertinent part: "According to the joint control agreement, Hartford Fire Insurance Company has designated Mr. Billie B. Line, Jr. as its representative as relates to the above referenced fiduciary account. Mr. Line will be the only representative of the Hartford which Home Bank will recognize without notification from the Hartford. Mr. Line must authorize all transactions, in writing, as relates to the above fiduciary account." The evidence indicates that thereafter Line signed 2 or 3 groups of between 25 and 50 blank checks on the conservatorship's account, which he made available to Dutton. He testified that every check he remembered signing for the conservatorship was blank, even though he understood that he was obligated to review and approve every expenditure Dutton made from the conservatorship funds. The evidence also showed that Line was involved with the conservatorship account to the extent of borrowing $5,000 to help purchase a house in Reno, Nevada. He testified that he and Dutton later agreed that $5,000 would be a fee for his services to the conservatorship, and he further testified that he also received approximately 6 $4,000 more in conservatorship funds as fees for facilitating some of Dutton's investments. Apart from these transactions, Line testified, he was not involved in the management of the funds. During the course of the conservatorship, Dutton used the funds to purchase polo lessons and a polo pony for Ventura and later to purchase a BMW automobile for his 16th birthday. She also purchased a house and obligated the conservatorship on the related note and mortgage, loaned $120,000 to a revocable trust established by Ventura's grandparents and invested in a number of schemes, including "floor planning" car sales and mobile-home purchases and rentals. She also provided funds in excess of $350,000 to the brokerage group, without any instruction as to the nature of the investment or the degree of risk that would be acceptable. Dutton's investments were unsuccessful, and the brokerage group lost substantial portions of the funds Dutton had provided it. Although the probate court scheduled an interim accounting in 1998, Line moved to continue the hearing on the accounting and to have the guardian ad litem removed. The probate court subsequently denied Line's motion, but Line testified that he did not receive any such order, and he did not appear for the hearing on the date specified. No interim accounting of the conservatorship was ever provided. By the time Ventura reached the age of majority in 2001, the conservatorship funds were effectively exhausted. However, when Ventura questioned Dutton about the funds, she was able to delay his discovery of that fact until Christmas season 2002 by stating that the documents for the funds had not been completed. Before that time, she instructed Line to close the conservatorship, and he prepared a petition to discharge Dutton of her conservatorship duties, which stated that she had "made a full and final settlement with [Ventura] and ha[d] paid over to [Ventura] all of the assets of said estate...." Line also sent a copy of the petition to Ventura for his signature, which he understood needed to be completed as a prerequisite to his receiving the conservatorship funds. Ventura signed and returned the petition, and Line filed the documents with the probate court, which entered an order on July 22, 2002, settling the conservatorship. When Ventura discovered that the conservatorship funds were depleted, he sought legal counsel and began proceedings that resulted in the probate court's setting aside its July 22, 2002, order settling the conservatorship. The probate court ultimately found that the operation of the conservatorship constituted a fraud upon the court and upon Ventura and entered a judgment against Dutton, as conservator, and in favor of Ventura in the amount of $741,563. Hartford was required to pay the full amount of its surety bond, and Ventura proceeded with the instant action in the Marshall Circuit Court. At trial, Ventura presented expert testimony from Jeff McLaughlin, a state legislator and lawyer who had been involved in numerous conservatorship proceedings, both as a conservator and as an attorney providing legal services for a conservator. McLaughlin testified that Dutton's purchase of, among other things, a polo pony and the BMW automobile were inappropriate expenditures of conservatorship funds. McLaughlin also testified that Dutton's investments were inappropriate, because, with the exception of the purchase of a house, Dutton had not selected legally appropriate investments, nor had she sought the approval of the probate court for her investments of conservatorship funds. McLaughlin also testified that Line assumed fiduciary duties to Hartford and Ventura that were distinct from the duties 7 he owed Dutton as her attorney in forming the conservatorship. McLaughlin testified that it was not part of Line's duty as Dutton's attorney to countersign checks or to be involved in managing conservatorship funds. However, McLaughlin testified that Line's execution of the joint-control agreement obligated him as an additional fiduciary to protect the conservatorship funds and Hartford's interest as surety. McLaughlin further testified that Line's December 20, 1996, letter to the Tony King Insurance Agency showed that Line recognized his additional fiduciary duties. Finally, McLaughlin testified that Line's actions in signing blank checks on the conservatorship's account, accepting loans from conservatorship funds, and generally failing to review any of Dutton's expenditures of conservatorship funds were all breaches of his fiduciary duties to Ventura and Hartford. With respect to Line's actions as the attorney for the conservatorship, McLaughlin testified that Line's services fell below the standard of care required by the ALSLA. McLaughlin further testified, however, that Ventura's and Hartford's claims against Line would not fall under the ALSLA, but would be based on Line's breaches of his fiduciary duty to them. McLaughlin's testimony indicated his opinion that Line did not represent Ventura and did not provide legal services to him, nor was Line engaged in providing legal services in acting as a fiduciary or "company representative" on the bond issued by Hartford. Ventura and Hartford also presented expert testimony from a certified public accountant concerning the current value of the conservatorship funds had they been properly managed. That evidence indicated that even subtracting approved expenditures from the conservatorship funds, simply investing the remaining funds in certificates of deposits over the term of the conservatorship would have resulted in a value of more than $920,000. Ventura also testified as to his mental anguish that resulted from learning about the loss of the conservatorship funds and the deterioration of his relationship with his mother as a result of her handling of the conservatorship. The Application of the ALSLA The central tenet of Line's argument in this appeal is that the ALSLA provides the only avenue by which Ventura and Hartford can seek relief and that, because he did not represent either Ventura or Hartford, this avenue is unavailable to them. He asserts that this is because the depletion of the funds in the conservatorship was related to his legal work for Dutton in creating the conservatorship and in furtherance of the legal services he provided to her. Thus, he argues, the plaintiffs failed to satisfy the procedural and substantive prerequisites for establishing a claim under the ALSLA and the trial court erred in denying his motion for a judgment as a matter of law. This Court's standard for reviewing the trial court's ruling on this point is well settled: "When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala. 1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present `substantial evidence' in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. 8 Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992). "Furthermore, a jury verdict is presumed to be correct, and that presumption is strengthened by the trial court's denial of a motion for a new trial. Cobb v. MacMillan Bloedel, Inc., 604 So.2d 344 (Ala.1992). In reviewing a jury verdict, an appellate court must consider the evidence in the light most favorable to the prevailing party, and it will set aside the verdict only if it is plainly and palpably wrong. Id." Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala.1999). Line argues that, even though neither Ventura nor Hartford was his client, their claims are related to the fact that he provided legal services to Dutton in creating the conservatorship. Line relies on the statements in the ALSLA to the effect that the ALSLA is intended to be a complete approach to claims against legal-service providers. In light of these statutory provisions, Line says, the plaintiffs' claims, which are related to the depletion of the funds in the conservatorship he created as a legal-service provider, can be asserted only in the context of the "complete and unified approach" of the ALSLA. This Court has addressed the language of the intended scope of the ALSLA and the extent to which the ALSLA is applicable to third-party nonclients in two cases that are of particular importance here, Cunningham v. Langston, Frazer, Sweet & Freese, P.A., 727 So.2d 800 (Ala.1999), and Fogarty v. Parker, Poe, Adams & Bernstein, L.L.P., 961 So.2d 784 (Ala.2006). In Cunningham, the Court considered Cunningham's action against Langston, Frazer, Sweet & Freese, P.A., a law firm ("Langston Frazer"), asserting claims of breach of contract, negligence, and wantonness. Cunningham was a lawyer who alleged that Langston Frazer had breached its arrangement with him concerning a fee-sharing agreement with regard to the firm's representation of clients in a class-action lawsuit. The trial court dismissed Cunningham's action against Langston Frazer, and Cunningham appealed. On appeal, this Court considered Langston Frazer's argument that Cunningham's claims could be asserted only under the ALSLA and that the action had been properly dismissed as untimely under the limitations period in the ALSLA. Cunningham argued that his claims should be considered under general principles of contract and tort law. In its analysis, the Cunningham Court first noted the statement in the ALSLA that "`[t]here shall be only one form and cause of action against legal service providers in courts in the State of Alabama....'" Ala.Code 1975, § 6-5-573, 727 So.2d at 802, and then set out the definitions of "legal service liability action" and "legal service provider" as provided in Ala. Code 1975, § 6-5-572(1) and (2).[4] In considering 9 those definitions and their application to Cunningham's claims, the Court stated: "The language of the ALSLA makes it clear that that Act refers to actions against `legal service providers' alleging breaches of their duties in providing legal services. Conversely, from a plaintiff's perspective, the ALSLA applies to any claim originating from his receipt of legal services." 727 So.2d at 803. As illustrations of the emphasis on the requirement that an action brought under the ALSLA arise out of the provision of legal services, the Court discussed the standard of care required by the ALSLA and noted that the standard was directly associated with the legal matter that was the basis of the legal services provided. The Court also considered the effect of the statement of the legislature's intent in § 6-5-570 in the following discussion: "It is apparent that the legislature was centrally concerned with the threat posed by `legal actions against Alabama legal service providers.' The question is whether the legislature meant by that phrase any lawsuit against any attorney for whatever cause of action, or meant lawsuits alleging legal malpractice against attorneys. For example, was the legislature responding to the threat of legal actions against attorneys in regard to such things as a law firm's contracting to have a drink machine placed in its office but then failing to pay in accordance with its contract; an attorney's involvement in a motor-vehicle accident; or an attorney's dispute with his neighbor over a landline? These situations commonly give rise to lawsuits, but the disputes presented in those lawsuits would exist regardless of the one party's status as a `legal service provider' and would have no special relation to that status. It is clear from the language of the legislature's statement of intent that by enacting the ALSLA the legislature was attempting to provide a unified approach to those `legal actions against legal service providers' that, if abused, could threaten `the delivery of legal service to the people of Alabama and ... the quality of legal services which should be made available to the citizens of this state' by forcing citizens to pay increased costs for legal services and decreasing the availability of those services. See Ala.Code 1975, § 6-5-570. Those `legal actions' the legislature was concerned about are, of course, actions against attorneys in their professional 10 capacities; the legislature made this point evident in its statement of intent: "`In addition, this legislature finds that legal service providers are experiencing great and increasing difficulties in obtaining professional liability insurance and that there is a great and rapid increase in the cost of professional liability insurance. This legislature finds that both the availability and the cost of professional liability insurance [are] in direct consequence to the threat of legal actions against Alabama legal service providers.' "Ala.Code 1975, § 6-5-570 (emphasis added). Therefore, we conclude, from the language of the statute, that the ALSLA does not apply to an action filed against a `legal service provider' by someone whose claim does not arise out of the receipt of legal services." 727 So.2d at 804. The Court in Cunningham noted further that its analysis was consistent with results in earlier cases and concluded: "Because the ALSLA applies only to lawsuits based on the relationship between `legal service providers' and those who have received legal services, the provisions of that Act, including its statute of limitations, do not apply to Cunningham's claims against Langston Frazer." 727 So.2d at 805. Accordingly, the Court held that Cunningham's claims were not required to be presented under the ALSLA nor subject to the limitations period in the ALSLA, and it reversed the trial court's judgment of dismissal. In Fogarty, the Court considered claims by South Carolina investors, the Fogartys, against the North Carolina law firm of Parker, Poe, Adams, and Bernstein, L.L.P., and certain lawyers who were members of that firm ("Parker Poe"). The claims arose from the depletion of the Fogartys' investments in a real-estate venture involving property in Gulf Shores, Alabama. The Fogartys asserted that Parker Poe committed numerous fraudulent and tortious actions in preventing the Fogartys' access to investment records, and they sought compensatory damages on theories of breach of fiduciary duty, among other things. Parker Poe moved to dismiss the Fogartys' claims on the ground that the Fogartys were not Parker Poe's clients and therefore had no claim under the ALSLA and that, because the Fogartys' claims arose out of Parker Poe's rendition of legal services, the ALSLA was the only remedy available to the Fogartys. The trial court granted Parker Poe's motion to dismiss, and the Fogartys appealed. With respect to Parker Poe's argument that the ALSLA provided the Fogartys' only means for relief, the Court stated: "First, Parker Poe alleges that the motion to dismiss for failure to state a claim was properly granted because, it argues, all of the claims alleged in the complaint arise solely out of the rendition of legal services by Parker Poe, and the exclusive remedy for such claims is the ALSLA, and the Fogartys make no claim under the ALSLA in the complaint. We disagree with Parker Poe's assertion that the ALSLA is the exclusive remedy for the Fogartys' claims against it. The ALSLA applies only to allegations of legal malpractice, i.e., claims against legal-service providers that arise from the performance of legal services, and only to allegations against attorneys licensed to practice law in the State of Alabama. Thus, it does not apply to Parker Poe in the present case." 961 So.2d at 788-89. The Court based its conclusion on the holding in Cunningham, supra, that the ALSLA is inapplicable to a 11 claim against a legal-service provider that "`does not arise out of the receipt of legal services.'" 961 So.2d at 789 (quoting Cunningham, 727 So.2d at 804 (emphasis added in Fogarty)). Accordingly, the Court held that the trial court erred in dismissing the Fogartys' claims on the rationale that the ALSLA governed their claims. Although Line argues that the holdings in Fogarty and Cunningham create confusion as to the concept of the ALSLA as the sole source of relief for claims against legal-service providers and claims brought by "third party non-clients," we perceive no such confusion. We conclude that those cases hold that the ALSLA applies only to claims against legal-service providers arising out of the provision of legal services. See also Robinson v. Benton, 842 So.2d 631 (Ala.2002) (devisee of a will had no standing to bring an ALSLA claim against the lawyer who drafted the will because the parties were never in an attorney-client relationship), and Smith v. Math, 984 So.2d 1179 (Ala. Civ.App.2007) (plaintiff's claims against lawyer for filing multiple judgments against plaintiff were not governed by the ALSLA because the plaintiff was not the lawyer's client). Under the circumstances of this case, the evidence is effectively uncontroverted that neither Ventura nor Hartford was Line's client, and Line provided legal services to neither. Accordingly, the ALSLA has no application to Ventura's and Hartford's claims against Line. Moreover, the record strongly supports the inference that Line undertook an entirely separate fiduciary obligation to Ventura and Hartford by explicitly agreeing to participate in the conservatorship by cosigning checks and being "actively involved" with the conservatorship funds. The evidence also strongly supports the inference that Line consciously disregarded his duty in this regard. Thus, the trial court properly permitted Ventura's claims of negligence, wantonness, and breach of fiduciary duty and Hartford's claims of indemnity and breach of fiduciary duty to go to the jury, and the trial court did not err in denying Line's motion for a judgment as a matter of law based on the application of the ALSLA. Because we conclude that the trial court was correct in refusing to apply the ALSLA to Ventura's and Hartford's claims, Line's arguments concerning the limitations period of the ALSLA[5] or any other aspect of the ALSLA in his arguments asserting error in the trial court's instructions to the jury and in his motion for a new trial must also fail. In the context of his argument concerning the applicability of the ALSLA, Line also argues that the trial court's instruction[6] to the jury regarding Line's actions as an attorney were sufficiently confusing as to require a new trial. Our examination of the record gives no indication 12 that Line objected to this instruction "with sufficient clarity or specificity to preserve the error." McElmurry v. Uniroyal, Inc., 531 So.2d 859 (Ala.1988). See also Kyle v. Selma Med. Ctr., 534 So.2d 589 (Ala.1988). Because Line's argument on this point was not preserved for our review, we do not consider it further. Hartford's Claims of Indemnity and Breach of Fiduciary Duty Line also argues that the trial court erred in permitting Hartford's claims of breach of fiduciary duty and indemnity to the jury. The record shows that Hartford did argue claims of breach of fiduciary duty and indemnity to the trial court, and those claims were presented to the jury. Although Line argues that Hartford took a different position before it entered into the pro tanto settlement with Ventura and became realigned as a plaintiff,[7] the critical question for our consideration is whether those claims were properly presented to the jury. The gist of Line's argument is that Hartford could have more explicitly designated Line as a fiduciary in the joint-control agreement and in any communication it had with Line. Thus, Line argues, Hartford presented insufficient evidence to permit submission of its breach-of-fiduciary-duty and indemnity claims to the jury. Our review of the jury's verdict is subject to a settled standard: "A jury's verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust. Crown Life Insurance Co. v. Smith, 657 So.2d 821 (Ala.1995). In addition, a judgment based upon a jury verdict and sustained by the denial of a postjudgment motion for a new trial will not be reversed unless it is plainly and palpably wrong. National Security Ins. Co. v. Donaldson, 664 So.2d 871 (Ala. 1995). Because the jury returned a verdict for the Phelpses, any disputed questions of fact must be resolved in their favor, and we must presume that the jury drew from the facts any reasonable inferences necessary to support its verdict. State Farm Auto. Ins. Co. v. Morris, 612 So.2d 440, 443 (Ala.1993). In short, in reviewing a judgment based upon a jury verdict, this Court must review the record in a light most favorable to the appellee. Liberty National Life Ins. Co. v. McAllister, 675 So.2d 1292 (Ala.1995)." Dempsey v. Phelps, 700 So.2d 1340, 1342 (Ala.1997). In considering whether Hartford presented sufficient evidence of a fiduciary relationship with Line to warrant submission of its claims to a jury, we consider how a fiduciary duty may be created. This Court has stated: "`[T]he [fiduciary] relation is not restricted to such confined relations as trustee and beneficiary, partners, principal and agent, guardian and ward, managing directors and corporation, etc. Davis v. Hamlin, 108 Ill. 39, 48 Am. Rep. 541[(1883)]; Cushing v. Danforth, 76 Me. 114; 32 Am.Jur. 835, Sec. 991[(1884)]; Probst v. Hughes, 143 Okl. 11, 286 P. 875, 878, 69 A.L.R. 929[(1930)]. It applies to all persons who occupy a position out of which the duty of good faith ought in equity and good conscience to arise. "It is the nature of the relation which is to be regarded, 13 and not the designation of the one filling the relation." Davis v. Hamlin, supra.'" Morgan Plan Co. v. Vellianitis, 270 Ala. 102, 105, 116 So.2d 600, 603 (1959) (quoting Risk v. Risher, 197 Miss. 155, 157, 19 So.2d 484, 486 (1944)). More recently, the Court defined a fiduciary relationship as follows: "[Such a] relationship is one in which "`"one person occupies toward another such a position of adviser or counselor as reasonably to inspire confidence that he will act in good faith for the other's interests, or when one person has gained the confidence of another and purports to act or advise with the other's interest in mind; where trust and confidence are reposed by one person in another who, as a result, gains an influence or superiority over the other; and it appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side, there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair advantage is possible. It arises in cases in which confidence is reposed and accepted, or influence acquired, and in all the variety of relations in which dominion may be exercised by one person over another."'" Bank of Red Bay v. King, 482 So.2d 274, 284 (Ala.1985) (quoting 15 C.J.S. Confidential (1967)). See also Power Equip. Co. v. First Alabama Bank, 585 So.2d 1291 (Ala. 1991). In this case, Line executed an agreement with Hartford in which he agreed to be Hartford's representative charged with the duty of cosigning checks issued by the conservatorship. Both his letter to the Tony King Insurance Agency and his testimony indicated that he understood that his duties were directed to the proper management of conservatorship funds for the benefit of Ventura and Hartford as the surety. The evidence was undisputed that these duties were distinct from any duties Line owed Dutton as her attorney. In the context of the fiduciary duty Line owed Hartford, the jury could also have found a duty to indemnify for damages resulting from Line's knowing or negligent failure to perform his duties. See, e.g., Ex parte Athens-Limestone Hosp., 858 So.2d 960 (Ala.2003); Alabama Kraft Co., a Div. of Georgia Kraft Co. v. Southeast Alabama Gas Dist., 569 So.2d 697 (Ala.1990); and American Southern Ins. Co. v. Dime Taxi Serv., Inc., 275 Ala. 51, 151 So.2d 783 (1963) (all standing for the general proposition that a principal is entitled to indemnification from its agent for damages caused by the agent's tortious conduct). We conclude that the evidence was sufficient to present Hartford's claims to the jury and to uphold the jury's verdict on that evidence. Dempsey, supra. The Punitive-Damages Award Finally, Line argues that the jury's punitive-damages award was excessive. He asserts that in Exxon Shipping Co. v. Baker, 554 U.S. ___, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008), the United States Supreme Court established a new constitutionally accepted ratio of punitive damages to compensatory damages of 0.65 to 1. We reject Line's argument in light of the Baker Court's explicit limitation of its holding to federal maritime common law. The appropriate standard for considering the excessiveness of the punitive-damages award is set out in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), and BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). At the outset, we note that the trial court held a hearing on the excessiveness of the damages awards 14 pursuant to this Court's holding in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986). In its order pursuant to that hearing, it considered the factors set out in Ala.Code 1975, § 6-11-23,[8]Gore, supra, and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989). In that portion of its order addressing posttrial motions directed to damages, the trial court found that evidence had been presented to show that Line's conduct exhibited reckless disregard of the rights of others. The trial court noted that Line's conduct resulted in the loss of Hartford's surety bond and in substantial losses in interest and earnings for the conservatorship funds. The trial court noted that although Line received approximately $10,000 in legal fees from Dutton, paid out of the conservatorship, he did not receive compensation as a fiduciary and noted that the fact that he did not profit from his conduct supported a reduction of the punitive-damages award. The trial court noted that Line's financial condition was poor and that he had no ability to pay the damages claims. However, the trial court noted that Line had insurance that might cover the damages awards and further noted that Line had testified that the damages awards would not affect his financial position.[9] Thus, the trial court concluded that the factors that Line's conduct was reprehensible and that the punitive-damages award would have no impact on him outweighed the fact that he did not profit from his disregard of his fiduciary duties. In concluding its discussion rejecting Line's motion for a remittitur of the punitive-damages award, the trial court also stated: "An award of a punitive damage award has two purposes: to punish the defendant before the court and to deter others similarly situated from such conduct in the future. This Court believes that the verdict of this jury can have an important impact on fiduciaries across this State and will hopefully make them more conscientious in dealing with minors' funds." We note that the actual compensation Ventura received in damages in this case is Hartford's $500,000 bond and the jury award of $200,000 in compensatory damages. Ventura presented evidence indicating that his economic losses were in excess of $900,000, an amount he would have received had the conservatorship funds been prudently managed by simply investing in certificates of deposit. We consider these facts and the facts set out in the trial *15 court's analysis in light of the "guideposts" set out by the United States Supreme Court for the assessment of punitive damages: "In [BMW of North America, Inc. v.] Gore, [517 U.S. 559 (1996),] the United States Supreme Court set out three `guideposts' for courts to look to when reviewing a punitive-damages award. Those guideposts, as most recently restated in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 1520, 155 L.Ed.2d 585 (2003), are as follows: `(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.' "Reprising its criteria for analysis of reprehensibility in Gore, the Campbell Court stated that to determine a defendant's reprehensibility`the most important indicium of the reasonableness of a punitive damages award'a court must consider `whether: the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm resulted from intentional malice, trickery, or deceit, or mere accident.' 538 U.S. at 419, 123 S.Ct. at 1521." Shiv-Ram, Inc. v. McCaleb, 892 So.2d 299, 316 (Ala.2003). The Court in Shiv-Ram also noted: "[W]e do not consider that the ratio between the punitive-damages award and the compensatory-damages award of slightly less than three to one is unreasonable. See AutoZone, [Inc. v. Leonard, 812 So.2d 1179, 1187 (Ala.2001)], approving a ratio of punitive damages to compensatory damages of 3.7:1, despite the fact that all of the $75,000 compensatory-damages award in excess of $3,000 necessarily related to mental anguish." 892 So.2d at 317. This case presents an example of a conscious disregard of fiduciary duty that resulted in financial losses to a minor who was certainly financially vulnerable. Those losses, and this controversy, were not a mere accident.[10] Under these circumstances we will not hold the trial court in error for refusing to grant the remittitur. The judgment is due to be affirmed. AFFIRMED. WOODALL, SMITH, PARKER, and SHAW, JJ., concur. NOTES [1] This party's name is also spelled "Tranquililino" and "Tranquilio" in the record. [2] Line's postjudgment motion to alter, amend, or vacate the judgment was granted to the extent that the trial court corrected an error in its judgment. [3] See, e.g., Ala.Code 1975, § 26-3-5. [4] Those Code sections provide: "(1) Legal service liability action. Any action against a legal service provider in which it is alleged that some injury or damage was caused in whole or in part by the legal service provider's violation of the standard of care applicable to a legal service provider. A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future. "(2) Legal service provider. Anyone licensed to practice law by the State of Alabama or engaged in the practice of law in the State of Alabama. The term legal service provider includes professional corporations, associations, and partnerships and the members of such professional corporations, associations, and partnerships and the persons, firms, or corporations either employed by or performing work or services for the benefit of such professional corporations, associations, and partnerships including, without limitation, law clerks, legal assistants, legal secretaries, investigators, paralegals, and couriers." [5] See, e.g., Sirote & Permutt, P.C. v. Bennett, 776 So.2d 40 (Ala.2000), noting the obvious that actions against legal-service providers are governed by the limitations period of ALSLA. [6] The language most directly challenged by Line in the trial court's instruction was as follows: "Therefore, I charge you that if you are reasonably satisfied that all of the actions taken by Billie Line were done as attorney in an attorney-client relationship, then you should find in favor of Billie Line and your deliberations should be over. If, on the other hand, you are reasonably satisfied that Billie Line undertook obligations or assumed a duty or duties by an implied contract, a contract, or other actions, then you should continue your deliberations and consider the following charges on Plaintiff Ventura's claims and Hartford's claims for negligence, wantonness, breach of fiduciary, breach of contract, and common-law indemnity." [7] Any sort of judicial estoppel or waiver in the context of a prior inconsistent argument is available only when an argument has been made by the parties involved and relied upon by the courts. See, e.g., Greene v. Jefferson County Comm'n, 13 So.3d 901 (Ala.2008) (discussing judicial estoppel), and Darnall v. Hughes, 17 So.3d 1201 (Ala.Civ.App.2008) (discussing principles of equitable estoppel). [8] Section 6-11-23(b) provides: "In all cases wherein a verdict for punitive damages is awarded, the trial court shall, upon motion of any party, either conduct hearings or receive additional evidence, or both, concerning the amount of punitive damages. Any relevant evidence, including but not limited to the economic impact of the verdict on the defendant or the plaintiff, the amount of compensatory damages awarded, whether or not the defendant has been guilty of the same or similar acts in the past, the nature and the extent of any effort the defendant made to remedy the wrong and the opportunity or lack of opportunity the plaintiff gave the defendant to remedy the wrong complained of shall be admissible; however, such information shall not be subject to discovery, unless otherwise discoverable, until after a verdict for punitive damages has been rendered. After such post verdict hearing the trial court shall independently (without any presumption that the award of punitive damages is correct) reassess the nature, extent, and economic impact of such an award of punitive damages, and reduce or increase the award if appropriate in light of all the evidence." [9] Line filed a petition for Chapter 7 bankruptcy on February 8, 2008. In re Debtors Billie B. Line, Jr., and Jan M. Tetrault-Line, Case No. 08-80307-JAC7 (U.S. Bankruptcy Court, N.D. Ala.). [10] Line also makes an argument that the award of punitive damages against him must be limited by the application of Ala.Code 1975, § 6-11-21(b), which provides: "Except as provided in subsection (d) and (j), in all civil actions where entitlement to punitive damages shall have been established under applicable law against a defendant who is a small business, no award of punitive damages shall exceed fifty thousand dollars ($50,000) or 10 percent of the business' net worth, whichever is greater." We reject this argument because, even if we were to hold that the operation of Line's legal practice was a "small business" within the ambit of the statute, it is plain from the record that the punitive-damages award was not related to the operation of Line's practice of law.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1920211/	447 N.W.2d 14 (1989) In the Matter of the WELFARE OF N.M.C. No. C8-89-663. Court of Appeals of Minnesota. October 24, 1989. Michael Stephan, Eric S. Rehm, Burnsville, for appellant. Cheryl Speeter Margoles, Speeter, Johnson, Hautman & Olson, Minneapolis, for Catholic Charities. Thomas J. Norby, Wright S. Walling, Mahoney, Walling & Kelley, Minneapolis, for Adoptive Parents. Heard, considered and decided by SCHUMACHER, P.J., and FORSBERG and GARDEBRING, JJ. OPINION FORSBERG, Judge. K.L.C. appeals dismissal of her petitions to set aside termination of her parental rights to her son, N.M.C. We affirm. FACTS Appellant gave birth to N.M.C. on May 11, 1988. She was 18 years old at the time and unmarried. After meeting with a social worker from respondent Catholic Charities of the Archdiocese of St. Paul and Minneapolis (Catholic Charities), appellant consented to placement of N.M.C. in a foster home. She visited him one hour per week for the next few months. She also met regularly with the social worker from Catholic Charities as part of a counseling program to help her explore the various options available to her. On July 29, 1988, Catholic Charities filed a petition for termination of parental rights. About a month later on August 30, appellant signed an Affidavit of Parental Consent in which she specifically consented to termination of her parental rights and acknowledged: This consent is executed of my own free will and accord and is not procured through any duress or under any influence or fraud. I give this consent believing it to be in the best interests of my child. A hearing to consider termination of appellant's parental rights was held on September 6 before a referee. The referee questioned appellant as follows about her decision: THE COURT: Now, this, obviously, is an important decision. If you would like 15 additional time, this hearing could be continued until another day to allow you time to talk with a lawyer or [the social worker from Catholic Charities] or anybody else or if you feel you need more time. On the other hand, if you feel that you do understand the finality of the order today terminating your parental rights, that it would be final, and wish to go ahead based on the fact that you have made up your mind, you may do that. Now, do you think you would like additional time or do you feel that you have made a final decision? [APPELLANT]: I feel I've made a firm and final decision. Upon further questioning, the referee determined that appellant understood the meaning of "termination of parental rights," that her decision was "final," and that she knew financial assistance was available if she chose to keep N.M.C. Finally, appellant responded affirmatively when asked if this was "your own decision without any improper pressures from anyone or offers of any kind from anyone?" Following the hearing, an order was issued terminating appellant's parental rights. Shortly thereafter, Catholic Charities was notified that the prospective adoptive couple whom appellant had selected from several profiles declined to adopt N.M.C. Appellant was allowed to choose another couple. In late September N.M.C. was placed with his adoptive parents, who are respondents in this appeal. On January 26, 1989, appellant filed a Petition to Set Aside Termination of Parental Rights. In the attached affidavit, she states she "realized I had made a mistake and wished to reverse my decision." She further explains that "[m]y parents and friends became more supportive" and "[t]hat I have the consent and support of my family to live at home with [N.M.C.] if I can get him back." At a hearing on February 2, Catholic Charities moved to dismiss the petition for failure to state a claim upon which relief may be granted. Appellant was given time to amend her petition. Appellant thereafter filed an Amended Petition to Set Aside Termination of Parental Rights. A second hearing was held on February 13. Catholic Charities again moved to dismiss. The parties were given additional time to file supporting memoranda. On March 15, the district court issued an order with attached memorandum dismissing the petitions. Appellant immediately filed a motion to reconsider, which was heard on March 16. Appellant appeared at this hearing and was given an opportunity to speak. In an order dated March 21, the court reaffirmed its March 15 order dismissing the petitions. This appeal followed. ISSUE Did the district court err in dismissing the petitions? ANALYSIS A termination order based upon the voluntary, informed consent of a parent cannot be set aside simply because that parent "has changed her mind or her circumstances have otherwise changed. Some serious and compelling reason must exist in order to once again uproot the child and dramatically change his living environment." In re Welfare of K.T., 327 N.W.2d 13, 18 (Minn.1982). Such an order can be set aside only upon a showing of fraud, duress, or undue influence. Id. at 17-18 (citing In re Welfare of J.M.S., 268 N.W.2d 424, 428 (Minn.1978)). Appellant argues the district court erred in dismissing her petition and amended petition without providing her an evidentiary hearing. She insists she is entitled to her "day in court" in order to present testimony on her claims of undue influence and duress. Respondents counter the petitions were properly dismissed because appellant failed to allege any facts in support of her claim that she was unduly influenced by Catholic Charities. Appellant's original petition contained no allegations of fraud, duress, or undue influence. 16 It merely states "the Affidavit of Parental Consent is faulty and did not allow [me] proper time to consider [my] decision and the effects of that decision." In a supporting affidavit, she states "I realized I had made a mistake and wished to reverse my decision" and "I believe I made an error when I signed the Consent." Other reasons cited in her petition were newfound support from family and friends, an alleged technical defect in the Affidavit of Parental Consent, and the failure of the originally selected couple to complete the adoption. These claims, which challenge the grounds for termination as opposed to the voluntariness of the consent, were each addressed and rejected by the district court in the memorandum attached to its March 15 order. We agree with the court's reasoning, which has not been challenged by appellant in this appeal. Appellant's amended petition does include the words "duress" and "undue influence." However, without supporting facts those words are conclusory and insufficient to withstand a motion to dismiss. "Duress" has been defined as "coercion by means of physical force or unlawful threats which destroys the victim's free will and compels him to comply with some demand of the party exerting the coercion." Wise v. Midtown Motors, Inc., 231 Minn. 46, 51, 42 N.W.2d 404, 407 (1950). There is nothing in the record here to suggest appellant was subjected to any physical force or unlawful threats. Indeed, during oral arguments before this court her attorney acknowledged this is not a case of duress. "Undue influence" means "coercion, amounting to a destruction of one's free will, by means of importunities, flatteries, insinuations, suggestions, arguments, or any artifice not amounting to duress." Sullivan v. Brown, 225 Minn. 524, 530, 31 N.W.2d 439, 443 (1948). Again, during oral arguments before this court, appellant's attorney acknowledged there was no loss of free will in this case. Instead, he argued what had been argued at the March 16 hearing: that this was an unusual case because appellant saw N.M.C. weekly after he had been placed in foster care, bonded with him, and exhibited ambivalence during this period. Appellant suggests there should have been a trial period during which she would have been prohibited from seeing N.M.C. However, Catholic Charities' policy of allowing appellant visitation with N.M.C. prior to termination of her parental rights cannot be characterized as undue influence. Appellant also contends a confidential relationship existed between her and Catholic Charities. As such, there may have been some conflict of interest inherent in Catholic Charities' role as the placement agency and as appellant's counselor. This argument was not raised below. See K.T., 327 N.W.2d at 16-17 ("[I]t is well settled that a party may not raise for the first time on a appeal a matter not presented to the court below"). Even if reviewable, appellant fails to provide any facts showing Catholic Charities' actions were improper. Appellant also argues had discovery been completed prior to dismissal of her petitions, she might have discovered facts to buttress her allegations of undue influence. By its nature, undue influence has a substantial subjective component. Appellant would necessarily know whether certain conduct by Catholic Charities interfered with her free will. She cannot now argue she needs discovery in order to uncover facts which more properly should have been asserted in her petitions. Finally, examination of the procedural history of this case illustrates appellant was given numerous opportunities to present any facts she might have to support her claims. At the September 9, 1988 hearing, the referee expressly asked her whether she understood the ramifications of her decision and whether anyone had exerted "improper pressures" on her. She was represented by her attorney at each of the three hearings held following the filing of her petitions. At one of those hearings she personally appeared and was given an opportunity to speak. She was given additional time to file written memoranda in support of her petitions; in none was she able to articulate facts to support her allegation of undue influence. *17 We fully agree with the sentiments expressed by the district court in the memorandum attached to its March 15 order dismissing the petitions: While this Court recognizes that a parent who loves her child as [appellant] obviously does, goes through great anxiety, stress and grief over a decision to give that child up for adoption, it is also possible that such emotions could be confused with undue influence and duress as a means of regaining that child when the natural parent changes her mind. If the courts were to always allow the argument that an individual was unduly influenced or placed under duress during an otherwise emotional decision to give up a child for adoption, the door of certainty and finality would never be closed and the best interests of the child could never be served. Our decision here effectively requires a parent seeking to set aside termination of parental rights to allege facts sufficient to show duress, undue influence, or fraud before a full evidentiary hearing will be held. As the adoptive parents note, application of such a rule to this case may (1) prevent the disruption of a child's life except where a party makes a prima facie showing of facts sufficient to justify such disruption and (2) preserve judicial resources by screening out cases where a parent seeks to revoke consent for inadequate reasons. DECISION Because appellant has failed to allege facts sufficient to support her claim of duress and undue influence, we affirm dismissal of her petitions to set aside termination of her parental rights. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1920216/	447 N.W.2d 267 (1989) STATE of North Dakota, Plaintiff and Appellee, v. Audrey E. NYGAARD, Defendant and Appellant. Cr. No. 880204. Supreme Court of North Dakota. October 24, 1989. Weiss, Wright & Paulson, Jamestown, for defendant and appellant; argued by Thomas E. Merrick. Richard R. Tessier, Asst. Atty. Gen., Atty. General's Office, Bismarck, for plaintiff and appellee. GIERKE, Justice. This is an appeal by Audrey E. Nygaard (Nygaard) from a judgment of conviction finding her guilty of the offense of failure to notify the owner upon striking an unattended vehicle in violation of Section 39-08-07 of the North Dakota Century Code, a class A misdemeanor. We affirm. At approximately 5 o'clock on the evening of December 30, 1986, Nygaard drove to Serb's Restaurant and Bar in Jamestown, North Dakota, to meet and discuss with the owner the possibility of getting a job. The vehicle Nygaard was driving was a 1974 brown and beige Plymouth Fury which was slightly damaged from an August 1986 accident. The owner of Serb's Restaurant and Bar was not there when Nygaard arrived so she left and went to visit her sister for about a half hour. Nygaard then returned to Serb's Restaurant and Bar and the owner still was not available. While waiting for the owner, Nygaard sat with a couple of friends and had a few drinks. The owner of Serb's Restaurant and Bar finally arrived and Nygaard did meet and talk to him about employment. Then, according to Nygaard, at approximately 8:45 that evening, she left Serb's Restaurant and Bar in her vehicle and proceeded to drive to the Dakota Inn where she planned to meet a few friends. While Nygaard was driving to the Dakota Inn on Fourth Avenue Southeast in 268 Jamestown, a small animal ran out onto the road in front of Nygaard's vehicle. In an attempt to avoid hitting the animal, Nygaard turned the steering wheel of her vehicle to the right and applied the brakes. After seeing that the animal was out of the way, Nygaard straightened the car out and stepped on the gas. At that time, she hit a patch of ice and the car swerved to the left. Nygaard thought she was going to hit two vehicles, a jeep and a van which were parked on opposite sides of the street. Nygaard hit the brakes and thought that she missed the jeep and stopped her vehicle six to ten inches away from the van. Nygaard then, without getting out of her vehicle to verify whether or not there was any contact with the jeep or the van, determined that she did not hit either of the two vehicles, backed her vehicle up and proceeded on to the Dakota Inn. James Casavant was traveling behind the Nygaard vehicle and witnessed the entire incident. Mr. Casavant stated that "[t]he car started going to the right side of the road. And it drifted to the right side of the road. And then right before it ran into this red jeep-type vehicle it looked like it realized that it did some wandering and it tried to swerve away. And it hooked the back taillight of that vehicle." Mr. Casavant also stated that "[t]he car kind of bounced off of the red jeep and then it crossed over. And to me it looked like it hit the van on the other side. There was a sudden stop. I didn't hear any crash or anything. But I assumed that it hit." Mr. Casavant stated that no one got out of the vehicle after it hit these two cars. Instead, the vehicle backed up and proceeded on down the road. Mr. Casavant continued to follow the vehicle until it turned into the Dakota Inn parking lot. Mr. Casavant memorized the license plate number and went into Dean's Family Restaurant and wrote down the license number. While Mr. Casavant was dialing the number to the police station, two police officers, Officer Finck and Officer Warren, entered Dean's Family Restaurant. Mr. Casavant hung up the phone and went up to the officers to report that he had just witnessed a hit and run traffic accident. After explaining the incident to the police officers, Mr. Casavant gave them the license plate number and informed them that the vehicle had entered the Dakota Inn parking lot. The officers radioed the incident to the police station. Another officer, Officer Caldwell, investigated the accident scene and verified that there were two vehicles, a red jeep and a blue van, out of position and that both vehicles had fresh damage to them. Officer Caldwell notified the owners of the jeep and the van, Ken and Wendy Schulz, that their vehicles had been involved in an accident. Officer Caldwell and the Schulzes went to look at the damage to the jeep and the van. Wendy reported that the damage sustained by the jeep was that "the whole taillight was ... ripped out ..., all of the rear parts that ... [were] covering... [the taillight were] ripped out and the taillight was just kind of hanging there on the wire and that rear fender was completely bashed in" and "pieces from the taillight and the brake light were all over the street." Wendy also stated that the damage to the van was that there was a real nice dent on the side panel of the van. The estimated damage to the jeep was $1,132.48 and to the van was $775.83.[1] The Schulzes also explained to Officer Caldwell that nobody contacted them about the damage to the vehicles nor were there any notes left on the vehicles. In the meantime, Officer Finck and Officer Warren proceeded to the Dakota Inn parking lot where they located the vehicle with the same license number and description provided by Mr. Casavant. The officers observed that there was no one in the vehicle and that there was a considerable amount of fresh damage to the front and the back right-hand side of the vehicle. After determining that the vehicle was registered to Nygaard, the officers entered the Dakota Inn to locate her. The officers obtained Nygaard's description from the clerk at the front desk. The officers located 269 Nygaard as she walked down a hallway of the Dakota Inn. The officers subsequently arrested Nygaard on the charge of driving while under the influence. A blood sample was taken and the test results came back with a blood alcohol content of .19% by weight. The officers questioned Nygaard about her vehicle and whether it had been in an accident that evening. Nygaard stated that she had not been involved in an accident and that she was the only one who had driven the vehicle that evening. The officers then brought Nygaard outside to her vehicle and inquired as to how the damage occurred. Nygaard stated that she did not know how the damage occurred and that she did not remember being in an accident. While examining Nygaard's vehicle, the officers observed that it had a smear of blue paint on the right front and a smear of red maroon paint on the back right-hand side. Officer Finck scraped off a sample of the red maroon paint smear from Nygaard's vehicle into an envelope and later determined that it matched the paint from the jeep. Officer Finck also determined in the course of preparing the accident investigation report that the damage to Nygaard's vehicle was consistent with the damage caused and inflicted to the two vehicles at the accident scene on Fourth Avenue. On January 5, 1988, Nygaard was charged with failing to stop and notify an owner upon striking an unattended vehicle in violation of Section 39-08-07 of the North Dakota Century Code. A jury trial was held on June 17, 1988. Nygaard testified to the effect that she did not hit the two vehicles and if she did, she had no knowledge of that fact. At the close of the trial, counsel for Nygaard requested that an excuse instruction based on lack of knowledge be given to the jury.[2] The trial court refused to give to the jury the requested instruction on excuse. The jury returned a guilty verdict and a judgment of conviction was entered.[3] Nygaard filed this appeal on June 27, 1988. Nygaard contends on appeal that lack of knowledge is a valid affirmative defense to the offense of failure to stop and notify an owner upon striking an unattended vehicle. Accordingly, Nygaard contends that the trial court erred in refusing to give to the jury the requested instruction on excuse. Nygaard therefore contends that the conviction should be reversed and the matter remanded for a new trial. In the instant case, Nygaard was charged and convicted of violating Section 39-08-07 of the North Dakota Century Code which provides as follows: "39-08-07. Duty upon striking unattended vehiclePenalty. The driver of any vehicle which collides with any vehicle which is unattended shall immediately stop and shall then and there either locate and notify the operator or owner of the vehicle of the name and address, as well as the name of the motor vehicle insurance policy carrier, of the driver and owner of the vehicle striking the unattended vehicle or shall leave in a conspicuous place in the vehicle struck a written notice giving the name and address, as well as the name of the motor vehicle insurance policy carrier, of the driver and of the owner of the vehicle doing the striking and a statement of the circumstances of the collision. Any person violating this section is guilty of a class A misdemeanor." Initially, we note that in State v. McDowell, 312 N.W.2d 301 (N.D.1981), cert. denied, 459 U.S. 981, 103 S.Ct. 318, 74 L.Ed.2d 294 (1982), this Court determined that it was proper for the Legislature to enact laws making the violation thereof a 270 matter of strict criminal liability without a culpability requirement. This Court also determined that it is consistent with the purposes of a regulatory statute to allow the imposition of a penalty for a violation of the offense without offending due process. State v. McDowell, supra. The United States Supreme Court, in Morissette v. United States, 342 U.S. 246, 255-256, 72 S.Ct. 240, 246, 96 L.Ed. 288, 296-297 (1952), observed as follows with regard to regulatory or public welfare offenses: "These ... [public welfare offenses] do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty.... While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime." In State v. Olson, 356 N.W.2d 110, 112 (N.D.1984), this Court reviewed the legislative history of Section 39-08-07 of the North Dakota Century Code to determine the intent of the Legislature: "Whether an offense is punishable without proof of intent, knowledge, willfulness, or negligence is a question of legislative intent to be determined by the language of the statute in connection with its manifest purpose and design. State v. Rippley, 319 N.W.2d 129 (N.D. 1982). Section 39-08-07 does not contain language requiring culpability. Our review of the legislative history behind Section 39-08-07 indicates that the Legislature enacted it without a culpability requirement. See 1955 N.D.Sess.Laws, Ch. 253, § 4. The legislative committee reports from 1953 to 1979 failed to make any mention of a culpability requirement. Section 39-08-07 has been substantively changed only twice since its enactment in 1955. In 1975, a penalty provision was added and in 1979 additional information was required to be given to the owner of the unattended vehicle. See 1975 N.D. Sess.Laws, Ch. 339, § 19; 1979 N.D.Sess. Laws, Ch. 421, § 2." "Section 12.1-02-02(2), N.D.C.C., provides `that if a statute defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the culpability that is required is that one commit the offense willfully.' State v. Bohl, 317 N.W.2d 790, 793 (N.D.1982). That culpability requirement, however, applies only to the offenses or crimes described in Title 12.1, N.D.C.C., and therefore does not apply to Section 39-08-07, N.D.C.C. City of Dickinson v. Mueller, 261 N.W.2d 787 (N.D.1977). Because Section 39-08-07 includes no culpability requirement the violation is a strict-liability offense, punishable without regard to intent, knowledge, willfulness, or negligence. State v. Bohl, supra; State v. Carpenter, 301 N.W.2d 106 (N.D.1980); State v. North Dakota Ed. Ass'n, 262 N.W.2d 731 (N.D.1978). Strict liability statutes in criminal law do not invariably violate constitutional requirements. `Thus, public welfare [statutes], i.e., regulatory 271 measures enacted by the legislature under the exercise of the police power, which dispensed with mental culpability requirements, have generally been upheld if the accused is in a position to prevent the offense with no more care than society might reasonably expect and the penalty provided is small.' State v. Carpenter, supra, 301 N.W.2d at 111, citing Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952)." Thus, this Court determined that Section 39-08-07 which includes no culpability requirement is a strict liability offense, punishable without regard to intent, knowledge, willfulness, or negligence. State v. Olson, supra. However, this Court recognized in State v. Olson, supra at 113, a general rule of criminal law that "a person cannot be held criminally responsible for acts committed, or for failure to perform acts while he is unconscious." Accordingly, this Court stated in State v. Olson, supra, that "[a]lthough we agree that Section 39-08-07 is a strict-liability statute, one cannot be guilty of failing to conform to the statutory requirement where he or she is unconscious or lacks the mental or physical ability to perform the required act." In the instant case, Nygaard does not argue that her failure to stop and give the statutorily required notice was because she was unconscious or lacked the mental or physical ability to perform the required act. Instead, as previously stated, Nygaard claims that an affirmative defense of excuse based on a mistaken belief that no collision occurred is applicable to prosecutions under Section 39-08-07, the strict liability offense of failing to stop after an accident and provide the required notice to the owner of the unattended vehicle. Recently, in State v. Michlitsch, 438 N.W.2d 175 (N.D.1989), this Court acknowledged the availability of an affirmative defense instruction in a prosecution under Section 19-03.1-23 of the North Dakota Century Code for the strict liability offenses of possession of controlled substances and possession with intent to deliver for which the violation of is punishable as a felony. However, State v. Michlitsch is distinguishable from the instant case because in that case we recognized that with regard to a strict liability offense, an affirmative defense based on a total lack of knowledge of the circumstances is different from an affirmative defense based on a mistaken belief which might, under the appropriate factual situation, warrant an instruction on justification or excuse. Accordingly, we do not believe that State v. Michlitsch is controlling with regard to the issue in the instant case. In State v. Fridley, 335 N.W.2d 785, 787 (N.D.1983), the defendant, in a prosecution under Section 39-06-42 of the North Dakota Century Code, a strict liability traffic offense which prohibits driving while your license is revoked, attempted to establish an excuse defense based upon a mistake of law. The trial court refused to give the requested jury instruction. State v. Fridley, supra. This Court determined that, as a matter of law, the mistake of law defense was not applicable to a strict liability traffic offense of driving while your license is revoked. State v. Fridley, supra at 790. This Court further determined that a defense of excuse, as set forth in Section 12.1-05-08 of the North Dakota Century Code, was equally inapplicable. State v. Fridley, supra; see also City of Mandan v. Willman, 439 N.W.2d 92, 94 (N.D.1989) (defense of excuse was inapplicable). The excuse defense asserted by Nygaard was based upon Section 12.1-05-08 of the North Dakota Century Code which provides as follows: "12.1-05-08. Excuse. A person's conduct is excused if he believes that the facts are such that his conduct is necessary and appropriate for any of the purposes which would establish a justification or excuse under this chapter, even though his belief is mistaken. However, if his belief is negligently or recklessly held, it is not an excuse in a prosecution for an offense for which negligence or recklessness, as the case may be, suffices to establish culpability. Excuse under this section is a defense or affirmative *272 defense according to which type of defense would be established had the facts been as the person believed them to be." Thus, if the circumstances are such that a person's conduct is necessary and appropriate for any purpose which would establish a justification or excuse recognized in Chapter 12.1-05, then that person's conduct may be excused. Section 12.1-05-08, N.D. C.C. In the instant case, Nygaard mistakenly believed that no collision occurred. In view of the circumstances of this case, we do not believe that Nygaard's conduct could be "necessary and appropriate for any of the purposes which would establish a justification or excuse under ... [Chapter 12.1-05, N.D.C.C.]". Section 12.1-05-08, N.D.C.C.; State v. Fridley, supra. Furthermore, under Section 12.1-05-08, if the "belief is negligently or recklessly held, it is not an excuse in a prosecution for an offense for which negligence or recklessness, as the case may be, suffices to establish culpability." Because, as stated in State v. Olson, supra, Section 39-08-07 is a strict liability offense, negligence or recklessness is more than sufficient to establish culpability. We believe, under the facts of the instant case, that Nygaard was at least negligent in not stopping to determine whether or not she had in fact struck another vehicle. Accordingly, we do not believe that the defense of excuse based on lack of knowledge is applicable to prosecution under Section 39-08-07 of the North Dakota Century Code. Therefore, we conclude the trial court's denial of Nygaard's requested instruction on excuse did not constitute error. For the reasons stated in this opinion, the verdict of the jury and the judgment of conviction of the county court are affirmed. ERICKSTAD, C.J., and VANDE WALLE, MESCHKE and LEVINE, JJ., concur. NOTES [1] The actual repair bill for the jeep was $1,138.78 and the actual repair cost for the van was $395.60 resulting in $1,534.38 of total damage to the two vehicles. [2] The excuse instruction as requested by Nygaard read: "EXCUSE AS A DEFENSE "A person's conduct is excused if he believes that the facts are such that his conduct is necessary and appropriate, even though his belief is mistaken." [3] Nygaard was fined $400.00 and sentenced to serve 30 days in jail with 26 days of the sentence suspended for a period of one year under certain conditions.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3765748/	I concur that the second cause of action in the petition was not disposed of, either by proper pleading or evidence, and that the order dismissing Page 282 it was error and should be reversed. That cause being pending as an equitable issue, the damage to the land itself as alleged in the second supplemental petition was incidental to that pending cause of action and such issue should be disposed of as a part of it. It was a cause of action for damage to the land resulting from a continuing and permanent nuisance. It was separate and different from the damage that arose from the loss of growing crops and timber. It required different evidence to prove it and a different measure of damages. The two causes were analogous in principle to the two causes of action of injuries to person and damage to property, which may be caused by the same tortious act. Paragraph four of the syllabus, Vasu v. Kohlers, Inc.,145 Ohio St. 321, 61 N.E.2d 707. Also, relief of this character in an equitable action is such as is demanded by the nature of the case and the facts as they exist at the close of the litigation. Oliver v. City ofCincinnati, 12 Ohio App. 432 (motion to certify overruled);Antol v. Dayton Malleable Iron Co., 34 Ohio Law Abs., 495, 38 N.E.2d 100. I would reverse the order dismissing the second supplemental petition as to that item of damages. Page 283	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/2587996/	205 P.3d 103 (2009) BLACKETT v. DEERBROOK INS. CO. No. 20080915. Supreme Court of Utah. January 7, 2009. Petition for certiorari denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/462788/	780 F.2d 1015 Moses, Appeal of 85-1238 United States Court of Appeals,Third Circuit. 11/29/85 E.D.Pa., Kelly, J., 1 --- F.Supp. ---- AFFIRMED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2588024/	205 P.3d 101 (2009) 226 Or. App. 603 CAPITAL ONE BANK v. STAFFORD. Court of Appeals of Oregon. March 11, 2009. Affirmed without opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1920170/	246 Pa. Super. 287 (1976) 369 A.2d 1325 COMMONWEALTH of Pennsylvania ex rel. Robert REYES, Appellant, v. Louis AYTCH, Superintendent Philadelphia County Prison. Superior Court of Pennsylvania. Submitted April 2, 1976. Decided November 22, 1976. 289 John W. Packel, Assistant Public Defender, Philadelphia, for appellant. Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee. Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. HOFFMAN, Judge: Appellant contends that the lower court improperly ordered extradition because (1) the extradition proceeding was properly within the jurisdiction of the Juvenile Court and not the Court of Common Pleas; (2) appellant's confession, taken in violation of his rights, was insufficient to enable the Commonwealth to meet its burden of proof of identity as required by the Uniform Criminal Extradition Act;[1] and (3) the arrest warrant did not demonstrate probable cause to believe that appellant committed the crime alleged by the demanding state. Appellant, a seventeen-year-old wanted in New Jersey for murder, was arrested as a fugitive at his 290 home in Philadelphia on June 21, 1975.[2] Immediately after his arrest, appellant received Miranda warnings, but waived Fifth Amendment rights. He then gave a statement inculpating himself in the alleged New Jersey murder. Appellant was not advised by counsel or by another adult when he waived his rights. After a preliminary hearing held on the day of arrest, the court concluded that appellant appeared to be the person charged in New Jersey and scheduled the thirty-day hearing for July 18. 19 P.S. § 191.15. On July 18, the Commonwealth moved for a continuance until July 22, at which time appellant agreed to a rescheduling of the hearing until August 25. At the August 25 hearing, appellant was recommitted pursuant to 19 P.S. § 191.17. On September 8, appellant moved to transfer his case to the Juvenile Court. This motion was denied on September 18. At that time, all prior detainer were dismissed and appellant was arrested on Governor's warrants. On September 29, appellant filed a habeas corpus petition. On October 24, the court heard the petition for habeas corpus. At this hearing the Commonwealth presented evidence consisting of valid demand papers from New Jersey and the warrant issued by the Governor of Pennsylvania, as well as testimony by the New Jersey investigating officers and the Pennsylvania arresting officer. Testimony was taken as to the circumstances surrounding the confession. Appellant presented no evidence. On December 3, the court denied the habeas corpus petition and ordered extradition. 291 Appellant first contends that because he is a juvenile, the court should have granted his petition to transfer the case to Juvenile Court. The jurisdiction of the Juvenile Court is limited exclusively to four types of proceedings,[3] three of which appellant claims are applicable: "(1) Proceedings in which a child is alleged to be delinquent or deprived. "(2) Proceedings arising under sections 32 through 35 [11 P.S. § 50-329 to 11 P.S. § 50-332]. "(3) Transfers arising under section 7 [11 P.S. § 50-303]. "(4) Proceedings under the `Interstate Compact on Juveniles', section 731, Act of June 13, 1967 (P. L. 31) known as the `Public Welfare Code'".[4] Appellant argues that subsections (1), (3) and (4) provide the Juvenile Court with jurisdiction over the instant case. Subsections (1) and (3) are irrelevant to appellant's case for the reasons stated in Commonwealth ex rel. Colbert v. Aytch, 246 Pa.Super. 278, 369 A.2d 1321 (1976): Pennsylvania has not sought jurisdiction over the appellant in "any proceeding in which a child is alleged to be delinquent"; rather, Pennsylvania's sole purpose in exercising its jurisdiction was to return appellant to New Jersey at that state's request. Nor is this a proceeding in which a child is charged with the crime of murder, because the substantive crime will be tried in New Jersey; appellant is before the court in Pennsylvania solely to determine whether he may properly be extradited to New Jersey. It remains to be determined whether subsection (4), proceedings under the Interstate Compact on Juveniles, 292 is applicable. Prior to 1973, the Compact provided a procedure for the return of juveniles who had run away from home, escaped from an institution, or had been adjudged delinquent. 62 P.S. § 731, Article III. In 1973, the Compact was amended to include Article XVII,[5] which provides that the Compact "shall be construed to apply to any juvenile charged with being a delinquent by reason of a violation of any criminal law." (Emphasis supplied). Appellant contends that because the amendment is applicable, his case is properly within the jurisdiction of the Juvenile Court. Although New Jersey has adopted the Interstate Compact on Juveniles, it has not adopted the amendment, which may be executed by Pennsylvania only "with any other state or states legally joining in the same . . . ." 62 P.S. § 731, Article XVII(b). Therefore, the applicability of the Compact must be decided without reference to the amendment. Because appellant has not "run away from home, escaped from an institution or been adjudged delinquent", the Interstate Compact on Juveniles does not apply. Thus, New Jersey properly requested that appellant be returned under the Uniform Criminal Extradition Act, and the court below had jurisdiction to order the appellant extradited. Appellant contends that the evidence was insufficient for extradition. He asserts that his confession is entitled to no weight because it was obtained in violation of his constitutional rights. Appellant correctly notes that our Supreme Court has held that a juvenile's confession is inadmissible unless an opportunity to consult with a parent or other adult is afforded. See, e.g., Commonwealth v. Smith, 465 Pa. 310, 350 A.2d 410 (Filed January 29, 1976); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (Filed Nov. 26, 1975); Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 293 (1975). It is also true that we have stated that "the manner in which evidence has been obtained will have a bearing on the weight which the Court accords to it in the extradition proceeding." Commonwealth v. Kulp, 225 Pa.Super. 345, 348, 310 A.2d 399, 400 (1973). Nevertheless, an extradition proceeding is not concerned with the guilt or innocence of the accused. The demanding state's requisition papers are to be given prima facie validity by the asylum state, and extradition ordered, if the papers contain the following elements: (1) an allegation that the accused was present in the demanding state at the time of the crime; (2) an allegation that the accused is a fugitive from the demanding state; (3) an allegation that the accused is charged with a crime in the demanding state; (4) the demand papers are in order. Commonwealth ex rel. Colcough v. Aytch, 227 Pa.Super. 537, 323 A.2d 359 (1974); Commonwealth ex rel. Coades v. Gable, 437 Pa. 553, 264 A.2d 716 (1970). In addition, the Commonwealth must prove that the person held is the person wanted by the demanding state. See, e.g., Commonwealth ex rel. Edgar v. Davis, 425 Pa. 133, 228 A.2d 742 (1967); Commonwealth ex rel. Colcough v. Aytch, supra. Appellant claims that absent the confession, the Commonwealth did not present sufficient evidence to identify him as the individual demanded in the papers. At the habeas corpus hearing in the instant case, the Commonwealth not only presented the demand papers from New Jersey and the warrant issued by the Governor of Pennsylvania, but also the testimony of the arresting Pennsylvania officer, Detective Bethel. Detective Bethel testified that the appellant answered to the name of Robert Reyes, knew the birth date of Robert Reyes, and fit the physical description of Robert Reyes. This evidence is sufficient to identify the appellant as the person demanded in the requisition papers. While the appellant's confession was also used to identify him, it was merely cumulative. Thus, the Commonwealth presented 294 sufficient evidence to identify the appellant, and we need not reach appellant's claim regarding the weight to be given his confession. Appellant contends finally that the warrant did not demonstrate probable cause to believe that he committed the crime alleged by New Jersey. This contention was explicitly rejected in Commonwealth ex rel. Marshall v. Gedney, 237 Pa.Super. 372, 352 A.2d 528 (1975). Order affirmed. SPAETH, J., files a dissenting opinion. SPAETH, Judge, dissenting: For the reasons discussed in my dissenting opinion in Commonwealth ex rel. Marshall v. Gedney, 237 Pa.Super. 372, 352 A.2d 528 (1975), it is my view that where a request for extradition is based on affidavits sworn to before a magistrate in another state, the affidavits must be sufficient to support a finding of probable cause. Here, the Commonwealth did not introduce the affidavits into evidence. Accordingly, probable cause does not appear. I would therefore reverse. NOTES [1] Act of July 8, 1941, P.L. 288, § 1, 19 P.S. § 191.1 et seq. [2] Although under the Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, No. 223, art. I, § 101, et seq.; 17 P.S. § 211.202, felonious homicide is under the exclusive jurisdiction of the Supreme Court, the section refers to cases in which the accused has been convicted in Pennsylvania. When the trial on the felonious homicide charge is to take place in another state, and Pennsylvania's jurisdiction consists solely of the extradition proceeding, that proceeding is clearly within the jurisdiction of the Superior Court. 17 P.S. § 211.302. See Commonwealth ex rel. Colcough v. Aytch, 227 Pa.Super. 527, 323 A.2d 359 (1974). [3] Act of December 6, 1972, P.L. 1464, No. 333, § 3; 11 P.S. § 50-103. [4] Act of June 13, 1967, P.L. 31, No. 21, art. 7, § 731; 62 P.S. § 731. [5] Act of July 25, 1973, P.L. 201, No. 49, § 2, Article XVII; 62 P.S. § 731.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/669450/	23 F.3d 404NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Kevin D. THOMPSON, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Curtis Woodrow JONES, Defendant-Appellant. Nos. 93-5719, 93-5720. United States Court of Appeals, Fourth Circuit. Submitted March 29, 1994Decided April 11, 1994. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Chief District Judge. (CR-93-75-A) Gerald I. Fisher, Fisher, Morin & Kagan-Kans, P.C., Washington, DC; David B. Smith, Jacobovitz, English & Smith, Alexandria, VA, for appellants. Helen F. Fahey, United States Attorney, Mark J, Hulkower, Assistant United States Attorney, Alexandria, VA, for appellee. E.D.Va. AFFIRMED. Before HALL, MURNAGHAN, and LUTTIG, Circuit Judges. OPINION PER CURIAM: 1 Curtis Woodrow Jones and Kevin D. Thompson appeal their convictions for using and carrying a firearm during and in relation to a crime of violence under 18 U.S.C.A. Sec. 924(c) (West Supp.1993) and 18 U.S.C. Sec. 2 (1988). Because we find that their claims are without merit, we affirm their convictions. 2 In December 1992, Jones plotted with Eric Tyrone Vaughan to rob an armored car. As an employee of Federal Armored Express, Inc., Jones was familiar with the company's routes and procedures. He showed Vaughan the company's travel routes, explained its procedures, and advised him that during the robbery he should disarm the guard so he would not shoot the robbers or stop their escape. 3 On December 14, 1992, Vaughan and Thompson carried out the plan by robbing a Federal Armored Express armored car in Crystal City, Virginia. Vaughan was armed with a BB gun. Blocking the path of the armored car, Vaughan and Thompson seized a bag of currency and the guard's .38 caliber revolver and fled from the scene on foot. The next day, Vaughan gave Jones a share of the money and the guard's gun. Jones threw the gun in the Potomac River. 4 A grand jury indicted Jones and Thompson on four counts: conspiracy in violation of 18 U.S.C. Sec. 1951(a) (1988) (Count One); interference with commerce by threats or violence in violation of 18 U.S.C. Sec. 1951(a), 2 (Count Two); interstate transportation of stolen property in violation of 18 U.S.C.A. Sec. 2314 (West Supp.1993), 18 U.S.C. Sec. 2 (Count Three); and using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C.A.Sec. 924(c), 18 U.S.C. Sec. 2 (Count Four). Separately, the two men entered plea agreements and filed motions to dismiss Count Four of the indictment, asserting identical grounds for their motions. When the district court denied the motions, Jones and Thompson each pled guilty to Counts One and Four of the indictment, preserving their rights to appeal from the denial of the motions to dismiss. Each defendant timely appealed. 5 Jones and Thompson contend that confiscating a guard's firearm before escaping from a robbery scene does not violate 18 U.S.C.A. Sec. 924(c). This Court construes questions of law de novo. Nehi Bottling Co. v. All-American Bottling Corp., 8 F.3d 157, 162 (4th Cir.1993); United States v. Haynes, 961 F.2d 50, 51 (4th Cir.1992). 6 Section 924(c)(1) provides in relevant part: 7 Whoever, during and in relation to any crime of violence or drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years. 8 18 U.S.C.A. Sec. 924(c)(1). To prove a Sec. 924(c) violation, the government must show that the defendant used or carried the firearm during a crime of violence. Smith v. United States, 61 U.S.L.W. 4503, 4505 (U.S.1993). Appellants argue that because Thompson took the gun from the guard to prevent the guard from using it against the robbers and it was not used offensively, the firearm was not used or carried during a crime of violence. 9 Courts broadly construe the term "use" under Sec. 924(c). Sufficient evidence exists for a Sec. 924(c) conviction if a weapon was available for use during or immediately following the crime, increased the likelihood of the success of the crime, or if it facilitated the crime by giving its possessor courage. United States v. Caldwell, 985 F.2d 763, 765 (5th Cir.1993); United States v. White, 985 F.2d 271, 273 (6th Cir.1993); United States v. Hager, 969 F.2d 883, 888-89 (10th Cir.), cert. denied, 61 U.S.L.W. 3335 (U.S.1992); United States v. Vasquez, 909 F.2d 235, 239 (7th Cir.1990), cert. denied, 59 U.S.L.W. 3837 (U.S.1991). 10 A gun need not be used offensively to support aSec. 924(c) conviction. See Smith, 61 U.S.L.W. at 4507 (applying Sec. 924(c) where firearm traded for drugs); see also, United States v. Morrow, 977 F.2d 222, 231 (6th Cir.1992) (applying Sec. 924(c) where defendant claimed to use gun as protection against snakes in marijuana patch), cert. denied, 61 U.S.L.W. 3834 (U.S.1993). In fact, the legislative history clearly states that for purposes of a Sec. 924(c) conviction, a firearm has been used in relation to a crime of violence where "the defendant intended to use the gun if a contingency arose or to make his escape." S.Rep. No. 225, 98th Cong., 2d Sess. 1, 314 n. 10 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3492 n. 10. See also United States v. Payero, 888 F.2d 928, 929 (1st Cir.1989) (holding that Sec. 924(c) conviction will be upheld if "possessor of a weapon intended to have it available for possible use during or immediately following the transaction, or if it facilitated the transaction by lending courage to the possessor"). 11 By Appellants' own admission, Vaughan stole the gun from the armored car guard "so the guard would not shoot Mr. Vaughan or anyone who was with him, making it possible for Mr. Vaughan and whoever was with him to escape unharmed." Because the legislative intent of Sec. 924(c) clearly shows that the statute was intended to cover the use of firearms to facilitate escape, the district court properly denied Appellants' motions to dismiss Count Four of their indictment. 12 Jones further argues that he could not be found guilty of violating Sec. 924(c) because he was not present at the time of the robbery. This argument fails for two reasons. First, "conspirators [are] liable for all reasonably foreseeable acts of their co-conspirators done in furtherance of the conspiracy." United States v. Cummings, 937 F.2d 941, 944 (4th Cir.), cert. denied, 60 U.S.L.W. 3343 (U.S.1991); Pinkerton v. United States, 328 U.S. 640, 647 (1946). Here, Jones advised Vaughan to steal the armored car guard's gun so the robbers could flee, thereby completing their robbery. Because Vaughan's action of stealing the gun to facilitate escape was a foreseeable consequence of the conspiracy and Jones was a member of the conspiracy when this act occurred, he was properly convicted of violatingSec. 924(c). 13 Even if Jones could not be held liable on conspiracy grounds, he was liable as an aider and abettor. In United States v. Thomas, 987 F.2d 697 (11th Cir.1993), the Eleventh Circuit explained the requirements for sustaining an aiding and abetting conviction concerning Sec. 924(c): " 'To prove aiding and abetting, the government must demonstrate that a substantive offense was committed, that the defendant associated himself with the criminal venture, and that he committed some act which furthered the crime.' " Id. at 701-02; see also Morrow, 977 F.2d at 230-31. Here, it is clear that one of Jones' coconspirators stole the armored car guard's gun during a robbery to facilitate escape from the scene. Jones associated himself with the criminal venture both by helping to plan it and by accepting his share of the stolen money and disposing of the stolen gun. Finally, by explaining the armored car's route and advising his co-conspirator to steal the guard's gun, Jones committed acts which furthered the crime. Thus, Jones aided and abetted his co-conspirators in violating Sec. 924(c). 14 For these reasons, we affirm Appellants' convictions. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED	01-03-2023	04-16-2012
https://www.courtlistener.com/api/rest/v3/opinions/4212194/	FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 17, 2017 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-3037 (D.C. Nos. 2:14-CV-02578-KHV and BRETT W. ELLIS, 2:12-CR-20093-KHV-DJW-1) (D. Kan.) Defendant - Appellant. ORDER DENYING CERTIFICATE OF APPEALABILITY * Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. Appellant seeks a certificate of appealability to appeal the district court’s denial of his 28 U.S.C. § 2255 habeas petition. Following the denial of his motion to suppress evidence found in a search of his residence and computers, Appellant pled guilty to possession of child pornography and was sentenced pursuant to a Rule 11(c)(1)(C) plea agreement to a below-guidelines sentence of seventy-two months. In his § 2255 petition, he raised several claims of ineffective assistance of counsel, all relating to the * This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. unsuccessful motion to suppress. The district court denied Appellant’s § 2255 petition in a comprehensive twenty-three page order, in which the court analyzed each of Appellant’s claims and explained why each claim failed to show constitutionally ineffective advocacy and/or prejudice under the Supreme Court’s governing Strickland standard. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). After thoroughly reviewing Appellant’s brief and the record on appeal, we conclude that reasonable jurists would not debate the correctness of the district court’s ruling. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). For substantially the same reasons given by the district court, we DENY Appellant’s request for a certificate of appealability and DISMISS the appeal. ENTERED FOR THE COURT Monroe G. McKay Circuit Judge -2-	01-03-2023	10-17-2017
https://www.courtlistener.com/api/rest/v3/opinions/2588047/	205 P.3d 131 (2009) IN RE CUSTODY OF BARRETT. No. 82158-5. 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/1618491/	685 S.W.2d 413 (1985) Richard RUSSELL, appellant, v. STATE of Texas, appellee. No. 04-83-00499-CR. Court of Appeals of Texas, San Antonio. January 30, 1985. 415 Gerald H. Goldstein, San Antonio, for appellant. Sam Millsap, Jr., Dist. Atty., E. Dickinson Ryman, Linda C. Anderson, Asst. Criminal Dist. Attys., San Antonio, for appellee. Before ESQUIVEL, TIJERINA and DIAL, JJ. OPINION TIJERINA, Justice. This is a probation revocation case. Appellant was charged by indictment with aggravated promotion of prostitution and, on trial before the court, pleaded nolo contendere. The trial court deferred adjudication of guilt and placed appellant on probation for a term of six (6) years and further assessed a Five Thousand Dollar ($5,000.00) fine. At issue is condition of probation number sixteen (16), which requires appellant to comply completely with each of the provisions of attached "Orders and Judgment of Permanent Injunction, No. 81-CI-16876," incorporated by reference in full.[1] The 416 State filed a motion to enter adjudication of guilt and revoke probation, alleging that appellant violated Condition No. 16 as follows: VIOLATED CONDITION NO. 16: PARAGRAPH I That thereafter and during the term of said Probation, the defendant, Richard Russell, in the County of Bexar and the State of Texas, and on or about the 17th day of July A.D., 1983, did then and there fail to comply completely with each of the provisions of attached "Orders and Judgment of Permanent Injunction, No. 81-CI-16876," incorporated by reference herein in full, against the peace and dignity of the State, and in violation of Condition No. 16. VIOLATED CONDITION NO. 16: PARAGRAPH II That thereafter and during the term of said Probation, the defendant, Richard Russell, in the County of Bexar and the State of Texas, and on or about the 17th day of July, A.D., 1983, did then and there use the premises at 451 McCarty Road, San Antonio, Texas, for the promotion and aggravated promotion of prostitution and compelling prostitution, against the peace and dignity of the State, and in violation of Condition No. 16. VIOLATED CONDITION NO. 16: PARAGRAPH III That thereafter and during the term of said Probation, the defendant, Richard Russell, in the County of Bexar and the State of Texas, and on or about the 17th day of July A.D., 1983, did then and there permit, allow, maintain, operate, supervise, manage, control, finance, rent, lease, and occupy the premises at 451 McCarty Road, San Antonio, Texas, for the purposes of promoting and aggravated promotion of prostitution, against the peace and dignity of the State, and in violation of Condition No. 16. Appellant pleaded not true and after a full evidentiary hearing the court found that appellant had violated the terms of his probation. He was thus adjudicated guilty of aggravated promotion of prostitution. The probation was revoked and sentence was imposed. Appellant contends that the trial court erroneously revoked his probation for violation of Condition No. 16 as follows: (1) condition of probation No. 16 is not included in the conditions of probation provided 417 by statute; the court added this condition in violation of article II, section 1 of the Texas Constitution; (2) appellant was denied due process by the court's failure to file written findings; (3) Condition No. 16 was vague and indefinite and therefore invalid; (4) Condition No. 16 does not have a reasonable relationship to the treatment of the accused and the protection of the public; and (5) the evidence was insufficient to prove the violation by a preponderance of the evidence. It is well settled that no appeal may be taken from the hearing in which a trial court determines to proceed with an adjudication of guilt on the original charge. Daniels v. State, 615 S.W.2d 771, 771 (Tex. Crim.App.1981); Wright v. State, 592 S.W.2d 604, 606 (Tex.Crim.App.1980); Williams v. State, 592 S.W.2d 931, 932 (Tex. Crim.App.1979). Because all of appellant's grounds of error involve the hearing from which he cannot appeal, he has presented nothing for our review. Nevertheless, appellant has raised questions of constitutional dimension. We will, therefore, address his grounds of error. Appellant first complains that Condition No. 16 is unconstitutional because it is not one of the conditions statutorily provided by the legislature. The conditions of probation which the court may impose when probation is recommended by the jury are limited to the statutory conditions provided for in TEX.CODE CRIM.PROC.ANN. art. 42.12, § 6 (Vernon Supp.1984). Morales v. State, 541 S.W.2d 443, 445 (Tex.Crim.App.1976). In the instant case, probation was granted by the court. Therefore, the trial court is not limited to the probationary conditions set forth in § 6 of art. 42.12, supra, provided the condition is a reasonable one. Chacon v. State, 558 S.W.2d 874, 875 (Tex.Crim. App.1977). The court has wide discretion in selecting reasonable conditions of probation; however, the conditions should have a reasonable relationship to the treatment of the accused and the protection of the public. Macias v. State, 649 S.W.2d 150, 152 (Tex.App. El Paso 1983, no pet.). Condition No. 1 provides that appellant while on probation is not to "commit nor be convicted of any offense against the laws of the State of Texas; or any other State or of the United States." Condition No. 16 prohibits appellant from engaging directly or indirectly in the same criminal activity that resulted in his prosecution. Therefore, Condition No. 16 could be construed as an expansion of Condition No. 1, providing the desired specificity. See Tyra v. State, 644 S.W.2d 865, 869 (Tex.App. Amarillo 1982, no pet.), citing Flores v. State, 513 S.W.2d 66, 69 (Tex.Crim.App. 1974). There is nothing in this record to indicate that the trial court's imposition of the added condition of probation constituted an infringement of legislative powers. Ground of error one is overruled. In his second ground of error, appellant complains that the trial court erred in failing to make written findings in support of its order revoking probation. Appellant cites Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1762, 36 L.Ed.2d 656, 664 (1973), which held that minimum requirements of due process include a written statement by the fact finder as to the evidence relied on and reasons for revoking probation. Texas courts, however, require a defendant to make a request for specific findings. In the absence of such a request, the failure of the trial court to make specific findings in the order revoking probation is not reversible error. King v. State, 649 S.W.2d 42, 46 (Tex.Crim. App.1983, en banc); Bradley v. State, 608 S.W.2d 652, 655 (Tex.Crim.App.1980); Clapper v. State, 562 S.W.2d 250, 251 (Tex. Crim.App.1978). In the instant case, appellant concedes that no request was made for specific findings. Appellant was present and represented by counsel at the hearing on the motion to revoke his probation. He presented witnesses on his behalf and contested every issue. The order revoking probation is supported by a preponderance of competent evidence introduced at the evidentiary hearing. Unlike McDonald v. State, 608 S.W.2d 192 (Tex.Crim.App.1980), there was no reliance by the trial court on 418 "judicial notice" of the testimony in the prior proceedings. Therefore, we conclude that the finding recited in the court's order that the evidence sustained the violations alleged in the motion to revoke probation satisfies due process requirements. The second ground of error is overruled. Appellant next complains that Condition No. 16 is vague and indefinite and does not inform him with sufficient certainty as to the prohibited conduct because: (1) the number of persons who might disobey the injunction is indefinite; and (2) "using the premises ... in any ... manner for the promotion or aggravated promotion of prostitution or compelling prostitution" does tell him what he must do to avoid revocation. Generally, he argues that paragraphs II and III do not give him notice of the proscribed conduct. It is obvious that the language of the injunction tracks TEX. PENAL CODE ANN. § 43.04(a) (Vernon 1974), Aggravated Promotion of Prostitution, which provides in pertinent part as follows: A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes. A similar challenge that the statute was void for being vague and indefinite was made in Floyd v. State, 575 S.W.2d 21, 24 (Tex.Crim.App.1978), appeal dismissed, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979), and the court held: Both common logic and the rules of grammar dictate that a prostitution enterprise that uses prostitutes necessarily uses them for prostitution.... The terms complained of by appellant do not render Section 43.04 so ambiguous and vague that men of ordinary intelligence would guess at its meaning or differ as to its application.... Appellant had sufficient notice of the type of conduct proscribed by the statute and therefore he was not deprived of procedural due process. See also Wood v. State, 573 S.W.2d 207, 219 (Tex.Crim.App.1978). In Curtis v. State, 548 S.W.2d 57, 58 (Tex.Crim.App.1977), cited by appellant, the "condition" merely recited, "remain within a specified place." In this case, condition No. 16 specifically prohibits appellant from directly or indirectly using the premises at 451 McCarty Road, San Antonio, Texas, for promotion and aggravated promotion of prostitution. This, without more, is sufficient notice to appellant of the conduct proscribed. "There is always value in making all conditions explicit, primarily as an aid to the offender in increasing his understanding of what is expected of him." Flores v. State, 513 S.W.2d 66, 69 (Tex. Crim.App.1974). The third ground of error is overruled. The fourth ground of error is that Condition No. 16 does not have a reasonable relationship to the accused and the protection of the public as required by Hernandez v. State, 556 S.W.2d 337 (Tex.Crim. App.1977), and Tamez v. State, 534 S.W.2d 686 (Tex.Crim.App.1976), cited by appellant. A probationer, like a parolee, has the right to enjoy a significant degree of privacy. Basaldua v. State, 558 S.W.2d 2, 7 (Tex.Crim.App.1977). A probationer has a diminished expectation of privacy by virtue of the "conditions" but his rights may be diminished only to the extent necessary for his reformation and rehabilitation. Owens v. Kelley, 681 F.2d 1362, 1367 (11th Cir. 1982). In United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir.1975), the court held that probationary conditions which would allow any law enforcement officer to search a probationer at any time were overbroad and not reasonably related to the purpose of the act. The court further stated that the conditions which can be reasonably said to be proper are those that contribute significantly both to the rehabilitation of the convicted person and to the protection of society. See also United States v. Tonry, 605 F.2d 144 (5th Cir. 1979). In the case at bar, the condition in question sought the rehabilitation of appellant by supervising and restricting his 419 involvement with the operation of illegal activity at 451 McCarty Road in San Antonio, Texas. According to the stipulated evidence, said location was used for the promotion and aggravated promotion of prostitution. Additionally, the condition acts to deter appellant from criminal activity, complying with the probationary purpose of protecting society. One probation violation will support the court's order to revoke probation. Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App.1980). Appellant's fourth ground of error is overruled. In reviewing the sufficiency of the evidence question, we are required to view the evidence in the light most favorable to the court's judgment revoking probation. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App.1981). The State satisfies its burden of proof when the greater weight of the credible evidence, i.e., the preponderance of the evidence, creates a reasonable belief that the probationer has violated a condition of his probation. Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim. App.1980). In probation revocation proceedings, the trial court is the sole trier of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Story v. State, 614 S.W.2d 162, 164 (Tex.Crim.App.1981); Battle v. State, 571 S.W.2d 20, 21 (Tex.Crim.App.1978). Appellate review of a revocation of probation proceeding is limited to a determination of whether the trial court abused its discretion. McDonald v. State, supra. In this case, the State established by a preponderance of the evidence that appellant violated Condition No. 16, paragraph III, by maintaining, operating, supervising, managing, controlling, financing and occupying the Paris Modeling Studio for the purpose of prostitution and aggravated prostitution, at 451 McCarty Road, San Antonio, Texas. The State witness, Sarah Lou Brach, testified that she worked at the Paris Modeling Studio at 451 McCarty from July 13 or 14, 1983, to July 19, 1983, and that during her employment appellant, who was physically present at the studio every day, gave orders to women who worked at the studio, inspected the books, and, together with Stevie Parmeter, obtained a d/b/a permit and new bank account for continuing the operation. Brach further testified that she was arrested at the studio on July 19th and that an attorney retained by appellant posted her bond. Appellant admitted his presence at the business after July 15th, but he denied any interest in the business and claimed he was there solely to explain the payroll system to the new owner. He further testified that he believed his attorney had obtained an extension of the deadline for his sale of the business. The trial judge, as the trier of fact, chose to believe the testimony of the State's witness. Ground of error five is overruled. In his sixth ground of error, appellant complains that the trial court erred in not halting the revocation proceedings sua sponte and conducting a competency examination when appellant's counsel testified that he had some reservations about appellant's mental competence. It is well settled that a trial court is required to sua sponte hold a competency hearing only when sufficient facts or circumstances are brought to the court's attention that create a reasonable doubt as to the competence of the appellant. See, e.g., Hackbarth v. State, 617 S.W.2d 944, 948 (Tex.Crim.App. 1981); Morales v. State, 587 S.W.2d 418, 421 (Tex.Crim.App.1979); Perryman v. State, 507 S.W.2d 541, 543 (Tex.Crim.App. 1974). The test of legal competence is whether the accused has sufficient present ability to consult with his lawyer and a reasonable degree of rational understanding of the proceedings against him. Morales, 587 S.W.2d at 421; Paul v. State, 544 S.W.2d 668, 670 (Tex.Crim.App.1976); TEX.CODE CRIM.PROC.ANN. art. 46.02(1)(a) (Vernon 1979). Appellant's testimony during the hearing was clear and lucid; he made intelligent responses to questions propounded to him. In fact, appellant's counsel readily conceded that appellant has a factual and rational understanding of the charges against him. Appellant's sixth ground of error is overruled. 420 Finally, appellant urges that the trial court erred in overruling his motion to quash because the State's motion to enter adjudication of guilt and revoke probation was not verified by the prosecutor. Pollard v. State, 353 S.W.2d 449 (Tex.Crim. App.1962), the sole case which appellant offers as authority for this ground of error, does not require verification of a motion to revoke. Additionally, the Code of Criminal Procedure is devoid of any such requirement. Appellant's seventh ground of error is overruled. The judgment of the trial court is affirmed. NOTES [1] The Order and Judgment of Permanent Injunction enjoined and restrained appellant in the following respects: 1. using the premises at 451 McCarty Road, San Antonio, Texas, or the premises at any other location within the geographical limits of Bexar County, Texas, in any place or manner, or the promotion or aggravated promotion of prostitution, or compelling prostitution, as set forth by the provisions of TEX.PENAL CODE ANN. §§ 43.01-43.05 (Vernon 1974 & Vernon Supp.1982-1983); 2. permitting, allowing, maintaining, operating, supervising, managing, controlling, financing, renting, leasing, or occupying the premises at 451 McCarty Road, San Antonio, Texas, or premises at any other location within the geographical limits of Bexar County, Texas, in any place or manner, for the promotion or aggravated promotion of prostitution, or 3. using, permitting, allowing, maintaining, operating, supervising, managing, controlling, renting, financing, leasing, or occupying the premises at 451 McCarty Road, San Antonio, Texas, or premises at any other location within the geographical limits of Bexar County, Texas, in any place or manner, for any commercial enterprise, identified as a massage establishment, massage parlor, spa, hot tub emporium, bath house, dance or dancing studio, nude studio, modeling studio, love parlor, or a business by any other name or commercial identity whatsoever, whose business in any manner involves the offering of a service or services intended to provide sexual stimulation or sexual gratification to any customer; 4. using, permitting, allowing, maintaining, operating, supervising, managing, controlling, renting, financing, leasing, or occupying the premises at 451 McCarty Road, San Antonio, Texas, or premises at any other location within the geographical limits of Bexar County, Texas, in any place or manner, for any commercial enterprise involving massage; and 5. violating any provision, article or section of TEX.REV.CIV.STAT.ANN. arts. 2372v & 2372w (Vernon Supp.1982-1983); of the Regulations of Bexar County, Texas, for Massage Parlors in effect at any time; of the Regulations of Bexar County, Texas, for the Location of Certain Sexually Oriented Commercial Enterprises in effect at any time; of the Code of the City of San Antonio regarding massage businesses, masseurs and sexually oriented commercial enterprises, in effect at any time; and of TEX.PENAL CODE ANN. §§ 43.01-43.05 (Vernon 1974 & Vernon Supp.1982-1983), or any other state penal law regarding prostitution in effect at any time on premises at 451 McCarty Road, San Antonio, Texas, or premises at any other location within the geographical limits of Bexar County, Texas, in any place or manner.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/98076/	232 U.S. 236 (1914) MIEDREICH v. LAUENSTEIN. No. 20. Supreme Court of United States. Argued October 31, 1913. Decided February 2, 1914. ERROR TO THE SUPREME COURT OF THE STATE OF INDIANA. 237 Mr. George K. Denton for plaintiff in error, submitted. Mr. Louis T. Michener, with whom Mr. Perry G. Michener and Mr. Peter Maier were on the brief, for defendant in error. 241 MR. JUSTICE DAY delivered the opinion of the court. The plaintiff in error, by complaint filed in the Superior Court of Vanderburgh County, State of Indiana, sought to vacate a judgment of foreclosure rendered by that court in a prior case and to be permitted to redeem the property therein involved and prays for other relief, and, judgment having been entered in favor of the defendant in error, which was affirmed by the Supreme Court of Indiana (172 Indiana, 140), this writ of error was sued out. The facts, so far as pertinent to our review, are: The complaint, in the fourth paragraph, alleged that the plaintiff in error was the owner of certain property, subject to a mortgage foreclosed in a former suit; that she was a minor when the foreclosure proceedings were had; that she was not a resident of Vanderburgh County, where the action was brought, but was and had been for many years 242 a resident of Gibson County, and that she was not summoned in such action, had no knowledge of its pendency, and did not waive service or enter her appearance therein. It was further alleged that the plaintiff in error was not amenable to the jurisdiction of the sheriff of Vanderburgh County, but that, although she was not served with process, he made a false return of a pretended summons, by which the court was wrongfully imposed upon, and, being so advised, at the instance of attorneys for the predecessor of defendant in error, the court appointed a guardian ad litem for her, who answered in the suit, and that a decree was rendered, her property sold and bid in by the predecessor of the defendant in error. The demurrer of the defendant in error to this paragraph thus construed was sustained by the lower court and its decision affirmed by the Supreme Court. Other paragraphs of the complaint alleged fraud on the part of the predecessor of the defendant in error and her attorneys. The lower court found against this charge, and the Supreme Court, after stating that there was legal evidence to support the finding, refused to disturb it. The record is meager of attempts to raise a Federal question by reason of alleged violations of rights secured by the Constitution of the United States, aptly set forth and referred to in some proper way, and it is contended by the defendant in error that the writ should be dismissed for that reason. We find in the opinion of the Supreme Court of Indiana a statement that "both parties have treated this suit as one arising under the provisions of the Fourteenth Amendment to the Federal Constitution, and as presenting the question of due process of law and rights guaranteed by article I, § 21, of the state constitution," and the court, after making this statement, takes up the various grounds of attack upon the original decree for alleged fraudulent service or want of service upon the minor defendant in the foreclosure proceedings 243 and disposes of them against the contention of the plaintiff in error. There is no repudiation of the position of both parties that questions were raised under the Fourteenth Amendment to the United States Constitution, and we think the court may be fairly taken to have regarded such questions as duly before it for consideration. Where a state court holds that a Federal question is made before it, according to its practice, and proceeds to determine it, this court will regard the question as duly made. San Jose Land & Water Co. v. San Jose Ranch Co., 189 U.S. 177, 179-180; Haire v. Rice, 204 U.S. 291, 299; Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148; Atchison, Topeka & Sante Fe Ry. v. Sowers, 213 U.S. 55, 62. In the opinion of the Supreme Court upon rehearing the charge that the service of process was fraudulently procured by the predecessor in title of the defendant in error or her attorneys was held to be foreclosed by the findings of the court below, and the Supreme Court held that the findings were supported by testimony in the record showing competent evidence to that end. It is urged that upon this writ of error this court should reexamine the conclusions of fact just referred to and the rulings of the Supreme Court of Indiana in respect thereto. This court has repeatedly held that in cases coming to it from the Supreme Court of a State it accepts as binding the findings upon issues of fact duly made in that court. Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 107; Rankin v. Emigh, 218 U.S. 27, 34; Kerfoot v. Farmers' & Merchants' Bank, 218 U.S. 281, 288. That principle is applicable here. The case does not come within the exceptional class of cases where what purports to be a finding of fact is not strictly such but is so involved with and dependent upon questions of law bearing upon the alleged Federal right as to be a decision of those questions rather than of a pure question of fact, or where there is that entire lack of evidence to 244 support the conclusion upon the Federal question that gives this court the right of review. Kansas City Southern Ry. Co. v. Albers Commission Co., 223 U.S. 573, 591; Creswill v. Knights of Pythias, 225 U.S. 246, 261; Southern Pacific Co. v. Schuyler, 227 U.S. 601, 611; Portland Ry. Co. v. Oregon R.R. Com'n, 229 U.S. 397, 411-412. The Supreme Court of Indiana stated the question upon the decision of which the Federal question of due process arises as follows: "The question is then presented whether the allegations, that appellant was a minor, was not a resident of Vanderburgh county, was a resident of Gibson county, and had been for many years, that no summons was served on her, that she had no knowledge of the proceedings, did not waive service, nor did any one for her or in her behalf or with her consent, enter appearance for her, that she was not amenable to the jurisdiction of the sheriff of Vanderburgh county, that, notwithstanding that she was not served with process, the sheriff of Vanderburgh county made a false return of a summons, and the court was wrongfully imposed upon by such false return, and, being thus falsely advised at the instance of appellant's attorneys, [i.e., the attorneys for the predecessor of the defendant in error] appointed a guardian ad litem for her constitute a charge of fraud. The return was regular on its face. The court had jurisdiction of the subject-matter, and apparently jurisdiction of the person of appellant. The false return was not procured by the fraud, collusion or imposition of the plaintiff or his [her] attorneys [in the foreclosure suit]. It is not alleged that either knew of the fact that there had been no service on appellant. The allegations practically present this question. If, without any fraud, or any act on the part of a party to an action or his attorney, a return is made by a sheriff showing service, regular on its face, without knowledge of the party that there was in fact no service, and no act is done 245 or thing said to mislead the sheriff, is it an imposition or fraud upon the court to present such summons and return and obtain a judgment upon it, and is it a charge of fraud or imposition upon the court to allege that the court was wrongfully imposed upon by such false return, and was thus falsely advised? The whole allegations must be taken together, and the scope and theory of the paragraph, as we construe it, is that the court was misled by a false return of the sheriff. The court had a right to rely and act upon the return. It imports verity to the court. The sheriff assumes the responsibility, in taking the office, of seeing to it that he does make the right service. Nichols v. Nichols (1884), 96 Indiana, 433; State, ex rel., v. Leach (1858), 10 Indiana, 308; State, ex rel., v. Lines (1853), 4 Indiana, 351. "If this were not true, no litigant could ever know when his rights were adjudicated and set at rest, and, to the end that the party may be made whole, an action for a false return will lie. Splahn v. Gillespie (1874), 48 Indiana, 397; Rowell v. Klein (1873), 44 Indiana, 290. "If it be said that the amount of bond a sheriff is required to give might not cover the damage in any or every case, it is sufficient to say that that is a legislative matter, and not a judicial one." The question then is, does the ruling predicated upon the principles thus stated, made in the state court wherein the party has been duly heard, amount to a denial of due process of law within the meaning of the Federal Constitution? This court has recognized the difficulty of satisfactorily defining in general terms which shall apply to all cases what is meant by the term "due process of law," and the desirability of judicial determination upon each case as the question arises. Davidson v. New Orleans, 96 U.S. 97. If the exercise of judicial power be such "as the settled maxims of law permit and sanction, and under such 246 safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs," there has been no deprivation of due process of law. Cooley on Constitutional Limitations (7th ed.), 506; Leigh v. Green, 193 U.S. 79, 87. And this court, speaking by Mr. Chief Justice Fuller, in Leeper v. Texas, 139 U.S. 462, 468, said: "Law in its regular course of administration through courts of justice is due process, and when secured by the law of the State the constitutional requirement is satisfied." This language was quoted with approval in Iowa Central Ry. Co. v. Iowa, 160 U.S. 389, 393. In the present case the State has made provision for the service of process, and the original party in the foreclosure proceeding did all that the law required in the issue of and attempt to serve process; and, without fraud or collusion, the sheriff made a return to the court that service had been duly made. The duty of making such service and return by the law of the State is delegated to the sheriff, and, although contrary to the fact, in the absence of any attack upon it, the court was justified in acting upon such return as upon a true return. If the return is false the law of the State, as set forth by its Supreme Court, permitted a recovery against the sheriff upon his bond. We are of the opinion that this system of jurisprudence, with its provisions for safeguarding the rights of litigants, is due process of law. It may result, unfortunately, as is said to be the fact in this case, that the recovery upon the sheriff's bond will not be an adequate remedy, but statutes must be framed and laws administered so as to protect as far as may be all litigants and other persons who derive rights from the judgments of courts. So far as this record discloses the purchaser at the sheriff's sale had a right to rely upon the record, which imported verity as to the nature of the service upon the plaintiff in error. If this were not true, as the Supreme Court of 247 Indiana points out, there would be no protection to parties who have relied upon judicial proceedings importing verity, upon the faith of which rights have been adjudicated and value parted with. In a case of this character the law must have in view, not only the rights of the defendant who has been a victim of a false return on the part of the sheriff, but of persons who have relied upon the regularity of the return of officials necessarily trusted by law with the responsibility of advising the court as to the performance of such duties as are here involved. Were the law otherwise titles might be attacked many years after they were acquired, where the party had been guilty of no fraud and had acted upon the faith of judicial proceedings apparently perfect in every respect. This has been the rule of law applied to a similar situation in the courts of other States. Gregory v. Ford, 14 California, 138; Stites v. Knapp, Ga. Dec. 36, pt. 2; Taylor v. Lewis, 25 Kentucky, 400; Gardner v. Jenkins, 14 Maryland, 58; Smoot v. Judd, 184 Missouri, 508; Johnson v. Jones, 2 Nebraska, 126; Wardsboro v. Whitingham, 45 Vermont, 450; Preston v. Kindrick, 94 Virginia, 760. And see in this connection Walker v. Robbins, 14 How. 584, 585; Knox County v. Harshman, 133 U.S. 152, 156. Without the necessity of deciding more in the present case, it is enough to say that the decision of the Supreme Court of Indiana, made under the circumstances detailed, did not in our opinion deprive the plaintiff in error of due process of law within the meaning of the Fourteenth Amendment. It follows that the judgment of the Supreme Court of Indiana should be affirmed. Judgment affirmed.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/537188/	897 F.2d 21 100 A.L.R.Fed. 655, 58 USLW 2458, RICOBus.Disp.Guide 7411,5 Indiv.Empl.Rts.Cas. 78 Jeffrey HECHT, Appellant,v.COMMERCE CLEARING HOUSE, INC., William Miller, LouisCeccoli, and Stanley Stephens, Appellees. No. 418, Docket 89-7515. United States Court of Appeals,Second Circuit. Argued Nov. 20, 1989.Decided Jan. 25, 1990. Michael Flomenhaft, New York City, for appellant. David F. Graham, Sidley & Austin, New York City, for appellees Commerce Clearing House, Inc., William Miller, and Louis Ceccoli. Before OAKES, Chief Judge, CARDAMONE, Circuit Judge, and POLLACK, District Judge.* OAKES, Chief Judge: 1 Jeffrey Hecht appeals an April 28, 1989, judgment of the United States District Court for the Southern District of New York, Shirley Wohl Kram, Judge, dismissing his complaint seeking civil remedies under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Secs. 1961-68 (1988), for failure to state a claim upon which relief can be granted and failure to plead with sufficient particularity. Assuming, as we must, that the allegations of the complaint are true, we nevertheless affirm the order of the district court. 2 In this case, we primarily consider whether an employee has civil RICO standing for injuries from loss of employment and business commissions resulting from his failure to aid or abet alleged RICO violations by his employer and co-employees targeted at the employer's customers. 3 Hecht began working in January 1985 at Commerce Clearing House ("CCH"), a publisher of various law and business publications, as a Candidate Sales Representative. Assuming the position previously held by defendant Stanley Stephens, and working under the supervision of defendants Louis Ceccoli and William Miller, Hecht was responsible for servicing existing subscriptions and promoting new business in an assigned geographical area. 4 After beginning work at CCH, Hecht allegedly learned of various fraudulent acts committed by defendants and their agents, including forging customer signatures on orders, billing customers for fabricated or improperly confirmed orders, and disregarding subscription cancellation requests. Some customers advised Hecht that they would make no further purchases from CCH until the allegedly irregular practices were rectified. Hecht demanded that these practices be corrected, but was told by Ceccoli and Miller that he must either cooperate with the concealment of these frauds or lose his job. Upon refusing to cooperate, Hecht was terminated for insubordination. 5 Hecht filed a complaint on December 24, 1986, and an amended complaint on August 3, 1987, seeking recovery against CCH and the individual defendants under RICO's civil liability treble damages provision, 18 U.S.C. Sec. 1964(c) (1988), as well as under common law theories of prima facie tort and fraud. He based his RICO claim on allegations that the defendants violated 18 U.S.C. Sec. 1962 (1988)1 through participation as an enterprise in fraudulent acts constituting mail fraud under 18 U.S.C. Sec. 1341 (1988) and wire fraud under 18 U.S.C. Sec. 1343 (1988) and qualifying as RICO predicate acts of "racketeering activity" under 18 U.S.C. Sec. 1961(1) (1988). 6 The district court, in Hecht v. Commerce Clearing House, Inc., 713 F.Supp. 72 (S.D.N.Y.1989), found that whether or not Hecht's injuries resulted from his "blowing the whistle" and insisting on correction of defrauded customer accounts or from his simple refusal not to participate in the frauds, his injuries were not proximately caused by either defendants' racketeering conduct in violation of 18 U.S.C. Sec. 1962(a)-(c) or defendants' racketeering conspiracy in violation of 18 U.S.C. Sec. 1962(d). On this basis, the district court concluded Hecht had no standing to assert civil claims. In the alternative, the district court found that Hecht failed to plead a RICO conspiracy adequately. Finally, the district court dismissed the pendent common law claims as lacking sufficient federal jurisdictional basis. 7 On appeal, Hecht advances two theories of standing. First, he argues that defendants' racketeering conduct violating section 1962(c) proximately caused him to lose not only his job but also business commissions, thus distinguishing his case from the line of cases relied on by the district court. Second, he argues that an overt act in furtherance of defendants' conspiracy to racketeer was his discharge from employment and that such an act suffices to create civil liability under section 1962(d). Hecht also argues that he properly pleaded a RICO conspiracy, and that, even if he did not, he should be permitted to amend his complaint. DISCUSSION 8 The RICO civil liability provision confers standing on "[a]ny person injured in his business or property by reason of a violation of section 1962." 18 U.S.C. Sec. 1964(c). Thus, in order to have standing, a plaintiff must show: (1) a violation of section 1962; (2) injury to business or property; and (3) causation of the injury by the violation. See O'Malley v. O'Neill, 887 F.2d 1557, 1561 (11th Cir.1989). 9 This appeal principally concerns the last element: causation. Because a plaintiff must show injury "by the conduct constituting the violation" of RICO, see Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985), the injury must be caused by a pattern of racketeering activity violating section 1962 or by individual RICO predicate acts. See Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1100 (2d Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). Moreover, the RICO pattern or acts must proximately cause plaintiff's injury. See Sperber v. Boesky, 849 F.2d 60, 64 (2d Cir.1988); O'Malley, 887 F.2d at 1561. By itself, factual causation (e.g., "cause-in-fact" or "but for" causation) is not sufficient. See Sperber, 849 F.2d at 63. We recognize that determining what is the proximate cause of an injury is not free from normative legal policy considerations. See id. (citing to W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts 264 (5th ed. 1984); Restatement (Second) of Torts Sec. 431 comment a (1965); Howarth, "On Madness of Discourse, That Cause Sets Up with and Against Itself!" (Book Review), 96 Yale L.J. 1389, 1394-95 (1987). For our purposes, the RICO pattern or acts proximately cause a plaintiff's injury if they are a substantial factor in the sequence of responsible causation, and if the injury is reasonably foreseeable or anticipated as a natural consequence. See Bonsignore v. City of New York, 683 F.2d 635, 637 (2d Cir.1982); Restatement (Second) of Torts Secs. 431, 435 comment b (1965). 10 1. Standing for Defendants' Section 1962(c) Violation 11 Hecht's first ground of appeal is that racketeering conduct violating section 1962(c) caused him injury in the form of lost business commissions. This injury is too speculative to confer standing, because Hecht only alleges that he would have lost commissions in the future, and not that he has lost any yet. Even assuming that Hecht actually lost commissions, we hold that his injury was not proximately caused by violations of section 1962(c). 12 We previously have held that loss of employment (as distinct from loss of commissions) for reporting or refusing to participate in an enterprise engaging in a pattern of racketeering activity is not injury sufficient for standing. See Burdick v. American Express Co., 865 F.2d 527, 529 (2d Cir.1989) (per curiam) (no standing for a stockbroker who alleged being fired and losing his client base for complaining about his employer's questionable practices); see also O'Malley, 887 F.2d at 1563 (no standing for vice president and dean of private university fired for refusing to participate in mail fraud scheme); Cullom v. Hibernia Nat'l Bank, 859 F.2d 1211, 1216 (5th Cir.1988) (no standing for employee constructively discharged for refusing to participate in fraudulent loan transactions); Pujol v. Shearson/American Express, Inc., 829 F.2d 1201, 1204-05 (1st Cir.1987) (no standing for whistle-blowing employee constructively discharged for reporting fraudulent securities transactions); Nodine v. Textron, Inc., 819 F.2d 347, 348-49 (1st Cir.1987) (no standing for employee fired for registering objections to employer's customs law violations); Morast v. Lance, 807 F.2d 926, 932-33 (11th Cir.1987) (no standing for bank vice president fired after reporting irregular transactions to authorities); cf. Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 635-37 (2d Cir.1989) (no standing for employee suffering intimidation and harassment for whistle-blowing activities). But see Callan v. State Chem. Mfg. Co., 584 F.Supp. 619, 622-23 (E.D.Pa.1984) (pre-Sedima finding of standing for employee fired for refusing to participate in bribery). These cases underscore that the purpose of civil RICO liability does not extend to deterring any illegal act such as retaliatory firings for which there are state and common law remedies. "A defendant is not liable for treble damages to everyone he might have injured by conduct other than that prohibited by RICO." Norman, 873 F.2d at 636. Although Hecht's loss of employment may have been factually caused by defendants' RICO violations, it was not a foreseeable natural consequence sufficient for proximate causation. 13 For similar reasons, Hecht's injury from loss of commissions does not confer standing. See Burdick, 865 F.2d at 529 (no standing for stockbroker impeded by employer's frauds in his " 'ability to service his customers, keep them happy and earn a living for himself' "). Hecht's loss of commissions may have been factually caused by RICO violations, but was not proximately caused by the violations. Because Hecht was "neither the target of the racketeering enterprise nor the competitor[ ] nor the customer[ ] of the racketeer[s]," see Sperber, 849 F.2d at 65, the injury to Hecht from customers' deciding to cancel subscriptions or to withdraw business upon discovering the frauds was not reasonably foreseeable as a natural consequence of the RICO violations.22. Standing for Defendants' Section 1962(d) Violation 14 Hecht's second ground of appeal is that his discharge was an overt act in furtherance of the alleged RICO conspiracy, and thus that his injury directly resulted from defendants' violation of section 1962(d). 15 Section 1964(c) extends civil liability to any violation of section 1962. Therefore, it allows that injury may result from a section 1962(d) conspiracy. Because a conspiracy--an agreement to commit predicate acts--cannot by itself cause any injury, we think that Congress presupposed injury-causing overt acts as the basis of civil standing to recover for RICO conspiracy violations. See Medallion TV Enters. v. SelecTV of California, Inc., 627 F.Supp. 1290, 1297-98 (C.D.Cal.1986), aff'd, 833 F.2d 1360 (9th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 3241, 106 L.Ed.2d 588 (1989).3 Therefore, although an overt act by itself (whether or not injury ensues) is not a requisite element of a section 1962(d) criminal conspiracy violation, see United States v. Teitler, 802 F.2d 606, 613 (2d Cir.1986), we hold that injury from an overt act is necessary and sufficient to establish civil standing for a RICO conspiracy violation. 16 We cannot agree, however, with cases relied on by Hecht that find standing on the basis of any overt act in furtherance of the conspiracy, even if it is not a predicate racketeering act. See Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1169 (3d Cir.1989) ("Nothing in Sedima forecloses the possibility that harm arising from an act predicate to conspiracy, yet distinct from the racketeering acts listed in section 1961(1), might yet confer standing so long as the plaintiff has alleged a violation of section 1962(d)."); Williams v. Hall, 683 F.Supp. 639, 643 (E.D.Ky.1988) (any injury-causing overt act may confer standing). 17 Congress did not deploy RICO as an instrument against all unlawful acts. It targeted only predicate acts catalogued under section 1961(1). Admittedly, RICO is to be read broadly to effect its purpose. See Sedima, 473 U.S. at 497, 105 S.Ct. at 3285. Its purpose, however, is to target RICO activities, and not other conduct. 18 Therefore, we hold that standing may be founded only upon injury from overt acts that are also section 1961 predicate acts, and not upon any and all overt acts furthering a RICO conspiracy. See In re Crazy Eddie Sec. Litig., 714 F.Supp. 1285, 1291-92 (E.D.N.Y.1989) (finding civil standing for RICO conspiracy on the basis of injury "resulting from the defendant's commission in furtherance of the agreement of a predicate act."). Because the overt act of Hecht's discharge was not a section 1961(1) predicate act, his loss of employment does not confer civil standing. 3. Sufficiency of Conspiracy Pleading 19 Finally, we agree with the district court that Hecht did not plead a RICO conspiracy with sufficient particularity. Paragraph 105 of the complaint alleges that defendants were "conspiring with agents, servants, and employees and others to conduct their affairs through a pattern of racketeering activity; ... [and were] conspiring to violate provisions of [section] 1962(a),[ ](b) and (c)." It does not allege facts implying any agreement involving each of the defendants to commit at least two predicate acts. Because the core of a RICO civil conspiracy is an agreement to commit predicate acts, a RICO civil conspiracy complaint, at the very least, must allege specifically such an agreement. See Rose v. Bartle, 871 F.2d 331, 366 (3d Cir.1989) (must plead agreement to commit predicate acts and knowledge that those acts were part of a pattern of racketeering activity in violation of section 1962(a)-(c)); Morin v. Trupin, 711 F.Supp. 97, 111 (S.D. N.Y.1989) (must plead agreement and that defendants understood scope of enterprise and knowingly agreed to further its affairs through commission of offenses); Andreo v. Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, 660 F.Supp. 1362, 1372 (D.Conn.1987) (must plead knowing agreement to commit predicate acts).4 20 Because it would make no difference in outcome if he had pleaded conspiracy properly, we decline to remand to the district court to give Hecht an opportunity to move to amend his complaint.5 21 The judgment of the district court is affirmed.6 * Of the United States District Court for the Southern District of New York, sitting by designation 1 Section 1962, RICO's substantive provision, outlaws in separate subsections four types of racketeering-related activities. Section 1962(a) prohibits using income received from a "pattern of racketeering activity" to acquire an interest in or establish an enterprise engaged in or affecting interstate commerce. Section 1962(b) proscribes the acquisition or maintenance of any interest in an enterprise "through" a pattern of racketeering activity. Section 1962(c) prohibits conducting or participating in the conduct of an enterprise through a pattern of racketeering activity. Section 1962(d) proscribes conspiring to violate subsection (a), (b), or (c). Section 1962(c) and (d) are the principal provisions at issue in this case 2 Seeking to distinguish the line of cases that decline to find standing for discharged employees, Hecht claims that loss of commissions involves a deprivation of a "business or property" interest under section 1964(c), but that loss of employment does not. None of the discharged-employee cases, however, turn on insufficiency of the injury. Rather, they focus on the cause of the injury. Moreover, loss of employment, even in the absence of a contract, may be a deprivation of a property interest. Cf. Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972) (employment rights are property interest for purposes of due process). Even were no property rights at play, we could not agree that loss of employment does not injure one's "business" 3 At common law, a civil conspiracy claim may be founded on an injury from an unlawful overt act done in furtherance of the conspiracy. See Halberstam v. Welch, 705 F.2d 472, 477 (D.C.Cir.1983); Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956) 4 Defendants moved to dismiss the complaint for lack of particularity under Rule 9(b), but the district court did not state whether its decision was based on Rule 9(b). On its face, Rule 9(b) applies only to fraud or mistake, not to conspiracy. Hecht's pleading of a conspiracy, apart from the underlying acts of fraud, is properly measured under the more liberal pleading requirements of Rule 8(a). See Rose, 871 F.2d at 366; Andreo, 660 F.Supp. at 1372. Even so, the complaint must allege some factual basis for a finding of a conscious agreement among the defendants 5 We find it unnecessary to reach the questions, not decided by the district court, whether a corporation is capable of conspiring with its own officers and whether Hecht adequately pleaded the "enterprise" requirement 6 Although the district court's judgment of April 28, 1989, dismissed the complaint with respect to all the defendants, defendant Stephens has not entered an appearance in this case, nor did he join in the motion to dismiss. Sua sponte dismissal of the complaint with respect to Stephens is appropriate here, because the issues concerning Stephens are substantially the same as those concerning the other defendants, and Hecht, the party against whom the judgment of dismissal was entered, had notice and a full opportunity to make out his claim against Stephens. See Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir.1988) (discussing general appropriateness of sua sponte dismissals); 5 C. Wright & A. Miller, Federal Practice & Procedure Sec. 1357, at 593 (1969)	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/1299397/	53 Wn.2d 347 (1959) 333 P.2d 674 BURTON ROUTH, Respondent, v. RAY WAGNER et al., Appellants.[1] No. 34620. The Supreme Court of Washington, Department One. January 2, 1959. Clarke, Clarke, Albertson & Bovingdon, for appellants. Joe McAdams, for respondent. FINLEY, J. Burton Routh, the plaintiff, was engaged in the business of making repairs to and installing refrigeration equipment. Ray L. Wagner (hereinafter referred to as if he were the sole defendant) was the local manager, acting agent and adjuster for General Adjustment Bureau, Inc., at Moses Lake, Washington. On January 4, 1956, a fire occurred at the Hub Cafe in the city of Moses Lake. Defendant was notified that two of the insurance companies for which he adjusted losses held the fire insurance on the Hub Cafe. Included in the coverage was insurance against loss from business interruption, which meant that for as long as the Hub Cafe was not operating the insurance companies could incur liability for loss under the particular coverage. Consequently, it would be to the advantage of the insurers for the fire damage to be repaired as quickly as possible, and the cafe placed back into operation promptly. On the morning of the fire, the defendant went to the Hub Cafe. At the time, the plaintiff subcontractor was also at the cafe and was conversing with a Mr. Harvey Yager, who was the general contractor employed to repair the fire damage to the cafe. In response to a request by Mr. Yager, the plaintiff submitted a bid for the repair of the 349 refrigeration equipment. Both Mr. Yager and the defendant indicated their views that this bid was too high, and the defendant requested plaintiff to submit another bid. On the day following the fire, plaintiff went to the defendant's office and submitted a lower bid. This met with the approval of the defendant, and he requested that the plaintiff begin work immediately. Further, the defendant urged the plaintiff to complete the work as soon as possible, because he, the defendant, was interested in getting the cafe back into operation. The plaintiff was aware during the above transactions that the defendant was an insurance adjuster; however, defendant never divulged the names of the companies he represented. And there is no dispute that the defendant failed to get authority from the insurance companies before he proceeded to have the cafe repaired. Subsequently, the insurance companies denied liability on this loss. Plaintiff brought this action for the value of the work, labor, and materials, which he expended in repairing the refrigeration system. There is no dispute as to the reasonable value of the plaintiff's services. The trial court found that the plaintiff did the work at the special instance and request of the defendant. Judgment was entered in favor of the plaintiff. Defendant appeals. [1] Appellant makes seven assignments of error. Five of these are argued under one heading; namely, that there was no evidence that the respondent performed the work at the special instance and request of the appellant. The trial court found to the contrary, and there is substantial evidence in the record to support its finding. After the respondent submitted his initial bid to Yager and it was rejected by appellant, the respondent dealt directly with the appellant. It was the appellant who requested him to continue the work, and who urged him to proceed with it as rapidly as possible. [2] In procuring the respondent to do the work, the appellant acted without authority given to him by the insurance companies. In 2 Am. Jur. 250, § 319, it is stated that 350 "It is well settled that an agent who exceeds his authority, so that his principal is not bound, will himself be liable for the damage occasioned to the other contracting party." By his last two assignments of error, the appellant contends that, even if he did authorize the work, his action constituted a promise to pay for the debt of another. He argues that since this promise was not in writing it was void under the statute of frauds. [3] We are of the opinion that there is no merit in these two assignments. As the trial court pointed out in its oral opinion, this was an original undertaking by the appellant. He proceeded on his own volition to have the fire damage repaired and the cafe back into operation. In so doing, he made himself liable to the respondent as a principal. As to the liability of the other appellant, General Adjustment Bureau, Inc., the trial court by its finding of fact No. 3 found: "That at all times material to the above entitled cause, Defendant, Ray L. Wagner was acting individually and also as the authorized agent of Defendant, General Adjustment Bureau, Inc. and within the scope of his employment by said General Adjustment Bureau, Inc.; ..." [4] No error is assigned to this finding, and it becomes an established fact of the case. The judgment should be affirmed. It is so ordered. HILL, C.J., MALLERY, FOSTER, and HUNTER, JJ., concur. NOTES [1] Reported in 333 P. (2d) 674.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618603/	38 So. 3d 445 (2010) SUCCESSION OF Albert P. FIRMIN. Mrs. Albert Firmin v. Henrynne Louden, M.D., Executrix of the Succession of Albert Firmin. Nos. 2009-CA-0411, 2009-CA-0412. Court of Appeal of Louisiana, Fourth Circuit. April 21, 2010. 446 Miles G. Trapolin, Trapolin Law Firm, New Orleans, LA, for Appellant. Eric M. Schorr, Jack M. Alltmont, Max Nathan, Jr., Sessions Fishman Nathan & Israel, L.L.P., New Orleans, LA, for Appellee. (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME). TERRI F. LOVE, Judge. Mrs. Firmin sued the executrix of Mr. Firmin's estate, Dr. Henrynne Louden, to recover a marital portion of the estate. Mrs. Firmin filed a petition for damages for loss of use of the family home and, in the alternative, loss of use of insurance proceeds. Also, Mrs. Firmin filed motions to recover one-half of the community. The trial court found that at the time of Mr. Firmin's death, he was not rich in comparison to Mrs. Firmin, and, therefore, Mrs. Firmin is not entitled to a marital portion. The trial court found that the income from Mr. Firmin's business, ACT, was a separate asset and income from ACT was not community property. Also, the trial court found that Mrs. Firmin is not entitled to the use of insurance proceeds from the family home. We find no error in the trial court's rulings and affirm. FACTUAL AND PROCEDURAL HISTORY Albert P. Firmin ("the Decedent") died testate on February 2, 2003, leaving his wife, Valerie Bosworth Firmin ("Mrs.Firmin")[1], 447 full ownership of all his "household furniture and belongings, appliances, and miscellaneous personal effects" and "use and habitation" of the house where they resided, which was located at 24 Chatham Drive, New Orleans, Louisiana. The Decedent appointed his sister Henrynne Louden ("Executrix") as his executrix and trustee. Mrs. Firmin claimed that 1) she was entitled to the marital portion under Louisiana Law; 2) she is entitled to one-half (1/2) of the undistributed net income of the Decedent's Business, Advanced Computer Technologies ("ACT"), and; 3) she is entitled to the insurance proceeds received by the Succession as a result of the damage to the family house due to Hurricane Katrina. After a bench trial, the trial judge found that Mrs. Firmin was not entitled to the recovery sought and entered judgment denying each of her claims. STANDARD OF REVIEW An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety & Corrections, 2001-2123 (La.9/4/02), 825 So. 2d 1134; Stobart v. State through Dept. of Transp. and Dev't, 617 So. 2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So. 2d 840 (La.1989). To reverse a fact finder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra. A trial court's findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review. Ross v. Ross, 2002-2984 (La.10/21/03), 857 So. 2d 384 MARITAL PORTION Mrs. Firmin sued the executrix of Mr. Firmin's estate, Dr. Henrynne Louden, to recover a marital portion of the estate. However, the trial court found that Mrs. Firmin was not entitled to a marital portion of the estate. Mrs. Firmin contends that the trial court erred in finding that she was not entitled to the marital portion. La. Civ.Code art. 2432 provides: "When a spouse dies rich in comparison with the surviving spouse, the surviving spouse is entitled to claim the marital portion from the succession of the deceased spouse." La. Civ.Code art. 2434 provides that "The marital portion is one-fourth of the succession in ownership if the deceased died without children, the same fraction in usufruct for life if he is survived by three or fewer children." La. Civ.Code art. 2432, comment (c) points out that whether one spouse dies "rich" in comparison to the other is relative. The time for making this determination is the date of death of the spouse. Succession of Monroe, 494 So. 2d 336 (La.App. 4th Cir.1986), writ denied, 498 So. 2d 16 (La.1986). Although there is no bright line test to guide the courts in 448 comparing the relative wealth of the two estates, at least one appellate court has recognized that "five to one" is the minimal ratio which will be considered. Smitherman v. Smitherman, 240 So. 2d 6 (La.App. 2nd Cir.1970). Mr. Firmin died leaving two children, Ashley and Dana; therefore, the marital portion at issue is full ownership or usufruct over one-fourth of Mr. Firmin's probate estate. However, La. Civ.Code art. 2435 requires that "the marital portion must be reduced by the value of any legacies made to the surviving spouse." In determining whether Mrs. Firmin is entitled to a marital portion, the trial court compared the value of Mrs. Firmin's personal assets at the time of Mr. Firmin's death and the value of the assets that Mrs. Firmin received due to Mr. Firmin's death to the value of Mr. Firmin's estate. Mrs. Firmin testified that at the time of Mr. Firmin's death, her patrimonial assets were as follows: Savings account $ 31,500.00 Checking account $ 28,476.12 Mercedes automobile $ 15,000.00 IRA $ 1,736.75 Credit union account $ 1,042.58 TOTAL $ 77,755.45 Also, due to Mr. Firmin's death, Mrs. Firmin received the following: Mr. Firmin's retirement account $ 65,436.00 30-months use of family home (value estimated at $1,900/month less annual costs paid by Mrs. Firmin $ 40,500.00 Furniture $ 24,000.00 TOTAL $129,936.00 As a result, the trial court found that the total of Mrs. Firmin's personal assets in addition to the value of the items she received as a result of Mr. Firmin's death was $207,691. Comparatively, the trial judge found that Mr. Firmin's assets at the time of his death were valued at $259,297. This amount included a valuation of ACT at $218,546, which was comprised of the shareholders equity shown on the tax return as of December 2002, minus more than $179,000 in federal and Louisiana state income taxes that were due and subsequently paid on 2002 income. Mrs. Firmin maintains that in assigning a value to Mr. Firmin's interest in ACT, the trial court incorrectly relied upon the Amended Descriptive List filed by the Executrix. Mrs. Firmin contends that the marital portion is calculated using the gross estate of the decedent. She further contends that without evidence to support valuation, the trial court erred in increasing the value of Mrs. Firmin's inheritance by $55,000 and arbitrarily assigned a $40,000 value for her use of the family home and $15,000 for her car. Mrs. Firmin also maintains that the trial court decreased the value of the estate by omitting $616,000 of cash from the value of ACT. We find no error in the trial court's consideration of the Amended Descriptive List submitted at trial and the testimony of ACT's accountant, Matthew Hurst, CPA ("Mr.Hurst"). The evidence and testimony corroborated the values included on the Executrix's Amended Descriptive List. Based on the valuation of the assets of these two patrimonies, Mr. Firmin did not die rich in comparison to Mrs. Firmin. The relative comparison between the two patrimonies is far below what courts have heretofore considered the minimal. The trial court's findings on this issue are therefore not manifestly erroneous or clearly wrong. Accordingly, the trial court did not err in finding that Mrs. Firmin is not entitled to receive the marital portion. COMMUNITY PROPERTY Mrs. Firmin filed motions to recover one-half of the community. In response, the executrix filed a Petition for Possession with an accompanying motion to force Mrs. Firmin to accept the estate's 449 stated one-half of the community. However, Mrs. Firmin did not accept the stated value of the community. The trial court held that Mr. Firmin's business, ACT, was a separate asset and any income retained by the company as of Mr. Firmin's death was also a separate asset. Mrs. Firmin claims that she is entitled to one-half (1/2) of the undistributed income of ACT as her community property. However, the trial judge held that despite Mr. Firmin's unreported income and multiple corporate irregularities, the income from ACT for their one year of marriage remained separate property. Mrs. Firmin argues that the trial court erred in holding that the income from ACT, was not community property. To support this argument, Mrs. Firmin contends that ACT's accountant testified that Mr. Firmin was under-compensated, hid income by using ACT's checking account as his own personal account, and used corporate funds to purchase three cars for his daughters and sister, and constructing swimming pools for himself and his sister. The appellant also contends that Mr. Firmin did not follow corporate formalities in the operation of his business. The trial court determined that Mr. Firmin's regular pattern was to use money from the company's account for living expenses while leaving the remainder of the money in the company's account to fund its operations. The trial court found that while Mr. Firmin's bookkeeping was relatively casual, ACT was an entity that was legally separate from Mr. Firmin. The trial judge noted that ACT "was a real and substantial business with its own books and records and most importantly, it regularly reported and paid corporate taxes." As a result, the trial judge ruled that Mrs. Firmin is not entitled to the business income of ACT. Under Louisiana law, property is characterized as either community or separate. La. Civ.Code art. 2335. Further, classification of property as either separate or community is fixed at the time of its acquisition. Noil v. Noil, 96-2167 (La. App. 1 Cir. 9/19/97), 699 So. 2d 1134. La. Civ.Code Article 2341 provides: The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime. Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. La. Civ. Code. art. 2340. La. Civ.Code art. 2340 establishes a presumption in favor of the community which can be rebutted by either spouse. Since this presumption is rebuttable, the article is procedural in nature and can be applied retroactively to the facts of a case. See Tullier v. Tullier, 464 So. 2d 278, 282 (La.1985). The proper burden of proof in overcoming the presumption of community contained in Article 450 2340 is a preponderance of the evidence. Talbot v. Talbot, 03-0814, p. 12 (La.12/12/03), 864 So. 2d 590, 600. The party asserting the separate nature of the property acquired during the marriage has the burden of overcoming a strong presumption in favor of the community. Tullier, 464 So.2d at 283. The trial court's findings regarding the nature of the property as community or separate are factual determinations. Harvey v. Amoco Production Company, 96-1714, p. 7 (La.App. 1 Cir.6/20/97), 696 So. 2d 672, 677. As the representative of Mr. Firmin's succession, the executrix established that Mr. Firmin's ownership interest in ACT was acquired prior to his one-year marriage to Mrs. Firmin. Also, the record reflects that instead of paying himself a salary, Mr. Firmin routinely paid personal expenses from the ACT account and credit cards for personal expenses. Mr. Hurst, who acted as a CPA for ACT and Mr. Firmin from 1999 to 2003, testified that beginning in 2000, he began to properly account for those personal expenses by creating what he referred to as a loan-to-shareholder account. Mr. Hurst testified that the payment of salary to Mr. Firmin was credited to this account, and personal expenses were debited from this account. Mr. Firmin's routine use of ACT's checking account and credit card was verified by Mr. Hurst, who acted as the CPA for ACT and Mr. Firmin from 1999 to 2003. However, even if it were as Mrs. Firmin argues that Mr. Hurst's testimony proves that Mr. Firmin used corporate funds for personal purchases, "[t]he mere mixing of separate funds and community funds in a bank account does not alone convert the entire account into community property." Biondo v. Biondo, 99-0890, p. 11 (La.App. 1 Cir. 7/31/00), 769 So. 2d 94, 103 citing Curtis v. Curtis, 403 So. 2d 56, 59 (La.1981). "Where separate funds can be traced with sufficient certainty to establish the separate ownership of property paid for with those funds, the separate status of such property will be upheld." Id., citing Landwehr v. Landwehr, 547 So. 2d 752, 755 (La.App. 4th Cir. 1989). The record further reflects that in the year of his marriage to Mrs. Firmin, Mr. Firmin took the same "de facto salary" that he routinely took from the company for living expenses in years prior to their marriage. Credibility determinations, including the evaluation of and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact, which should not be disturbed on appeal in the absence of manifest error. Hanks v. Entergy Corporation, 2006-477 (La.12/18/06), 944 So. 2d 564. The trial court made a credibility determination, and we find no basis to reverse that determination on appeal. We find no error in the trial court's determination that ACT and the income retained by the company as of Mr. Firmin's death was separate property. INSURANCE PROCEEDS Mrs. Firmin filed a petition for damages for loss of use of the family home and, in the alternative, loss of use of insurance proceeds. The trial court, however, denied Mrs. Firmin's claim. Mrs. Firmin contends that the trial court erred in not awarding her the use of insurance proceeds from the family home that was destroyed during Hurricane Katrina. Mrs. Firmin maintains that neither she nor the estate wanted to repair the house or could afford to repair the property; therefore, with the loss of use of the home, Mrs. Firmin claims entitlement to use of the insurance proceeds. 451 Mr. Firmin's will bequeathed to Mrs. Firmin use and occupancy of the family house with the proviso that she continued to live in the family house. Further, Mr. Firmin's will stated that Mrs. Firmin "shall be responsible to make all reasonable repairs, pay all taxes, and keep the improvements located on the property covered with adequate fire and extended coverage insurance." The right of habitation is a "nontransferable real right of a natural person to dwell in the house of another." La. Civ.Code art. 630. This right is "regulated by the title that establishes it." La. Civ.Code. art. 632. The Louisiana Supreme Court "has indicated that the function of the courts is to carry out the intention of the testator and effect should be given to all language contained in the will if possible." Succession of Bel, 377 So. 2d 1380, 1383 (La.App. 4th Cir.1979). The right of habitation conferred on Mrs. Firmin is governed by Mr. Firmin's testamentary language, in which he explicitly delineated her rights and responsibilities. Mr. Firmin's will specified Mrs. Firmin's obligations with regard to use and habitation. Specifically, Mr. Firmin's will stipulated that if Mrs. Firmin did not continually live in the family house for a period of six months, the conferred right of use and occupancy would cease. The record reflects that the executrix offered Mrs. Firmin use of the insurance proceeds to repair the family house for her to occupy it. However, Mrs. Firmin did not accept that offer. Further, Mrs. Firmin testified that she had no desire to reside in the family house. The trial judge stated that the insurance money for damages to the family house was received more than two years prior to trial and noted that Hurricane Katrina occurred more than three years prior to trial. The trial court found that even after affording some leniency in the stipulated six-month requirement due to Hurricane Katrina, Mrs. Firmin still had not occupied the family house at the time of trial. We find no error in the trial court's determination that Mrs. Firmin could not be granted the use of the insurance proceeds in lieu of fulfilling the occupancy requirement stipulated by Mr. Firmin in his will. Allowing Mrs. Firmin to use the insurance proceeds for any purpose other than to occupy the house would be contrary Mr. Firmin's testamentary intent. Therefore, we find that the trial court did not err in denying Mrs. Firmin use of the insurance proceeds. DECREE Accordingly, we affirm the trial court's judgment. Mrs. Firmin is not entitled to a marital portion. The income from Mr. Firmin's business, ACT, was a separate asset and income from ACT was not community property. Mrs. Firmin is not entitled to the use of insurance proceeds from the family home. AFFIRMED. NOTES [1] Due to the pleadings, for the purpose of this appeal, the Court will refer to the appellant as "Mrs. Firmin."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618811/	615 So. 2d 396 (1993) Monica Jean SCHULTZ v. Abduladim Abdulbari ELREMMASH. No. 92-CA-903. Court of Appeal of Louisiana, Fifth Circuit. February 25, 1993. Writ Denied May 7, 1993. 397 D. Douglas Howard, Jr., Rachel C. Marinovich, New Orleans, for plaintiff/appellee. Terence L. Hauver, Jeanne M. Gravois, Lowe, Stein, Hoffman, Allweiss and Hauver, New Orleans, for defendant/appellant. Before WICKER, GOTHARD and CANNELLA, JJ. GOTHARD, Judge. The defendant, Abduladim Abdulbari Elremmash, appeals a decision of the trial court granting sole custody of his minor daughter, Neesa, to her mother, plaintiff herein. We affirm. The record shows the parties were married on November 7, 1984. One child, Neesa, was born of the marriage on June 2, 1985. A petition for separation was filed by the wife on February 21, 1986. The parties were subsequently divorced. A judgment was rendered on March 2, 1987 awarding joint custody with primary custodial care to the mother and reasonable visitation to the father. That judgment prohibited either party from taking the child out of the state without permission of the other party, and from taking the child out of the country without written permission of the other party. On June 24, 1987 the father filed an ex parte motion requesting that he be allowed to take Neesa to visit her grandparents in Athens, Greece. Mr. Elremmash is a Libyan citizen. In that ex parte motion Mr. Elremmash avers that his parents are residents and citizens of Libya and are unable to travel to the United States to visit their granddaughter. Mr. Elremmash also contends he requested written permission from his ex-wife to take Neesa to Athens but she refused. That request was denied. On May 12, 1988 the wife filed a motion to modify the custody and visitation arrangements asserting that communications between the parties had deteriorated, an attempt at mediation had failed and there was no agreement as to Neesa's schedule. On May 27, 1988 the husband filed a rule to show cause again requesting permission to take the child out of the country. The wife filed a counter-rule asking the court to require a cash bond from Mr. Elremmash should he be allowed to take the child out of the country. On October 26, 1988 the parties entered into a six page consent decree maintaining joint custody with the wife as primary custodial parent and granting liberal visitation to the husband. The judgment specifically detailed timesharing between Christian and Moslem holidays. The judgment dictates that travel outside the United States with Neesa by either party was prohibited. Further, all parties were ordered to participate in counseling with Dr. William Janzen. On October 3, 1989 Ms. Schultz filed a motion to modify the joint custody plan because she had moved to Minnesota. The request was denied and the trial court ordered that Dr. Janzen issue a report to the 398 court on the advisability of modifying the child's schedule and the possible effects on the child of a move out of state. On May 22, 1990 the parties entered into a new consent agreement maintaining joint custody and dividing the child's time between the mother and the father. That judgment also allowed Mr. Elremmash to take Neesa out of the continental United States during his summer visitation period between May 23, 1990 and July 31, 1990. During that summer visitation period Mr. Elremmash took Neesa into Libya and failed to return her to her mother until about six weeks after the July 31, 1990 date. In February of 1991 Ms. Schultz returned to the New Orleans area and attempted a reconciliation with Mr. Elremmash. That reconciliation attempt failed. On June 10, 1991 Ms. Schultz filed a rule to change custody in which she asserted that she intended to remarry and relocate to Minnesota. On July 3, 1991 the parties again entered into a consent agreement which permitted Mr. Elremmash to take Neesa outside of the United States, but not to Libya, between July 3 and August 17, 1991, the period of his physical custody. The pending rules for custody from both parties were continued until September, 1991 to allow time for custody evaluations. On July 2, 1991 Mr. Elremmash filed a petition for a writ of habeas corpus alleging that Ms. Schultz informed Mr. Elremmash that she had no intention of allowing Mr. Elremmash to exercise his summer physical custody as ordered by the court. On July 8, 1991 Ms. Schultz filed a petition for domestic relief in which she asserted that Mr. Elremmash had taken Neesa illegally into Libya and she believed he would do so again. The court granted Mr. Elremmash six weeks summer visitation with travel restricted to within the continental United States. On July 25, 1991 Ms. Schultz filed a rule for interim custody, restricted visitation and/or bond to secure visitation requesting that she be granted custody of Neesa pending the custody hearing set for September 16, 1991. In that rule Ms. Schultz informed the court that she had remarried and relocated to Minneapolis, Minnesota and that Neesa was scheduled to begin school on September 3, 1991. The court heard the custody matter on the 16th, 17th, 18th and 25th of September, 1991. On September 25, 1991 the court rendered an interim judgment pending the final judgment which was rendered on December 16, 1991. That final judgment awarded sole custody to the mother with liberal visitation and telephone contact to the father. The judgment also ordered Ms. Schultz to keep Mr. Elremmash fully informed of Neesa's progress in school and of any serious illness or other major developments in Neesa's life. The court prohibited travel outside of the United States with Neesa and ordered Neesa's U.S. passport to be surrendered to Ms. Schultz as well as her Libyan passport, should one be issued. It is from that judgment that Mr. Elremmash appeals. During the four days of the custody hearing the trial court heard extensive testimony from the parties, Dr. Janzen and the principal of the school Neesa attended in New Orleans. The parties each testified about their relationship with each other and with Neesa. They further testified concerning the difficulties each has had as well as the compromises each has made in the raising of their daughter. Dr. William Janzen testified that it was his feeling that, although Ms. Schultz was more given to compromise than Mr. Elremmash, both parties loved the child. Dr. Janzen testified that Mr. Elremmash admitted that he was involved in an illegal credit card scheme and did some gambling which he spoke of in terms of a "business." Sharon Smetherman, principal of Kehoe-France elementary school, where Neesa was a student, testified that Mr. Elremmash called her to say that he did not want Neesa to recite the pledge of allegiance to the flag. Mr. Elremmash wanted Neesa physically removed from the room every morning when the pledge was being recited. Mr. Elremmash also came to school to physically remove Neesa during a Christmas pageant while the Nativity was being 399 performed and returned her just in time for her to go out on stage to play her part as a flower in the Nutcracker which followed the Nativity. Ms. Smetherman testified that Mr. Elremmash was insistent that Neesa not participate in anything that had any nationalism, patriotism or religious aspects whatsoever. Mr. Elremmash admitted that he had a felony conviction for fraudulent use of a social security number which he used to falsely obtain a credit card and that his application for United States citizenship was withheld because of that incident. He also stated that, although he gambled and drank alcohol in the past, he gave those activities up when he became a father. He explained that he is a Moslem and wants his daughter to be exposed to his culture. Dana Mesraty testified that she was married to a good friend of Mr. Elremmash's. Ms. Mesraty further testified that Ms. Schultz stated that she returned to New Orleans from Minnesota because her future husband was on drugs. Ms. Schultz denied making that statement and testified that she tried to reconcile with Mr. Elremmash because it would be best for Neesa. Ms. Schultz further testified that Neesa is being exposed to her heritage and is voluntarily abiding by the dietary restrictions of her father's religion. On appeal Mr. Elremmash argues that the trial court's judgment changing custody was based on cultural bias as reflected by Ms. Schultz's attorney throughout the hearing. We have carefully examined the transcript and find no evidence that the court's decision was biased. There are several incidents in which the attorneys became zealous in their representation of their clients. However, the court remained neutral and showed great restraint and fairness to both sides. That argument is meritless. The extensive reasons for judgment written by the trial court satisfy us that thoughtful consideration was given to the matter. While acknowledging that cultural differences exist, the court gave no indication that the decision was in any way biased. The standard used by the trial court was "the best interest of the child." In part those reasons state: The Court was impressed by Mrs. Peterson's testimony. The Court believes that Mrs. Peterson tried to make the joint custody arrangement work. The Court believes that Mrs. Peterson is much more flexible than Mr. Elremash (sic). Mrs. Peterson is now remarried to a physician. The Court believes that Mrs. Peterson and her new husband can provide a stable homelife for Neesa. The Court perceived Mr. Elremash to be a very rigid individual. The Court's perception was supported by the testimony of several witnesses. Dr. Jantzen, called by the defendant, testified that the parties have developed a pathological relationship since the divorce. He testified that there is considerable animosity and disagreement between the parties. In Dr. Jantzen's report dated July 11, 1988 he stated "the pathology in the relationship is fueled to a greater extent by Mr. Elremash." He also stated, "Mr. Elremash is much more critical." Sharon Smetherman, plaintiff's witness, is the principal of the lower school at Kehoe France. She testified that Mr. Elremash continuously called the school and objected to Neesa participating in the Pledge of Allegiance. She testified that not only did Mr. Elremash not want Neesa to say the pledge but he did not even want her in the classroom when the pledge was being said. Ms. Smetherman also testified that on the day of the school Christmas play, Mr. Elremash yanked Neesa out of the play at the last moment and refused to allow her to participate. The Court firmly believes that Mr. Elremash's behavior was inappropriate and caused the child to feel like an outcast. Mr. Elremash testified very adamantly that he wanted Neesa raised in the Moslem religion. Mrs. Peterson testified that she would prefer that Neesa be raised as a Catholic. The Court believes that if awarded sole custody of Neesa, Mrs. Peterson will continue to allow Neesa to explore her heritage. 400 Mr. Elremash is not an American citizen. He appears to be extremely critical of American ways, yet he chooses to live here. Mr. Elremash has been convicted of a felony and has a history of gambling. Dr. Jantzen, in his July 1988 report, states, "Mr. Elremash appears, at times to be unwilling to function within the rules of society." Mrs. Peterson has expressed a concern that Mr. Elremash will take Neesa to Libya and she will never see the child again. The Court feels this is a valid concern. Mr. Elremash has applied for U.S. Citizenship; but it may not come easily in light of his felony conviction. Mr. Elremash's future in this country is speculative at best. The State Department has issued a travel advisory stating that it is not safe for American citizens to travel to Libya. Despite this warning, Mr. Elremash smuggled Neesa into Libya by hiding her in the automobile and returned the child six weeks later than the custody schedule allowed. The Court feels that Mr. Elremash exercised very poor judgment and that he might do the same thing again if given the opportunity. It was the Court's impression that Mrs. Peterson has the child's best interest at heart. The Court believes Mrs. Peterson wants Neesa to experience life in a carefree manner. On the other hand, the Court believes Mr. Elremash wants Neesa to be raised in a very restricted manner. This Court does not want this child to be caught in the crossfire any longer. Accordingly, it is in the best interest of Neesa that her mother have sole custody. The Court believes that it is important for Mr. Elremash to be a part of Neesa's life. Dr. Jantzen stated that Neesa is very much attached to her father. He believes that "Neesa will suffer some separation anxiety but that is not to say she would not overcome it." Therefore, the Court feels that Neesa needs to be enrolled in a program of counseling or therapy to address these issues. In altering the custody arrangement whether it is joint or sole, the best interest of the child should be considered uppermost. Bergeron v. Bergeron, 492 So. 2d 1193 (La. 1986). The trial court is vested with much discretion in child custody matters. Moffatt v. Moffatt, 508 So. 2d 851 (La.App. 5 Cir.1987) writ den. 512 So. 2d 1180 (La. 1987). We believe the trial court expressed valid, supportable reasons for altering the joint custody agreement which do not suggest cultural bias. We find no abuse of the trial court's discretion. Consequently, we affirm the judgment. All costs of this appeal are assessed to appellant. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618629/	615 So.2d 1042 (1993) STATE of Louisiana v. David BURTON. No. 92 KA 0329. Court of Appeal of Louisiana, First Circuit. March 5, 1993. 1043 Washington Parish Dist. Atty., William J. Burris, Franklinton, William R. Campbell, Jr., New Orleans, for plaintiff-appellee State of La. James Looney, Covington, for defendant-appellant David Burton. Before LOTTINGER, C.J., and FOIL and FOGG, JJ. LOTTINGER, Chief Judge. David Burton was charged by bill of information with two counts of distribution of cocaine. La.R.S. 40:967(A). He pleaded not guilty and, after trial by jury, was convicted as charged. The trial court sentenced him on each count to serve a term of fifteen years imprisonment at hard labor. Defendant has appealed, urging two assignments of error. FACTS On April 27 and 28, 1990, Sgt. Mike Edwards of the Bogalusa City Police Department arranged surveillance of a room registered to defendant at the Delmar Motel in Bogalusa. Sgt. Edwards had seen defendant before and was familiar with him. Using a nightscope (which enhances the available light) and binoculars, Sgt. Edwards watched the room each night starting at about 8:00 p.m. Backup officers were available to stop any suspects who would leave the motel area. On the first night, Edwards observed Theresa Gaskins and Greg Wallace drive into the parking lot. Edwards was familiar with Gaskins and Wallace as being drug dealers. Wallace got out of the vehicle and went up to defendant's room. Before Wallace got to the door, defendant came out. Wallace then gave defendant some money, and defendant gave Wallace a small packet ("about the size of the thumbnail or maybe a little smaller") of white powder. Wallace returned to the car and, after a brief wait, he and Gaskins drove out of the parking lot. About half a block away, Captain Dorman Pritchard stopped the vehicle. Pritchard found syringes (apparently unused) in the frontseat area. He also found a compact 1044 mirror, which appeared to have a white powder on it. Later scientific testing revealed the powder was not a controlled dangerous substance. Pritchard observed what appeared to be a fresh needle mark on the inside of Wallace's elbow; another officer found a syringe containing what appeared to be fresh blood stuck in Wallace's hair under his cap. A forensic scientist employed with the New Orleans Police Department testified that he tested the syringe and found a small amount of cocaine in it. Later that same evening, Edwards observed two other known drug dealers go into defendant's room and leave. He was unable to see anything which happened in the room. Edwards also observed other people he did not know go into the room and leave. No further stops were made because backup officers were unavailable. On April 27th, Edwards also searched a closet-type area located where the buildings met. Defendant had been observed going into this area, which was accessible to the public. In the area, the motel stored mops, brooms, and buckets. During his search, Edwards found a paper bag which contained six syringes which were still in packaging. On the next evening, Edwards renewed his surveillance. He observed a man and woman walk into the parking lot. The man stopped behind a restaurant, and the woman went to defendant's room. Defendant came out of the room and walked to the closet area. After a minute or two, defendant returned to his room. When he opened the door, the woman came out. Edwards then observed defendant give the woman what appeared to be a cut corner of a plastic bag with a white substance in it. The woman rejoined the man and handed him the packet. As the couple walked away, Detective Ed Gomez stopped them. Gomez found a plastic packet of suspected cocaine held tightly in the man's hand. The woman was identified as being Debra Adams. Officer Joe Culpepper transported Adams to the police station. Prior to having Adams ride in the back of his patrol car, Culpepper had removed the backseat and removed the debris. During the trip, he noticed Adams moving around in the backseat. After he secured Adams in the station, Culpepper searched his backseat. When he removed the seat, he found a small plastic packet of white powder, a whole cigarette, and a broken cigarette lying together directly under where Adams had sat. Subsequent testing at the Louisiana State Police Crime Laboratory determined that the small packet found under the seat and the small packet found in the man's hand both contained cocaine.[1] Early on the morning of April 29th, Edwards secured a search warrant and searched defendant's room. Officers involved in the search found sixteen cut corners of plastic bags in a tape case next to the bed. The closet area again was searched. Edwards found some cut corners with powder residue in them. The amount of powder was insufficient to test. In connection with his testimony, Edwards explained how cocaine is packaged and used. Drug dealers commonly clip corners from plastic bags for use to store a small quantity of cocaine which is then sold in the small packet. Cocaine users can either snort cocaine powder or melt it down in water, using a cigarette butt as a filter. The liquid solution is then injected into the body using a syringe. The process of turning the powder into a liquid takes "[j]ust a matter of seconds." Edwards also explained that cocaine can be melted into a solid "crack" form, which is smoked in a pipe. ADMISSION OF CERTIFICATE OF ANALYSIS REPORT In the first assignment of error, defendant asserts that the court erred when it admitted a certificate of analysis report. Defendant maintains the State's notice of its intent to introduce the report was improper under La.R.S. 15:500 and 15:501 because 1045 the wrong certificate of analysis report was attached to the notice in this case. La.R.S. 15:499 authorizes criminalistics laboratories to "make proof of examination and analysis of physical evidence" by use of a certification which includes certain specified information. In criminal cases, the trial court is required to receive as evidence any certificate, issued in accordance with La.R.S. 15:499, as "prima facie proof of the facts shown thereon, and as prima facie proof of proper custody of the physical evidence." La.R.S. 15:500. For the State to be able to introduce the certificate into evidence, it must comply with the following requirements: The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than ten days prior to the commencement of the trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate. La.R.S. 15:501(A) (emphasis added). After receiving the State's notice, if the defendant desires to cross-examine the technician who prepared the report, he must request a subpoena for the person who performed the examination or analysis at least five days prior to the commencement of the trial. La.R.S. 15:501(B). See generally State v. Landry, 583 So.2d 911, 912-13 (La.App. 1st Cir.1991). The statutes do not relieve the State of its burden to go forward with proof of the elements of the crime. See City of Shreveport v. Burroughs, 511 So.2d 782, 783 (La.App. 2d Cir.1987). Absent the provisions of the statute, the State would be required to present the testimony of the technician who analyzed the substance. The purpose of the statutes has been described as follows: ... to inform a defendant that such a certificate exists and that it will be used against him. It prevents any confusion or surprise, and it aids the defendant in preparing an adequate defense. It also relieves crime lab personnel from the necessity of appearing at trial when there is no real question or issue surrounding the validity of the analysis performed by the crime lab technician. State v. Mims, 524 So.2d 526, 536 (La.App. 2d Cir.), writ denied, 531 So.2d 267 (La. 1988). Additionally, La.R.S. 15:501 assures the criminal defendant's constitutional right of confrontation. See La. Const. art. I, § 16. Over four months before the trial date, the prosecution in this case gave defense counsel a document entitled "Notice Under R.S. 15:499," which stated: "Notice is hereby served upon the defendant that the state intends to introduce the certificate of the State Police Crime Laboratory, a copy of which is attached, as evidence pursuant to R.S. 15:499." Attached to the notice is a scientific analysis report from a separate cocaine arrest of defendant which obviously is unrelated to the instant case. (According to the attached report, the cocaine was submitted on a date before the instant offenses occurred.) At the trial, when the State introduced the correct report, defendant objected and argued he had not received notice as required by La.R.S. 15:499 because the wrong certificate was attached to the State's notice. Counsel admitted that he had seen the certificate applicable to the instant case; but he argued that, in order to preserve defendant's right to confront the witnesses against him, the State was required to comply with the provisions of the statute. Concluding the State's failure to attach the appropriate report was an inadvertent clerical error, the court overruled defendant's objection. Although we recognize the State's failure to attach the correct report was not in compliance with the requirement of La.R.S. 15:501(A), we find the error in this case is not reversible. We find no indication defendant was prejudiced by the State's error. See La.Code Crim.P. art. 921. The correct certificate was not attached to the State's notice, but defendant knew the appropriate certificate existed and had received formal notice of the State's intent to introduce into evidence the certificate relevant to the case. See Mims, 524 So.2d at 536. Upon receiving the incorrect certificate, it was incumbent upon counsel to 1046 object at that time. See La.Code Crim.P. art. 841. The assignment of error is without merit. SUFFICIENCY OF THE EVIDENCE In the second assignment of error, defendant claims the State's evidence of his guilt was insufficient. Specifically, defendant argues the State's evidence on count two was insufficient because the State's only evidence the substance involved in count two was cocaine was a crime laboratory report which should not have been admitted, as argued in connection with assignment of error number one. For the reasons discussed in connection with our treatment of the first assignment, we also reject this argument. Additionally, defendant asserts the State's evidence of identification on both counts was insufficient because defendant was not identified in court by any of the witnesses. For the reasons discussed below, we also reject this claim. The identity of a defendant as the perpetrator of a crime is one of the elements of the crime that must be proved by the State beyond a reasonable doubt. See State v. Johnson, 461 So.2d 673, 674 (La. App. 1st Cir.1984). However, identification can be inferred from all the facts and circumstances that are in evidence. See United States v. Weed, 689 F.2d 752, 754 (7th Cir.1982) (court finds sufficient evidence of identification although none of the witnesses were asked to identify the accused in court; attorneys interspersed references to defendant's name with references to "the defendant"; none of the witnesses noted that defendant was not the same person they had detained). See also United States v. Morrow, 925 F.2d 779, 781 (4th Cir.1991) (court implied the evidence was sufficient to permit the inference that the defendant on trial was the person who had committed the crime without considering the witnesses' response to the court's request that they point to the defendant in court; the arresting officer in this narcotics offense knew defendant to be a drug user and one officer identified defendant by name in answer to a question on cross-examination); United States v. Doherty, 867 F.2d 47, 67 (1st Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989) (court noted that, although the witnesses were not asked to make an in-court identification, the witnesses did not deny defendant's identity and defendant had the same name and nickname as the person indicted and about whom the witnesses spoke). In the instant case, Sgt. Edwards testified that he had seen "David Burton" before and knew who Burton was. Additionally, he responded affirmatively when the prosecutor asked, "Do you see Mr. Burton in court today?"[2] He then referred to Burton by name throughout his testimony. On more than one occasion, defense counsel referred to the person called Burton by Sgt. Edwards as being his "client." Additionally, identification was not argued to the jury during the closing arguments. Accordingly, viewing the evidence in the light most favorable to the prosecution, we find a rational trier of fact could conclude the State proved defendant's identity as the perpetrator of the crimes beyond a reasonable doubt. The assignment of error is without merit. PATENT ERROR In reviewing the record for patent error, we have found error in the sentences. The trial court did not give defendant credit for time served. See La.Code Crim.P. art. 880. Accordingly, we amend the sentences to reflect that defendant is to be given credit for any time served prior to execution of his sentences. See State v. Greer, 572 So.2d 1166, 1172 (La.App. 1st Cir.1990). Resentencing is not required. However, we remand the case and order the district court to amend the commitment and the minute entry of the sentencing to *1047 reflect that defendant is to be given credit for time served. Therefore, for the above reasons, the convictions are affirmed, the sentences are amended, and this matter is remanded. CONVICTIONS AFFIRMED; SENTENCES AMENDED; REMANDED WITH ORDER. NOTES [1] The scientific analysis of these two packets was introduced through a copy of the crime lab's report. In assignment of error number one, defendant asserts the report was improperly introduced. [2] In its brief, the State implies that the witness gestured and indicated defendant when responding to the question. However, the record does not reflect that any gesture was made. This court has no authority to review evidence not contained in the trial court record. See State v. Smith, 447 So.2d 565, 569 (La.App. 1st Cir.1984).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618633/	38 So.3d 474 (2010) Mark PALANDRO for and on Behalf of Himself and All Other Current And Former Employees Of The Schools Within The University Of Louisiana System v. The BOARD OF SUPERVISORS FOR The UNIVERSITY OF LOUISIANA SYSTEM and The University of Louisiana at Lafayette. No. 2009 CW 1203. Court of Appeal of Louisiana, First Circuit. April 28, 2010. 475 Brandon J. DeCuir, Winston G. DeCuir, Jr., Baton Rouge, LA, Attorneys for Defendant/Relator, The Board of Supervisors for the University of Louisiana System and the University of Louisiana at Lafayette. Kenneth H. Hooks, III, H. Price Mounger, III, Michael T. Beckers, Baton Rouge, LA, Attorneys for Plaintiff/Respondent, Mark Palandro. Before PARRO, KUHN, AND McDONALD, JJ. McDONALD, J. In this writ application, the Board of Supervisors for the University of Louisiana System on behalf of its member institution, the University of Louisiana at Lafayette (collectively the "Board" or 476 "defendants"), seeks review of the trial court's judgment denying its peremptory exception raising the objection of no cause of action as to the Fair Labor Standards Act ("FLSA") wage and retaliation claims asserted by plaintiff, Mark Palandro. For the reasons that follow, we deny the writ application. BACKGROUND The petition provides the following allegations. The Board hired Mark Palandro to work as a teacher and instructor at the Marine Survival Training Center. Under his contract with the Board, Palandro was classified as an hourly employee, paid on a monthly basis, required to clock in and out, and required to keep track of his time when he was working away from his regular workplace. Palandro claims defendants did not pay him for all of the hours he worked because of the rounding method defendants used when calculating payroll.[1] Palandro asserts that the defendants' conduct violates the wage and hour provisions of the FLSA. Subsequently, Palandro supplemented his petition to add a retaliation claim against the defendants.[2] The Board filed an exception raising the objection of no cause of action as to Palandro's claims seeking to enforce provisions of the FLSA. The Board urges that Louisiana's sovereign immunity acts as a bar to Palandro's seeking to enforce provisions of the FLSA, unless Louisiana expressly consents to be sued under the federal FLSA statute, which consent the Board asserts Louisiana has not given. Conversely, Palandro contends that Louisiana has constitutionally consented to the suit. Palandro urges that an employment relationship is contractual in nature and Louisiana Constitution, Article XII, Section 10(A) waives the State's sovereign immunity in suits based in contract and tort. On May 11, 2009, the trial court rendered judgment denying the exception of no cause of action without assigning reasons. Judgment was signed on May 27, 2009. The Board presents a single assignment of error. We granted certiorari to determine whether Louisiana Constitution, Article XII, Section 10 establishes Louisiana's consent to be sued in state court under the facts of this case. STANDARD OF REVIEW The reviewing court conducts a de novo review of a trial court's ruling sustaining or denying an exception of no cause of action, because the exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Gobert v. S.W.D.I., L.L.C., XXXX-XXXX (La.App. 1 Cir. 5/5/09), 13 So.3d 608, 611. The burden of demonstrating that the petition states no cause of action is upon the mover. Ramey v. DeCaire, XXXX-XXXX (La.3/19/04), 869 So.2d 114, 119. In reviewing the petition to determine whether a cause of action has been stated, the court must, if possible, interpret it to maintain the cause of action. Walsh & Bailey v. Lofaso, XXXX-XXXX (La.App. 1 Cir. 6/9/06), 938 So.2d 999, 1001-02. 477 DISCUSSION In light of the United States Supreme Court's decision in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), the Board urges that Louisiana must explicitly consent to suit under the FLSA. Post-Alden, the Board asserts that Louisiana Constitution, Article XII, Section 10(A)'s waiver of immunity in contract suits is not sufficient to establish Louisiana's explicit consent to a suit seeking to enforce FLSA provisions against the State brought in state court. Our review of the Board's assignment of error begins with a review of Alden. In Alden, a group of probation officers filed suit against their employer, the State of Maine, alleging that Maine had violated the overtime provisions of the FLSA. Alden, 527 U.S. at 711, 119 S.Ct. 2240. The Maine Supreme Court affirmed the trial court's judgment dismissing the suit on the basis of sovereign immunity. Alden, 527 U.S. at 712, 119 S.Ct. 2240. Because there was a split among the states as to whether the FLSA was a voluntary federal statute, the United States Supreme Court granted certiorari to determine the constitutionality of the provisions of the FLSA purporting to authorize private actions against states in their own courts without regard for consent. Id. The Supreme Court held that states' consent to suit was required in a private FLSA action. To determine if Maine had consented to be sued in its own courts under the FLSA, the Supreme Court examined whether Maine had consented to the suit under the standard that Maine uses to waive its sovereign immunity. As to Maine's standard for waiving immunity, Maine regards immunity from suit as one of the highest attributes inherent in the nature of sovereignty. Alden, 527 U.S. at 757, 119 S.Ct. 2240. As to how Maine consents to suit, the Supreme Court found that Maine adheres to the general rule that a specific authority conferred by an enactment of the legislature is requisite if the sovereign is to be taken as having shed the protective mantle of immunity. Alden, 527 U.S. at 757-58, 119 S.Ct. 2240. In deciding Alden, the Supreme Court noted that the Alden plaintiffs did not attempt to establish waiver of immunity under Maine's legislative standard. Alden, 527 U.S. at 758, 119 S.Ct. 2240. Instead, the Alden plaintiffs argued that Maine had discriminated against federal rights by claiming sovereign immunity from this statute. Id. The United States Supreme Court disagreed, finding no evidence that Maine manipulated its immunity in a systematic fashion to discriminate against federal causes of action. Id. To the extent Maine had chosen to consent to certain classes of suits while maintaining its immunity from others, the Supreme Court found that Maine had done no more than exercise a privilege of sovereignty concomitant to its constitutional immunity from suit. Id. In the present matter, we must determine whether Louisiana constitutionally waived its sovereign immunity and consented to suit seeking to enforce provisions of the FLSA in a contract dispute. To do this, Alden directs us to determine and apply the standard Louisiana uses to waive its sovereign immunity to a suit brought against the State in state court. Article XII, Section 10[3] of the Louisiana Constitution of 1974 provides Louisiana's 478 constitutional standard for waiving sovereign immunity and consenting to suit. Article XII, Section 10(A) states, "Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property." In addition to waiving immunity in contract and tort actions, Article XII, Section 10(B) provides that the legislature "may authorize other suits against the state, a state agency, or a political subdivision." Under Louisiana's constitutional scheme for waiving sovereign immunity, the waiver of immunity provided in Sections 10(A) and (B) is not absolute. Article XII, Section 10(C) gives the legislature the authority to limit the extent of liability, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages in suits authorized against the state. Finding that Louisiana has constitutionally waived immunity from suit and liability in contract, we must now determine whether Palandro's wage and hour claim, which alleges violations of the FLSA, falls within the constitutional waiver of immunity in contract suits. In West v. State through State Superintendent of Public Ed., 324 So.2d 579, 580 (La.App. 1 Cir.1975), on an exception of no cause of action, this Court considered whether a claim under an employment contract, seeking to enforce FLSA requirements, could be brought against a special state agency under the Louisiana Constitution of 1921. The 1921 constitutional provision governing suits against the State empowered the legislature to enact special or general laws or resolutions to waive the immunity from suit and liability of the state, parishes, municipalities, boards, agencies, and other listed governmental entities. La. Const. Art. III, § 35 (1921). Article XIX, Section 26 of the 1921 Constitution withdrew the State's consent to suits and legal proceedings for ten "special agencies of the state," with the expressed exception for suits for the enforcement of contracts entered into by any of the special agencies or for the recovery of damages for the breach of such contracts. La. Const. Art. XIX, § 26 (1921). The employer in West was one of the special agencies listed in the 1921 Constitution. West, 324 So.2d at 581. The West plaintiffs were husband and wife and were "cottage parents" in a "half-way house" run by one of the special agencies. West, 324 So.2d at 580. Mrs. West alleged that she had an employment contract with the special agency and was paid monthly based on a 40-hour work week. Mrs. West filed a contract action against the special agency, complaining that her employment contract required her to work more hours than the hours for which she was paid. Id. 479 Mr. West did not have an explicit employment contract with the special agency. However, he alleged that under the terms of his wife's employment contract, he was required to live on the premises with Mrs. West, assist her in her performance of her duties, and work the same hours as his wife, but was not paid any compensation. Id. In deciding whether the West petition asserted an action in contract, this Court deemed it elementary that the relationship of employer-employee is contractual in nature. West, 324 So.2d at 581. Since the petition alleged an employer-employee relationship as the basis for the claim, this Court concluded that the West plaintiffs alleged a cause of action in contract. Id. Specifically, this Court found that the West petition alleged an express contract of employment between Mrs. West and the special agency and an implied contract of employment between Mr. West and the special agency. Id. As to whether the FLSA applied to the employment contracts, this Court found pertinent the principle that laws in existence when a contract is confected become part of the agreement and are incorporated therein as though expressly forming part of the covenant. Id.; see also La. C.C. art. 2054. Moreover, this Court stated that the Louisiana Supreme Court has expressly held that when an agreement of employment exists or comes into being, the provisions of the FLSA become part of the contract as fully as if the provisions of the law are incorporated therein by the parties. Id., citing Johnson v. Anderson-Dunham Concrete Co., 212 La. 276, 282, 31 So.2d 797, 799 (1947).[4] Therefore, this Court concluded that the wage and hour provisions of the FLSA were incorporated into the West plaintiffs' employment contracts. Accepting the allegations in the petition as true, this Court concluded that the petition stated a cause of action under the wage and hour provisions of the FLSA. Id.[5] The Board urges that West is distinguishable because the case was decided under Louisiana's 1921 constitution. We find the Board's argument unpersuasive. The 1921 constitutional standard for waiving sovereign immunity required a legislative act authorizing suit against the State, with the exception of actions brought for the enforcement of contracts entered into by the listed special agencies. In contrast, the current constitution provides a general waiver of immunity from suit and liability in contract and tort, subject to the limitations and restrictions the legislature may impose pursuant to Article XII, Section 10(C). Louisiana's current constitution also maintains the legislature's ability to authorize other types of suits against the State, subject to the Article XII, Section 10(C) limitations. Accordingly, we find that the current constitution expands the right to sue, rather than limiting it more than the prior constitution had done. See Adams v. City of Baton Rouge, 95-2515 (La.App. 1 Cir. 4/30/96), 673 So.2d 624, 630, writs denied, 96-1491 and 96-1492 (La.9/20/96), 679 So.2d 439, citing Hargrave, "Statutory" and "Hortatory" Provisions of the Louisiana Constitution of 1974, 43 La.L.Rev. 647, 651 (1983). Therefore, we find that the distinction made by the Board between the current and former 480 constitutions is not determinative of the issue presented in this matter. The Board also points out that West was decided prior to the United States Supreme Court's holding, in Alden, that a private FLSA action against a state in state court requires the state's consent. The Board urges that the proper analysis to use to determine whether Article XII, Section 10 evidences Louisiana's consent is set out in Kuebel v. Dept. of Wildlife and Fisheries, XXXX-XXXX (La.App. 4 Cir. 4/15/09), 14 So.3d 20, writ denied, XXXX-XXXX(La.9/4/09), 17 So.3d 964. In Kuebel, the Fourth Circuit examined the provisions in Louisiana Constitution, Article XII, Section 10 and the pertinent provisions of the Louisiana Workers' Compensation Act (the "LWCA") in order to determine if Louisiana consented to be sued in its own courts by individuals seeking recovery under the Jones Act.[6] The Kuebel court stated that, although the Louisiana Constitution mandates that the State is not immune in tort or contract, immunity is not absolute, as Article XII, Section 10 also provides that the legislature may limit the State's liability. Kuebel, 14 So.3d at 29. As to the LWCA, the Kuebel court noted that the LWCA mandates the application of the provisions of the LWCA to state employees. Moreover, the LWCA provides that the payment of compensation pursuant to the terms and conditions of the LWCA is exclusive, compulsory, and obligatory. Kuebel, 14 So.3d at 28-29. Reading Article XII, Section 10 in conjunction with the LWCA, the Kuebel court found that, although injured State employees do not have the right to bring a Jones Act claim, Louisiana has established a procedure for suits against the State by providing that injured State employees may bring claims for payment of compensation under the LWCA. Kuebel, 14 So.3d at 29. In regard to the issue before this Court, Louisiana Constitution, Article XII, Section 10(A) provides that Louisiana is not immune from suit and liability in contract. In West, this Court deemed that a claim based on an employer-employee relationship alleges a cause of action in contract. West, 324 So.2d at 581. This Court has also determined that the principle that laws in existence when a contract comes into existence are incorporated and become part of the agreement, operates to incorporate the FLSA into employment agreements. Id. While Article XII, Section 10(C) clearly empowers the legislature to limit the extent of liability, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages in suits in contract based on an employment-related wage dispute, the legislature has not enacted such legislation with respect to claims based on FLSA provisions. In Kuebel, the LWCA's mandatory, exclusive coverage and compensation provisions provided such a legislative limitation to the waiver of Louisiana's immunity in tort actions where an employee seeks recovery against Louisiana in state court under the Jones Act. However, Kuebel does not address *481 Louisiana's constitutional waiver of immunity in contract actions where an employee seeks recovery against Louisiana in state court based on the provisions of the FLSA. The Board has not shown, as was shown in Kuebel, a legislative enactment that limits or restricts an employee from asserting such a contact claim against Louisiana in state court. Moreover, in determining whether Louisiana Constitution, Article XII, Section 10 waives the State's sovereign immunity in this matter, we are bound by West and its holding that a claim based on an employee-employer relationship is contractual in nature and that the FLSA is incorporated into employment agreements. Until such time as the legislature acts to limit or exclude wage and hour claims seeking to enforce FLSA protections from the constitutional waiver of immunity from suits in contracts or otherwise limits the private remedies provided by the FLSA against the State in state courts, we conclude that Louisiana has constitutionally waived sovereign immunity in contract suits brought in state courts against Louisiana, seeking to enforce provisions of the FLSA. Based on a de novo review, we find that the petition alleges that a contract of employment existed between Palandro and the Board and that the Board failed to pay Palandro for all of the hours he worked, in violation of the FLSA. Accepting these allegations as true, we find that the petition states a cause of action in contract, seeking to enforce provisions of the FLSA. Accordingly, we find no error in the trial court's ruling and deny the writ. WRIT DENIED. KUHN, J., concurs in the denial of the writ. NOTES [1] The petition gives the following examples to illustrate how the rounding policy benefits the defendants. If an employee arrives at work and clocks in at 8:50 a.m., the bookkeeper rounds the time up to the next ¼ hour or 9:00 a.m. However, if an employee leaves for lunch at 11:55 a.m., the bookkeeper rounds the time down to 11:45 a.m. for payroll calculation purposes. Under these examples, Palandro contends an employee is effectively cheated out of 20 minutes of pay. [2] The petition also asserts a state law claim against the defendants. The state law claim is not at issue herein. [3] § 10. Suits Against the State (A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property. (B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability. (C) Limitations; Procedure; Judgments. Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered. La. Const. Art. XXII, § 10. [4] Johnson involved a wage claim dispute between an employee and a private employer. [5] Finding that sovereign immunity was constitutionally waived, the Court found it unnecessary to consider whether state sovereign immunity had been removed in this area by the effect of federal law. West, 324 So.2d at 582. [6] In Higgins v. State Through the DOTD, 627 So.2d 217 (La.App. 4 Cir. 1993), writ denied, 93-3113 (La.2/11/94), 634 So.2d 374, the Fourth Circuit had previously held that an injured state employee could bring suit against the state under the Jones Act and general maritime law in state court. Kuebel, 14 So.3d at 24. However, in light of the significant changes in federal jurisprudence and law brought by Alden, the Kuebel court declined to extend the Higgins rationale to the matter before it. Rather, the Kuebel Court examined several post-Alden maritime cases in other jurisdictions, and found that those other courts had generally interpreted Alden as disallowing suits against the state for maritime and railroad personal injuries absent the state's explicit consent. Kuebel, 14 So.3d at 26-27.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618635/	615 So.2d 94 (1992) Michael Scott REYNOLDS v. STATE. CR-90-1558. Court of Criminal Appeals of Alabama. May 29, 1992. Rehearing Denied July 24, 1992. Certiorari Quashed March 19, 1993. 95 William H. Broome, Anniston, for appellant. James H. Evans, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee. Alabama Supreme Court 1911760. MONTIEL, Judge. The appellant was convicted of sexual abuse in the first degree, in violation of § 13A-6-66, Code of Alabama 1975, as charged in the indictment. The appellant was sentenced as a habitual offender to 15 years in the state penitentiary and was ordered to pay a $5,000 fine. I The appellant first contends that the trial court erred in denying his motion for judgment of acquittal because, he says, the State failed to prove that venue was proper in Calhoun County. It is unnecessary for this court to reach the merits of the appellant's claim. The record offers no evidence that the appellant specifically objected to the State's alleged failure to prove that venue was proper. This issue is waived in the absence of an objection at trial specifically raising this issue. Kelley v. State, 568 So.2d 405, 407 (Ala.Crim.App. 1990). II The appellant also contends that he was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution, and thus that the trial court improperly denied the appellant's 96 motion for new trial based on that ground. The Supreme Court has recognized that the fundamental issue to be decided in effective assistance of counsel cases is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, at 686, 104 S.Ct. 2052, at 2064, 80 L.Ed.2d 674 (1984). Strickland identifies two components of an ineffective assistance of counsel claim: "First, the defendant must show that counsel's performance was deficient and that counsel's errors were so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that counsel's deficient performance prejudiced the defense." 466 U.S. at 687, 104 S.Ct. at 2064. The defendant must prove both prongs of the Strickland test to be successful in an ineffective assistance claim. See Williams v. State, 480 So.2d 1265 (Ala.Crim.App.1985). The appellant sets forth a number of acts or omissions on the part of his court-appointed attorney that he contends were the result of a lack of reasonable judgment and that he contends were deficient and outside the range of professionally competent assistance. First, the appellant claims that he was denied the effective assistance of counsel because his attorney failed to object under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State's use of peremptory challenges to strike the majority of the black prospective jurors on the venire. However, we can find no evidence in the record that this particular ground was ever raised in the appellant's motion for new trial. Under Strickland, "a defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." In his motion for new trial, the appellant raised the issue of ineffective assistance of counsel, but he did not specifically refer to the failure of his counsel to make a Batson objection. "Claims of inadequate representation cannot be determined on direct appeal where such claims were not raised before the ... [trial] court and there has been no opportunity to develop and include in the record evidence bearing on the merits of the allegation." Kelley v. State, 568 So.2d 405, 412 (Ala.Crim. App.1990). This issue was thus not properly preserved for review. Second, the appellant claims a lack of trial preparation and inadequate discovery on the part of his counsel. Based upon the testimony by the appellant's attorney, Mr. Vardaman, we cannot view Mr. Vardaman's trial preparation and discovery as deficient and outside the range of professionally competent assistance. Mr. Vardaman testified that he consulted with the appellant and his family a number of times. He stated that he consulted with the district attorney's office, that he interviewed potential witnesses, and that he informed the appellant of the consequences of both taking the stand in his own behalf and of the provisions of the habitual offender law. We believe the evidence clearly refutes the appellant's allegation that Mr. Vardaman failed to prepare for trial. Third, the appellant claims that his counsel was ineffective for failing to challenge the State's proof of venue. This claim has no merit. Clearly, the evidence shows that the crime occurred at Southside Elementary School in Piedmont, Alabama. It is undisputed that Piedmont is located in Calhoun County, Alabama, and a challenge of venue would have failed. The appellant's counsel was not ineffective for failing to challenge venue. Fourth, the appellant argues that his attorney was ineffective because he failed to submit proposed jury charges and because he failed to object to the trial court's jury charges. We find nothing improper in the trial court's oral jury charge. Also, because we conclude that the court's charge was proper, we find no error in the failure of appellant's counsel to object to the jury charge. Duren v. State, 590 So.2d 360, 367 (Ala.Crim.App.1990), aff'd, Ex parte Duren, 590 So.2d 369 (Ala.1991), cert. denied, *97 ___ U.S. ___, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992). Fifth, the appellant's contention that his attorney failed to fully inform him of the consequences of his failure to testify is without merit. Mr. Vardaman testified that he strongly urged the appellant to settle his case because the appellant felt strongly about not taking the witness stand. The appellant was very much aware of the choices he was making. Finally, the appellant argues that his attorney was ineffective for failing to object to various questions, comments, and arguments posed by the State. The record provides no grounds to support this argument. "Effectiveness of counsel does not lend itself to measurement by picking through the transcript and counting the places where objections might be made." Stringfellow v. State, 485 So.2d 1238, 1243 (Ala.Crim.App.1986). The record offers no evidence that the appellant was prejudiced by his counsel's failure to object to the State's questions, comments, and arguments. III The final claim brought by the appellant is that the trial court erred in using a prior convictionCC-80-85, which was a grand larceny convictionto enhance his sentence under the habitual offender law because, he argues, he was not represented by counsel at that proceeding. The appellant also avers that the trial court erred in continuing his sentencing hearing so that it could obtain the transcript of the guilty plea proceedings in case No. CC-80-85. Further, the appellant claims that the trial court erred by admitting into evidence, on the trial court's own motion and over the appellant's timely objection, the transcript of the appellant's guilty plea in CC-80-85. The State bears "the burden of proving a valid prior conviction in which appellant was either represented by counsel or waived same," before such a prior conviction can be used to enhance the appellant's punishment under the Habitual Felony Offender Act. Meadows v. State, 473 So.2d 582, 588 (Ala.Crim.App.1985). In the instant case, the State met this burden by introducing exhibit no. 1, which plainly demonstrates that the appellant, when he was pleading case no. CC-80-85, knew that he had the right to hire a lawyer to represent him, but chose instead to waive this right. Moreover, Meadows held that, "if the appellant had contended that the former conviction was invalid for enhancement purposes because of lack of representation, he would have borne the burden of presenting evidence in support thereof." The record is clear that the appellant failed to bear the burden of presenting evidence to support his contention that he was not represented by counsel at the prior proceeding. It is clear that the appellant knowingly had waived his right to an attorney in the prior conviction. Furthermore, "[G]ranting a ... continuance is a matter addressed to the trial court's discretion." Bates v. State, 574 So.2d 868, 870 (Ala.Crim.App.1990). Bates also held that a decision to continue "will not be reversed on appeal absent a showing of abuse of discretion by the trial court." In this case, the trial court continued the sentencing hearing to obtain a copy of the transcript of the guilty plea proceeding in the prior conviction. We find no abuse of discretion in this instance. The judgment of the circuit court is affirmed. AFFIRMED. All the Judges concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618638/	615 So.2d 219 (1993) Eugene C. WALWORTH, Appellant, v. Marie S. KLAUDER, f/k/a Marie Walworth, Appellee. No. 92-663. District Court of Appeal of Florida, Fifth District. March 5, 1993. 220 Roger L. Weeden, Orlando, for appellant. Jack A. Nants, Orlando, for appellee. PER CURIAM. Eugene Walworth appeals from the trial judge's order dated February 1992, which requires him to pay child support through June 1993 when the child was expected to graduate from high school, a date well past the son's nineteenth birthday. Walworth argues the order exceeds the limits of section 743.07(2), Florida Statutes (1991). We agree and reverse. Marie and Eugene Walworth were divorced in California in 1978. They have one child, David, born on November 12, 1973. Marie had the California judgment domesticated in Florida. It provided for $387.00 per month child support for David. In August of 1991, Marie petitioned to extend Eugene's child support payments through June of 1993, some seven months after David would turn nineteen years of age. The basis for the petition and proof at the hearing was that David was financially dependent upon his parents for support and would continue to be in fact dependent, until he graduated from high school in June of 1993. David was actively pursuing his high school diploma, but his graduation was delayed because he had been held back twice during elementary school. However, he was not physically or mentally incapacitated. Section 743.07(2) was revised in 1991, effective October, 1991, after this petition for modification was filed. Prior to the 1991 revision, it read: This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years; and any crippled child as defined in chapter 391 shall receive benefits under the provisions of said chapter until age 21, the provisions of this section to the contrary notwithstanding. (emphasis supplied) It presently provides: This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such a dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19. (emphasis supplied) Florida cases construing section 743.07(2) prior to the 1991 revision generally require that the child have some kind of physical or mental disorder or incapacity in order to extend a parent's child support obligations past the child's eighteenth birthday. See 221 Pitts v. Pitts, 566 So.2d 12 (Fla. 2d DCA 1990); Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978); Keenan v. Keenan, 440 So.2d 642 (Fla. 5th DCA 1983). However, in Evans v. Evans, 456 So.2d 956 (Fla. 1st DCA 1984), the First District held that it was appropriate for a court to order child support for an economically dependent child until that child attained nineteen years or graduated from high school, whichever occurred first. Evans relied upon Finn v. Finn, 312 So.2d 726 (Fla. 1975) and certified a conflict with this court's opinion in Keenan. We are bound by Keenan. We conclude that the 1991 revision to section 743.07(2) should be applied to this case rather than prior case law even though the petition for modification was filed before its effective date. There is no provision in subsection (2) of the statute that it applies only to cases filed after its effective date, unlike many statutes in the domestic relations area.[1] The thrust of the revision was to clarify the extent and scope of a parent's obligation to pay child support past age eighteen in Florida, given the various interpretations of the Florida appellate courts. In this context, subsection (2) was remedial and accordingly it can be applied to this case. See St. Johns Village I Ltd. v. Department of State, 497 So.2d 990 (Fla. 5th DCA 1986). The 1991 revision carves out a limited and specific category of teenagers for whom child support can be ordered past their eighteenth birthdays. The child must be less than nineteen years of age and be sufficiently far along in high school so as to graduate before his or her nineteenth birthday. Children who have early-in-the-year birthdays and who will turn nineteen before a June graduation, are entitled to no support during their eighteenth year, even though they are in need, in school, and "on track." Children in David's situation who were held back a year or two, but who are on course to graduate late, are similarly disadvantaged. Under the terms of this statute they are not entitled to support after their eighteenth birthday. Because of the express wording of this statute, we are compelled to reverse the award of child support to David past his eighteenth birthday. However, the effect of the statute on support for various groups of dependent eighteen-year-old high school students appears to us as potentially discriminatory and arbitrary.[2] A high school diploma in this day and age has become an essential for self-support in contemporary society. It is difficult to understand why teenagers who are behind their age group, due to circumstances beyond their control, or ones who have a nineteenth birthday early in the year do not merit support during their eighteenth year of life, as is now provided for other eighteen-year-olds. In fact, young people, like David, may need the additional year of financial assistance more than their average or above-average contemporaries. Accordingly, we reverse the judgment appealed, but we certify[3] to the supreme court the following as a question of great public importance: DOES SECTION 743.07(2), FLORIDA STATUTES (1991) VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FEDERAL AND STATE CONSTITUTIONS BY DENYING CHILD SUPPORT FOR 18 YEAR OLDS IN HIGH *222 SCHOOL WHO ARE NOT REASONABLY EXPECTED TO GRADUATE BY THEIR 19TH BIRTHDAYS, BUT PERMITTING SUCH SUPPORT FOR THOSE 18 YEAR OLDS WHO ARE SLATED TO GRADUATE BEFORE ATTAINING 19 YEARS OF AGE? REVERSED and REMANDED; QUESTION CERTIFIED. GOSHORN, C.J., and W. SHARP, J., concur. GRIFFIN, J., concurs specially with opinion. GRIFFIN, Judge, concurring specially. I agree with the result reached by the majority. I am not of the view, however, that the statute's limited extension of support only to those dependent high school students expected to graduate before the age of nineteen is an unconstitutional deprivation of due process or a denial of equal protection. NOTES [1] See, e.g., § 61.075, Fla. Stat. (1989). [2] For example, a two-year statute of limitation in which to bring a paternity or child support action imposed on certain illegitimate children was held to violate the equal protection clause because it denied paternal support to certain illegitimate children to which the identical right was given to legitimate children. Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983). An equal protection violation was found in Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980), because widowers were required to submit proof of dependency before entitlement to work-related benefits of a deceased spouse, while widows faced no such requirement. At a minimum, legislation must be rationally related to a legitimate state interest. City of Cleburne v. Celburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). It seems impossible to find any state interest in denying certain teenagers an opportunity to gain the necessary education to become self-supporting. [3] Fla.R.App.P. 9.030(a)(2)(A)(v).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618601/	615 So. 2d 750 (1993) John Dale HEINZ, Jr., Appellant, v. Lawrence M. WATSON, Jr., et al., Appellees. No. 92-1270. District Court of Appeal of Florida, Fifth District. February 26, 1993. Rehearing Denied March 29, 1993. 751 Sheldon D. Stevens of Stevens, Peters & Greenfield, P.A., Merritt Island, for appellant. Charles T. Wells of Wells, Gattis, Hallowes & Carpenter, P.A., Orlando, for appellees. DAUKSCH, Judge. Appellant, John Heinz, timely appeals a final order dismissing his action against appellees, Lawrence Watson, Esquire and Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., for failure to prosecute. The record shows that appellant filed an amended complaint for malpractice against appellees on April 27, 1990. Appellees filed a motion to dismiss for failure to state a cause of action. The trial court denied the motion giving them 20 days from the date of its order to answer the complaint. Appellees answered the complaint on October 10, 1990 asserting as affirmative defenses appellant's negligence and the statute of limitations. Appellant filed a motion for mediation conference on April 25, 1991. On January 28, 1992, appellees moved to dismiss appellant's complaint for failure to prosecute alleging that there had been no record activity designed to move the case forward to a conclusion on the merits for more than one year. Appellees alleged that appellant had not filed his motion for mediation conference in good faith because he had failed to schedule a hearing on the matter. A hearing was held on appellees' motion to dismiss. Regarding his intent in filing the motion for mediation conference, appellant's attorney argued: MR. STEVENS: Judge, I filed that with the idea of having a mediation. I contacted Mr. Wells. I will state as an officer of this Court and will be sworn if the Court wants me to for the Record, that I made contact with Mr. Wells after this. It was determined that we would take the ex-wife's deposition. We talked about going to Connecticut or bringing her down here. I have probably 12 phone calls to the ex-wife over the next seven or eight months and I have the record here with me today. That's all the ones that are highlighted to show that I made many attempts to get her down here and talk to her. 752 I have a motion before the Court today to have a subpoena authorizing an attorney to issue a subpoena up there. That is not activity which any court has determined to be passive. This would be something of first impression for this Court. To determine a motion to set a mediation would be something that wouldn't leave it. I talked to Mr. Wells and it was decided that was the one thing we needed to do and I have been working on that. I have the right to rely upon the rules in filing a pleading. I marked my calendar and I marked my computer as to when the one year is up. Appellees' attorney argued in response that appellant had failed to file an affidavit setting forth his argument five days before the hearing as required by Florida Rule of Civil Procedure 1.420(e). Following the hearing, the trial court entered an order granting appellees' motion to dismiss and dismissing appellant's action without prejudice. The court found that appellant's motion for mediation conference was passive rather than active record activity which was not designed to and did not have the effect of moving the case to trial on the merits. The court noted that the motion had not been set for hearing and that a mediation order had not been entered. We affirm. The issue in this case is whether a motion for mediation conference is record activity within the meaning of Florida Rule of Civil Procedure 1.420(e). That rule provides: RULE 1.420 DISMISSAL OF ACTIONS * * * * * * (e) Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute. In Del Duca v. Anthony, 587 So. 2d 1306 (Fla. 1991), the supreme court set forth the test to determine whether record activity within the year is "`a mere passive effort to keep the suit on the docket.'" Id. at 1309 (citing Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972) and Gulf Appliance Distributors, Inc. v. Long, 53 So. 2d 706 (Fla. 1951). The test requires the trial court to determine whether the discovery was filed in bad faith and whether it was filed with the intent to move the case forward to a conclusion on the merits. In Del Duca, the plaintiff filed a specific and detailed request to produce and a notice of service of interrogatories to the defendants 364 days after the last record activity had occurred. The defendant moved to dismiss the action for failure to prosecute arguing that the discovery requests were not meaningful acts of prosecution. A hearing was held after which the trial court granted the defendant's motion to dismiss. The court determined that the plaintiff's discovery requests were insufficient to constitute further prosecution of the underlying wrongful death action. The court also based its dismissal upon the plaintiff's attorney's failure to appear at a previously scheduled status conference. The Second District Court of Appeal reversed the trial court finding that the discovery was sufficient record activity to bar dismissal of the action. The court noted that although the discovery was filed to avoid application of rule 1.420(e), it sought important witnesses, thereby moving the case toward a conclusion on the merits. The court also found that the discovery was not frivolous or useless and that it was not filed in bad faith. The supreme court affirmed the district court's decision. Even more recently, the supreme court in Toney v. Freeman, 600 So. 2d 1099 (Fla. 1992), expounded on what constitutes record 753 activity sufficient to withstand a dismissal for failure to prosecute as follows: ... Record activity must be more than a mere passive effort to keep the case on the docket; the activity must constitute an affirmative act calculated to hasten the suit to judgment. Eastern Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972). * * * * * We find the opinions in Norflor Construction [Corp. v. City of Gainesville, 512 So. 2d 266 (Fla. 1st DCA 1987)] and Caldwell [v. Mantei, 544 So. 2d 252 (Fla.2d DCA 1989)] to be consistent with the principle that record activity must advance a case toward resolution. As Judge Downey noted in his dissenting opinion below, "[i]n a stretch of the imagination . .. most any activity demonstrates there is life in the case and nudges it along. However, the ideal is to do something affirmative, something of substance." 591 So. 2d 200 at 202 (Downey, J., dissenting). Not every paper placed in the court file may be considered as record activity. We also find this reasoning to be consistent with the spirit and purpose of the rule. Trial judges should be encouraged to take an active role in keeping themselves informed of the cases assigned to them. We refuse to construe appropriate case management activities [trial court's request for case status report] in such a way as to give the parties leave to ignore the case for another year before dismissal is possible. Such a construction would thwart the purpose of case management and the purpose of the rule itself to encourage prompt and efficient prosecution of cases and to clear court dockets of cases that have essentially been abandoned. Toney, 600 So.2d at 1100. In Toney, the supreme court determined that an attorney's response to the trial court's status order in which the attorney merely stated that the plaintiff had died did not constitute record activity within the meaning of rule 1.420(e). The court emphasized that the attorney's response did not move the case forward towards disposition but merely attempted to explain the delay in prosecution. The court remanded the case to the district court, however, to permit it to address the issue of whether good cause was shown for failure to prosecute. In accordance with the supreme court's reasoning in Toney and in Del Duca, we find that the trial court's dismissal of appellant's malpractice action in the present case for failure to prosecute is correct for several reasons. First, a motion for mediation conference, standing alone and without any follow-up activity during the subsequent six-month period, is not record activity implemented to advance the case forward to a conclusion on the merits. If appellant's attorney had set the matter for hearing and had proceeded forward with mediation, dismissal of the case would not have been justified. A notice of hearing is record activity within the meaning of rule 1.420(e). Jones v. Garcia, 536 So. 2d 277 (Fla. 2d DCA 1988); Breeding v. Yellow Cab Co., Inc. of St. Petersburg, 505 So. 2d 655 (Fla. 2d DCA 1987); Grooms v. Garcia, 482 So. 2d 407 (Fla. 2d DCA 1985). Second, even though the trial court found that appellant's motion for mediation conference was not filed in bad faith, it is apparent from the record that his attorney had no intention of pursuing mediation as a possible alternative to resolving the case through litigation. Although he argued at the hearing that he had filed the motion in good faith, his subsequent actions or lack thereof do not suggest that he filed the motion as an affirmative act to hasten the suit to judgment but rather suggest that he passively filed it to keep the case on the docket. His failure to present any evidence at the hearing on the motion to dismiss further supports this conclusion. The attorney's action in this instance may properly be characterized as the manifestation of "an intention to act," but not actual record action. Norflor Construction Corp. v. City of Gainesville, 512 So. 2d 266 (Fla. 1st DCA 1987). Finally, the trial court's dismissal of appellant's case should be affirmed because appellant failed to show good cause in writing at least five days before the hearing on *754 the motion to dismiss why the action should remain pending. Appellant's failure to show good cause before the hearing in compliance with rule 1.420(e) warrants a dismissal of the action. Govayra v. Straubel, 466 So. 2d 1065 (Fla. 1985); Golden Triad Carriers, Inc. v. Paco American Corp., 553 So. 2d 247 (Fla. 3d DCA 1989); Martinez v. Fuenmayor, 533 So. 2d 935 (Fla. 3d DCA 1988); Hirsch v. Muldowney, 470 So. 2d 766 (Fla. 3d DCA 1985). AFFIRMED. PETERSON and DIAMANTIS, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618723/	200 N.W.2d 518 (1972) STATE of Iowa, Appellee, v. Russell Eugene PARKEY, Appellant. No. 125. Supreme Court of Iowa. September 19, 1972. Oscar E. Jones, Des Moines, for appellant. Richard C. Turner, Atty. Gen., Allen J. Lukehart, Asst. Atty. Gen., and Ray Fenton, County Atty., for appellee. PER CURIAM: Defendant appeals from conviction and sentence for robbery with aggravation in violation of Code sections 711.1 and 711.2. We affirm. About 1:45 p.m., March 27, 1971, two men entered Sargent's Restaurant in Des Moines. After some discussion in the presence of Mrs. William Sargent, the owner, they placed their orders for food. Several minutes thereafter one of the men demanded her money. The man whom she later identified as defendant Russell Eugene Parkey pointed a gun at her. They took money from the cash register and left. Mrs. Sargent immediately reported the robbery to the Des Moines police department. Her description of defendant included the fact he was wearing a cap with a large bill and an army jacket with the sleeves cut off. At the police station Mrs. Sargent saw defendant's photograph on a bulletin board and stated he was one of the men who had robbed her. She also picked defendant out of a lineup and identified him at trial. Defendant testified he did not own a gun and denied participation in the robbery. He admitted having owned such items of clothing as described by Mrs. Sargent. Defendant contends the jury guilty verdict is contrary to the law and the evidence. He asserts the trial court erred in overruling his motion for new trial. Defendant concedes corroboration of a robbery identification witness is not required but argues his conviction based on Mrs. Sargent's testimony should not be allowed to stand. The trial court is vested with considerable discretion in passing on a motion for new trial. State v. Sanders, 260 Iowa 327, 329, 149 N.W.2d 159, 160. It is the fact-finder's function, not ours, to decide fact questions and determine the credibility of witnesses. Its finding of guilt is binding upon us unless we are satisfied it is without substantial support in the evidence or is clearly against the weight thereof. State v. Harrington, Iowa, 178 N.W.2d 314, 315; State v. Badgett, Iowa, 167 N.W.2d 680, 684; State v. DeRaad, Iowa, 164 N.W.2d 108, 109, 112. *519 In State v. Kaster, Iowa, 160 N.W.2d 856, 859, we say: "The jury evidently believed the State's witness, as it had every right to do. It is well settled that this court is powerless in a criminal case to interfere with the discretion of the jury to believe or disbelieve any witness. (Citations)." The evidence here clearly supports the jury verdict. The trial court did not err in denying defendant's motion for new trial. This conclusion finds strong support in State of Iowa v. Brafford, 121 Iowa 115, 96 N.W. 710, which is very similar factually. Defendant also contends the verdict was the result of passion and prejudice of the jury. We have examined the entire record, including the trial transcript and find no evidence which supports this contention. Having found no reversible error herein, the judgment of the trial court is affirmed. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618838/	398 Mich. 514 (1976) 248 N.W.2d 166 PEOPLE v. CUNNINGHAM Docket No. 56155. Supreme Court of Michigan. Decided December 21, 1976. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Joel B. Saxe, Senior Assistant Prosecuting Attorney, for the people. Michael J. Smith for defendant. KAVANAGH, C.J. (for reversal). This is an appeal from affirmance of defendant's conviction of second-degree murder of her husband. MCLA 750.317; MSA 28.549. We reverse. Defendant killed her husband with a rifle during a protracted family argument. Her defense was accidental shooting. A police officer was permitted to testify that in response to a call from defendant he went to the defendant's residence on January 22, 1971 where he found the defendant and her husband in the midst of a "family fight". The decedent husband had explained a pistol protruding from his pocket as one he had taken from the defendant because she had threatened to shoot him. The officer left, with the pistol, shortly after 3 p.m. At approximately 4 p.m. the same day, in 518 response to another call by defendant, police returned and discovered Mr. Cunningham's body lying in the doorway. Defendant was charged with murder. At trial, the officer testified that during his 3 p.m. visit to defendant's home the decedent "stated then that he had taken the gun from her [defendant] because she had threatened to shoot him with it". Defense counsel made a belated objection to this testimony which was overruled. At the conclusion of the first day of trial, defense counsel moved to strike the testimony as inadmissible hearsay, and moved for a mistrial, stating "we can't cross-examine the decedent on this. There's no way we can have any attack whether this is was a lie or not, and yet it's obviously extremely crucial to the decision of the jury in this case." The motions were denied. The court found the statement to be "clearly hearsay, but * * the res gestae exception to the hearsay rule may apply. * * * [T]here was an occasion which was startling enough to exert excitement and to render the statements by the deceased spontaneous and unreflecting. It was made before there was time to contrive or misrepresent." The Court of Appeals agreed, finding that: "A review of the sequence of events leading to the fatal shooting convinces us that there was a circumstantial probability that the statement was trustworthy and admissible as part of the res gestae". We are convinced that this conclusion is unwarranted and stems from a confusion of closely related concepts. 519 The use of the term "res gestae" in this context has properly been criticized. See, e.g., People v Randall, 42 Mich. App. 187; 201 NW2d 292 (1972); People v Jones, 38 Mich. App. 512, 515-516; 196 NW2d 817, 818-819 (1972). We agree with the observation of Justice LEVIN in People v Ivory Thomas, 14 Mich. App. 642, 654-655; 165 NW2d 879 (1968) (concurring): "A more neutral, and for that reason more accurate, rubric than either `res gestae' or `spontaneous exclamation' is the one adopted by Professor McCormick `excited utterance.' McCormick on Evidence, § 272, p 578. Since courts generally hold admissible under this exception the statements of an excited person * * this definitional refinement is a welcome advance toward clarity." In this case, it is clear that the decedent's statement was admitted under the "excited utterance" exception. The standards for admissibility of such statements were stated in Rogers v Saginaw B C R Co, 187 Mich. 490, 493-494; 153 N.W. 784 (1915): "The exception is based upon the fact that such exclamations, by virtue of their origin, have peculiar trustworthiness. It is well established by the authorities that the only conditions upon which such statements will be allowed in evidence are (1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it." See also, People v Ivory Thomas, supra; FRE 803(2). 520 The rationale for this exception is stated by Dean McCormick to be "the special reliability which is regarded as furnished by the excitement suspending the declarant's powers of reflection and fabrication". McCormick on Evidence (2d ed), p 704. Wigmore states: "Since this utterance is made * * during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance is taken as particularly trustworthy * * ". 6 Wigmore on Evidence (Chadbourn rev), § 1747, p 195. As Justice LEVIN recognized in People v Ivory Thomas, supra: "Freed of the difficulty that can be caused by use of the terms `res gestae' and `spontaneous,' this exception, the `excited utterance' exception, stands clear as the simple principle which Wigmore originally enunciated, i.e., when a person participates in a startling or shocking experience, the emotional excitement generated in him may render him unable or unlikely to fabricate concerning his experience. Like so much else which seeks to explain human conduct, this cannot be stated as a certainty, but it can create a circumstantial probability of trustworthiness." 14 Mich App at 655; 165 NW2d 879 (1968). (LEVIN, J., concurring.) In this case decedent was attempting to explain to a police officer investigating a family fight why he had a loaded gun in his pocket. When measured against the criteria for admissibility as an excited utterance, and against the rationale for that hearsay exception, it is apparent that decedent's statement was not admissible. It was not made immediately after a startling event to which it related. It was not "spontaneous and unreflecting". It was made after there was time to contrive and misrepresent, 521 and after time for consideration of self-interest. "Evidence that the statement was self-serving or made in response to an inquiry, while not justification for automatic exclusion, is an indication that the statement was the result of reflective thought, and where the time interval permitted such thought these factors might swing the balance in favor of exclusion." McCormick, supra, p 706. See also, People v Ivory Thomas, supra (LEVIN, J., concurring); Rice v Jackson, 1 Mich. App. 105; 134 NW2d 366 (1965). This statement was made at a time and in such circumstances that it was not admissible as an excited utterance. The prosecution also argues that because the challenged statement of the decedent "was made not only in appellant's presence, but also as part of a conversation and debate in which she herself took quite an active role, such statement was not hearsay evidence as to her". We explicitly reject that argument. Hearsay is an extrajudicial statement which is offered to prove the truth of the thing said. People v Hallaway, 389 Mich. 265, 275; 205 NW2d 451 (1973). "One widely held myth about the hearsay rule is that an out-of-court statement is not hearsay if it was made in the presence of a party and hearsay if not made in his presence." Robinson, Civil and Criminal Evidence, 20 Wayne L Rev, 391, 398 (1974). Judge DANHOF pertinently recognized in People v Sixty-Eighth District Judge, 44 Mich. App. 553, 554, fn 1; 205 NW2d 608 (1973), "the widespread and unfortunate misconception that the distinguishing factor of hearsay is the presence or 522 absence of a party to the action at the time the statement is made. McCormick calls this idea a bit of courthouse folklore. McCormick, Evidence (2d ed), § 246, p 586. Perhaps stronger language is in order." The testimony in question was clearly hearsay. In fact, it was "double hearsay", consisting of the police officer testifying as to what the decedent told him concerning defendant's threats. Finally, the prosecutor argues that even if the statement was improperly admitted, any resulting error was harmless because defendant herself told the officer that she "might load this gun and shoot [the decedent]". Thus, the testimony of the officer concerning decedent's statement was merely cumulative or corroborative on the issue of defendant's intent. We disagree. The statement was offered to show that defendant had threatened to shoot her husband, and thereby make it more believable that she murdered him. The state has not demonstrated beyond a reasonable doubt that this inadmissible hearsay testimony concerning decedent's statement did not contribute to defendant's conviction. People v Robinson, 386 Mich. 551; 194 NW2d 709 (1972); People v Liggett, 378 Mich. 706, 717; 148 NW2d 784 (1967). The admission of this statement, with no opportunity in the presence of the jury for the defendant to challenge the person who made it, denied defendant a fair trial. The conviction is reversed. The cause is remanded for further proceedings. LEVIN and RYAN, JJ., concurred with KAVANAGH, C.J. 523 WILLIAMS, J. (concurring in part; dissenting in part) (for affirmance). I concur with the Chief Justice's conclusion that the contested statement in this case was hearsay and therefore inadmissible. However, I dissent with respect to the order in this case. I agree with the prosecutor that even if the contested statement was improperly admitted, the resulting error was harmless. As the record indicates, the police officer testified at trial that defendant herself told him she "might load this gun and shoot [the decedent]". In light of his testimony, I believe the hearsay testimony of the officer concerning decedent's statement was cumulative. I would, therefore, affirm the conviction. COLEMAN, J. (dissenting) (for affirmance). Defendant is appealing her conviction for the murder of her husband. The Chief Justice has written to reverse because the court admitted a statement made by the husband in the presence of a police officer during a heated argument with defendant about one hour before the husband was killed. Our colleague's opinion finds that this denied defendant a fair trial. We cannot agree. We would affirm. On the date of the incident at about 3 p.m., two police officers were called to defendant's residence and found a family fight in progress. One officer gave this testimony: "Well we arrived, we walked in the door. I observed the butt of a gun sticking out of the right rear pocket of Mr. Cunningham's pants. Approximately the same time Mrs. Cunningham made the statement to the fact that he had a gun. I took him out on the front porch, took the gun away from him out there, and came back into the house where the gun was unloaded. "He stated then that he had taken the gun from her because she had threatened to shoot him with it. Then 524 he went on to state that he had had a check and while he was sleeping she had taken the check from his pocket and gone out and cashed it. "In turn, she stated that he had threatened to shoot her and that he had taken a shot at her a few months prior to this. And they continued to argue back and forth and finally he agreed to leave the house. "At this time the gun was had been laid down. I'm not sure if it was on the table "Q. Could you speak up, please? "A. I laid the gun down and she picked it up. And I told her that we'd have to take the gun with us, due to the fact that they were both quite upset. And she said no, that `I just might load this gun and shoot this' did you want the exact words? "Q. Yes, would you state exactly as you remember it. "A. She said, `I might load this gun, just I just might load this gun and shoot this motherfucker.' "We told her no, that she was going to have to give the gun to us and explained that we were not going to keep the gun, but that she could come down and pick the gun up at a later time at the Identification Bureau a couple days from then when they had cooled down. "She said no, that she wouldn't give it to us. She then sat back in a chair and put the gun behind her back. My partner took her by the left arm and I held onto her right wrist and took the gun away from her. She become upset and began to holler at us because we had come into her home and taken the gun away from her." About one hour later, the police were called to the house and found Mr. Cunningham lying dead in the doorway. He had been shot with a rifle. Defendant admitted shooting him. She claimed that it was an accident that occurred during an argument when Mr. Cunningham grabbed a rifle she was holding. The jury was properly instructed on defendant's theory of accident. They found her guilty of second-degree murder. The Court of Appeals affirmed. 525 When the officer's testimony was given during trial, defendant's attorney did not raise an objection until the direct examination was over. He then said: "If it please the court, there is one matter, although I didn't object to the recounting of the conversation between Mr. and Mrs. Cunningham, I would I think it has some relevance, but I would request the court to instruct the jury to limit the conversation to any statement he made as to showing the state of mind of the parties at that time. I think other as to anything else would be hearsay to my client. "I'm talking about the statements allegedly made by him reported by the officer on direct examination." The court denied this motion. At the close of the day's proceedings, counsel moved to strike the testimony and asked for a mistrial. The court denied the motion believing "there was an occasion which was startling enough to exert excitement and to render the statements by the deceased spontaneous and unreflecting. It was made before there was time to contrive or misrepresent. And it was made relative to circumstances which are in issue in this case." In his opinion, the Chief Justice makes a different analysis. He believes that the statement "was made after there was time to contrive and misrepresent, and after time for consideration of self interest". Thus, we have the trial judge who heard the testimony and observed the witnesses and felt the statements were "spontaneous and unreflecting". The Chief Justice finds the same statements to be otherwise. We believe the trial judge is in the superior position to make such a judgment. We would not second guess his call. *526 The Court of Appeals found no abuse of discretion in admitting the testimony. Its "review of the sequence of events leading to the fatal shooting convinces us that there was a circumstantial probability that the statement was trustworthy and admissible as part of the res gestae". We agree there was a "circumstantial probability of trust-worthiness" here sufficient to permit the jury to consider what weight it would assign the testimony. Compare People v Ernest Edwards, 396 Mich. 551; 242 NW2d 739 (1976). The conviction should be affirmed. LINDEMER, J., concurred with COLEMAN, J. LINDEMER, J. Additionally, I agree with Justice WILLIAMS that, if the admission of the statement was error, it was harmless. FITZGERALD, J., took no part in the decision of this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1920261/	245 Pa. Super. 303 (1976) 369 A.2d 414 COMMONWEALTH of Pennsylvania v. ONE (1) 1971 FORD LTD, Appellant. Superior Court of Pennsylvania. Argued December 11, 1975. Decided November 22, 1976. 304 Jerry A. Snyder, Allentown, for appellant. Joseph V. Huber, Assistant District Attorney, and George J. Joseph, District Attorney, Allentown, for appellee. Before WATKINS, P.J., CERCONE, PRICE and VAN der VOORT, JJ. WATKINS, President Judge: This is an appeal from the order of the Court of Common Pleas of Lehigh County, ordering the forfeiture of a 1971 Ford LTD under the provision of the Drug, Device and Cosmetic Act, 35 P.S. § 780-128(a) (4). That portion of the act provides, inter alia: "(a) The following shall be subject to forfeiture to the Commonwealth and no property right shall exist in them: . . . (4) All conveyances, including aircraft, vehicles or vessels, which are used or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in clause (1) or (2) except that:. . . (ii) no conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent;. . . (iv) no conveyance shall be forfeited under this section for violation of clauses (16) and (31) of subsection (a) of section 13." The owner of the forfeited vehicle, Dennis Shelanick, and his brother, James, went into a bar known as the Hofbrau Haus in Catasauqua, Lehigh County. The record states that while there, James met two men and discussed the sale of hashish. One of the men was an undercover state policeman, the other an undercover local policeman. The evidence is that the meeting was arranged 305 in advance. After some discussion about the quality of the product, James went over to Dennis and they proceeded to the car. Dennis drove while the other three and an unidentified fourth person concluded the drug deal, which ended with the delivery of 6 grams of hashish and marijuana. James and Dennis were in the front seat while the other three were in the back of the car. There is conflicting testimony as to whether Dennis had knowledge of the proposed sale. The state trooper, Officer Karavan testified that he asked Dennis if the "stuff" was good and that Dennis had replied "It will really get you high. It's good stuff." The other officer testified that he heard no such conversation. Dennis testified he thought he was going to the car to smoke marijuana. James also testified that it was his opinion that Dennis thought they were going to the car to smoke marijuana and that Dennis did not know about a proposed drug sale. Dennis Shelanick, the owner of the car, was charged with conspiracy on the drug deal. The hearing on the forfeiture petition was scheduled before the trial on the criminal charge. Dennis's counsel moved for a continuance of the hearing on the ground that his client's testimony on the petition would jeopardize his Fifth Amendment rights. The court ruled that Dennis did not have to testify and refused the continuance. This appeal is advanced on three grounds. The first is that the continuance was improperly refused. Dennis argues that in order to protect his property right in the car he was forced to testify which was a violation of his Fifth Amendment right to be silent. He was thus forced to give up either his due process rights in the forfeiture proceedings or his Fifth Amendment right not to testify against himself. The Commonwealth argues that Dennis was not forced to sacrifice his Fifth Amendment right against self-incrimination as this is an in rem action against the vehicle *306 and cites Fell v. Armour, 355 F. Supp. 1319 (1972) to support the proposition. The cited case, however, merely finds that a statute similar to the Pennsylvania forfeiture statute meets the Fourteenth Amendment and Fifth Amendment standard of due process on its face. The case does not hold that the owner must be forced to sacrifice his right against self-incrimination. We feel the better procedure would have been to hold the hearing after the trial on the criminal charges. Then the owner would not have had to sacrifice his rights in order to testify. The statute requires forfeiture of the vehicle if it is used in a drug sale. If the owner was found guilty of conspiracy the transcript of the trial itself together with the guilty verdict would be sufficient proof to forfeit the car. This procedure would not require the owner to choose between his right to silence and his forfeiture of the car because of his silence. In view of our decision we need not rule on the two remaining issues. Order reversed; new hearing granted. JACOBS, HOFFMAN and SPAETH, JJ., did not participate in the consideration or decision of this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/656142/	8 F.3d 376 63 Fair Empl. Prac. Cas. (BNA) 262,63 Empl. Prac. Dec. P 42,641Leo LaPOINTE, Plaintiff-Appellant,v.UNITED AUTOWORKERS LOCAL 600, and Doug Thompson, Defendants-Appellees. No. 92-1280. United States Court of Appeals,Sixth Circuit. Argued Dec. 1, 1992.Decided Oct. 27, 1993.Rehearing and Suggestion for RehearingEn Banc Denied Dec. 9, 1993. Gary A. Benjamin (argued and briefed), Gary A. Benjamin, Detroit, MI, for plaintiff-appellant. Jordan Rossen, Connye Y. Harper (argued and briefed), Associate Gen. Counsel, Intern. Union, UAW, Detroit, MI, for defendants-appellees. Before: MILBURN and BATCHELDER, Circuit Judges; and CONTIE, Senior Circuit Judge. CONTIE, Senior Circuit Judge. 1 Plaintiff-appellant Leo LaPointe appeals the summary judgment dismissal of his Age Discrimination in Employment Act claim. We reverse and remand for the following reasons. I. 2 Plaintiff-appellant Leo LaPointe ("LaPointe") was employed by the Ford Motor Company ("Ford") in its Parts Depot from 1967 until his retirement on January 1, 1990. While employed by Ford, LaPointe was a member of defendant-appellee United Autoworkers Local 600 ("Local 600"), an amalgamated union whose membership works for several different employers. Consequently, Local 600 is divided into "bargaining units," each representing more than 600 employees governed by elected officers including a chairman, a president, and a vice president. 3 Each bargaining unit president has the authority to recommend individuals to fill union positions created by the collective bargaining agreement. The recommendation is forwarded to the Local Union's president, then to the regional director of the International Union, then to an International Union vice president who, alone, has the authority to appoint individuals to, or remove individuals from, these positions. The responsibilities of these appointed union positions are governed by the terms of the collective bargaining agreements. 4 Defendant-appellee Doug Thompson ("Thompson") served as the bargaining unit president for the Parts Depot from 1981 to 1990. In 1988, Thompson recommended that 49-year-old LaPointe be named the bargaining unit's Health and Safety Representative. The International Union accepted Thompson's recommendation and formally appointed LaPointe to the Health and Safety Representative position in February, 1988. LaPointe continued to be employed by Ford during his tenure as the bargaining unit's Health and Safety Representative. 5 LaPointe contends that soon after his union appointment he became the target of Thompson's ridicule and harassment. On November 29, 1989, LaPointe executed an application for retirement benefits (effective January 1, 1990) pursuant to the Special Early Retirement Opportunities Program negotiated by Ford and the United Autoworkers union.1 LaPointe's union position was ultimately filled by a 44-year-old individual. 6 On April 24, 1990, LaPointe filed an Age Discrimination in Employment Act ("ADEA") charge against Local 600 with the Michigan Department of Civil Rights and the United States Equal Employment Opportunity Commission ("EEOC").2 On May 30, 1990, LaPointe filed a four-count complaint in Wayne County Circuit Court. The appellees, relying on federal question jurisdiction, removed the lawsuit to federal court on December 3, 1990. The district court subsequently remanded Count I (wrongful discharge) and Count IV (intentional infliction of emotional distress and interference with contractual relations) to state court, but retained jurisdiction over Count II (age discrimination) and Count III (breach of the duty of fair representation). On September 10, 1991, the appellees moved for summary judgment. 7 The district court granted the appellees' summary judgment motion on February 7, 1992, 782 F. Supp. 347, after determining that: LaPointe had failed to set forth a prima facie case of age discrimination; and, LaPointe had failed to exhaust internal union remedies prior to filing his fair representation claim. 8 LaPointe thereafter filed a timely notice of appeal challenging only the dismissal of his ADEA claim. II. Summary Judgment 9 Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. A district court's grant of summary judgment is reviewed de novo. Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S. Ct. 196, 102 L. Ed. 2d 166 (1988). In its review, this court must view all facts and inferences drawn therefrom in the light most favorable to the nonmoving party. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). 10 The moving party has the burden of conclusively showing that no genuine issue of material fact exists. Id. Nevertheless, in the face of a summary judgment motion, the nonmoving party cannot rest on its pleadings but must come forward with some probative evidence to support its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); 60 Ivy St. Corp., 822 F.2d at 1435. 11 "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986) (emphasis in original). The dispute must be genuine and the facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the nonmoving party. 60 Ivy St. Corp., 822 F.2d at 1435. If the disputed evidence "is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). ADEA Claim 12 Though LaPointe argues on appeal that he "need not show that he was replaced by someone outside the protected class in order to establish a prima facie case of age discrimination," Appellant's Brief at 13, the appellant's contention is belied by established Sixth Circuit precedent: 13 The elements of a prima facie case of age discrimination require that the charging party demonstrate that (1) she was a member of the protected class, i.e., [at least 40] years of age; (2) that she was subjected to an adverse employment action; (3) that she was qualified for the particular position; and (4) that she was replaced by a person not a member of the protected class. 14 Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309, 313 (6th Cir.1989) (emphasis added). See also Ang v. Procter & Gamble Co., 932 F.2d 540, 548 (6th Cir.1991) ("To establish a prima facie case under Title VII, a plaintiff must show that he is within a protected class; subject to an adverse employment action; qualified for the job; and replaced by a person outside the protected class."). But see Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir.1988) (though "a prima facie case of age discrimination can be constructed where the plaintiff was replaced by a younger worker even if the younger worker is himself within the protected class," the plaintiff must show "that he was replaced by a worker sufficiently younger in the context of his employment to permit an inference of age discrimination"); Maxfield v. Sinclair Int'l, 766 F.2d 788, 792 (3d Cir.1985) ("[n]o case holds that an ADEA plaintiff can recover only if s/he was replaced by someone younger than 40, and there is no reason to engraft the requirement on to the law"), cert. denied, 474 U.S. 1057, 106 S. Ct. 796, 88 L. Ed. 2d 773 (1986). 15 If a plaintiff successfully proves a prima facie case, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's discharge." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). "Once the employer carries this burden, the burden shifts back to the plaintiff to prove by a preponderance of the evidence 'that the legitimate reasons offered by the employer were not its true reasons, but were a pretext for discrimination.' " Ang v. Procter & Gamble Co., 932 F.2d at 548 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981)). 16 LaPointe resigned as the Health and Safety Representative on January 1, 1990, at age 51. On July 5, 1990, defendant-appellee Thompson assumed the Health and Safety Representative position at age 43. On July 1, 1991, Dan Courtney was appointed Health and Safety Representative at age 44. Because the undisputed facts reveal that LaPointe was replaced by individuals within the protected age group, LaPointe cannot establish a prima facie case of age discrimination under established Sixth Circuit precedent. See generally United States v. Warren, 973 F.2d 1304, 1309 (6th Cir.1992) ("One panel of this court cannot overrule the decision of a prior panel of this court."). 17 LaPointe argues, however, that it was not necessary for him to establish a prima facie case because he offered direct evidence of age discrimination. "Direct evidence of discrimination allows a plaintiff to proceed without meeting the requirements of a prima facie case set forth in McDonnell Douglas." Ang v. Procter & Gamble Co., 932 F.2d at 549; see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 621-622, 83 L. Ed. 2d 523 (1985) ("[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination."). In support of his assertion, LaPointe argues that: 18 [he] was told at various times that Mr. Thompson was going to get the older employees out. Mr. Wheeler went through the same experience with Mr. Thompson. Apparently, Wheeler was forced out and replaced by LaPointe temporarily, only so Thompson could reserve the job for someone younger. That is at least Thompson's testimony. The inescapable fact though is that two straight members of a protected class were hounded out of his particular job and replaced by someone younger. Both Wheeler and LaPointe have testified that various ageist comments were made by Thompson as well as by members of Thompson's caucus. 19 Appellant's Brief at 16. 20 Though "[c]ase precedent clearly reflects that isolated and ambiguous statements ... are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination," Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d at 314, LaPointe's assertions are corroborated by the deposition testimony of his predecessor as Health and Safety Representative, George Wheeler: 21 Q. And in the events that happened after Mr. Thompson was elected, what kind of things were happening to you after he took office that you considered to be wrong or harassment, or however you want to phrase it? 22 A. Well, it just started with guys kicking my office door. Guys screaming in the back about the old man ought to retire. 23 Q. Do you know which guys? 24 A. Their voices, yes. They're mostly on the afternoon shift. 25 Q. Were they Business Agents or just guys from the plant? 26 A. Well, they were friends of the caucus. Mr. Thompson's caucus. They campaigned for him. 27 Q. Did you ever see or hear Mr. Thompson say anything to that effect, that the older guys should retire or get out? 28 A. Yes, he made off the wall remarks continuously about people with thirty years, they ought to get out and let the younger guys--and he made this more than one time. 29 Q. Did you ever complain to Mr. Thompson about people kicking your door? 30 A. I told him that--I wanted to get along with him and to get these guys off my back. Just in general. It wasn't just in the office. They broke into my desk a couple of times. It wasn't just the office. It was smart remarks. I couldn't go down to the bar with anybody, I would hear smart remarks. I couldn't go to the cafeteria, I would hear smart remarks about oldtimers, they got thirty years, they ought to get their ass out of here. 31 Q. Smart remarks from whom? 32 A. Mr. Thompson made a few of them. 33 Joint Appendix at 133-34. 34 Though it is relevant to LaPointe's age discrimination claim that defendant-appellee Thompson recommended LaPointe's appointment at age 49, see White v. Mississippi State Oil & Gas Bd., 650 F.2d 540, 544 (5th Cir.1981) ("White was 52 when he was hired and 54 when he was fired; the argument that the same Board that would hire a 52-year-old would fire him two years later because of his age is a strained one"), the district court erroneously concluded that this "on its face rebut[ted] any presumption of age discrimination." 782 F. Supp. 347, 350 n. 5. 35 Accordingly, the district court improperly granted the defendants' summary judgment motion after concluding that LaPointe had "failed to set forth a prima facie case of age discrimination," 782 F. Supp. at 350, without considering LaPointe's direct evidence of age discrimination.3 36 Though the appellees argue that "federal labor law preempts [LaPointe's ADEA] claim because age discrimination is one of the conditions of employment negotiated by the Union and the Company," Appellees' Brief at 12, "the question of whether or not the plaintiff was discriminated against [is] separate from any possible defense the employer might have under the contract.... It is irrelevant to the preemption question whether or not the employer can defend by showing it had the right under the collective bargaining agreement to do what it did." O'Shea v. Detroit News, 887 F.2d 683, 687 (6th Cir.1989); see also Knafel v. Pepsi-Cola Bottlers of Akron, Inc., 899 F.2d 1473, 1482 (6th Cir.1990) ("[A]n inquiry into the conduct of an employee and the motivation of an employer does not necessarily require an interpretation of a labor agreement."). Simply stated, the ADEA action is not preempted by section 301 of the Labor Management Relations Act because "employees have the right not to be discriminated against on the basis of age or handicap without regard to the collective bargaining agreement's language about an employee's rights." O'Shea v. Detroit News, 887 F.2d at 687. III. 37 We REVERSE and REMAND to the district court for the aforementioned reasons. 38 BATCHELDER, Circuit Judge, dissenting. 39 I respectfully dissent. In my view, it is clear from the plaintiff's own testimony that he could not present any evidence from which a reasonable jury could have found one of the essential elements of his ADEA claim: that he was constructively discharged from his employment at Ford. LaPointe alleged in his complaint, in his opposition to defendants' motion for summary judgment, and in oral argument before this panel that the union forced him to retire from Ford. LaPointe's counsel agreed at oral argument that LaPointe in fact is claiming that he was constructively discharged by reason of his alleged forced retirement from Ford. LaPointe does not claim in his complaint, in his opposition to the motion for summary judgment, or in his brief to this Court that he was discriminated against in the terms and conditions of his employment or subjected to a hostile work environment. He does not claim that because of his discriminatory treatment he was forced to resign his Union position and attempted unsuccessfully to return to his job with Ford in the Parts Depot. He claims only that in his full-time Union position as Health and Safety Representative he was treated so badly by the defendants on account of his age that he was forced to take early retirement from Ford, with the necessary result that he relinquished the Union position. 40 Whether a plaintiff presents a prima facie rebuttable presumption of age discrimination under a McDonnell Douglas approach or presents a prima facie case on the basis of direct evidence of age discrimination, he still must present evidence that because of the claimed discrimination he suffered an adverse employment decision. In order for LaPointe to stave off summary judgment under either theory, he had to present evidence to the district court that there remained a genuine issue of material fact as to whether he was constructively discharged from Ford. For the reasons outlined below, I would find that he failed to do this. 41 Although the district court did not address the issue of constructive discharge because it stopped its analysis after determining that LaPointe had not made out a prima facie case under the Gagne/ McDonnell Douglas test, "this Court may examine the record and affirm the District Court on other grounds if we determine that there exists no material controversy regarding matters of fact or law." Hooks v. Hooks, 771 F.2d 935, 945 (6th Cir.1985). The issue of constructive discharge was clearly raised by the parties in the district court. Plaintiff LaPointe's ADEA claim alleges that he was harassed into retirement because defendants wanted "to get a younger person in as Health and Safety Representative." Defendants moved for summary judgment, claiming that LaPointe could not establish the elements of a prima facie case, one of which, defendants stated, was that plaintiff was forced to retire. Defendants specifically claimed that LaPointe could not demonstrate that he was forced to retire because the evidence would show that he opted to take retirement. Responding to Defendant's Motion for Summary Judgment, LaPointe claimed that: 42 In this particular case, a prima facie case would be showing that the Plaintiff is a member of a protected group; that he was forced to retire; that he was qualified for the position; and, that he was replaced by a person outside the protected group. The Defendant does not challenge three of the four alleged requirements. Plaintiff is a member of a protected group and the Defendant is not challenging Plaintiff's argument that he was forced to retire by Doug Thompson's harassment.... 43 (emphasis added) 44 But in their reply brief, defendants countered: 45 At the outset it should be noted that Defendants do not concede that Plaintiff was "forced to retire." To the contrary, Defendants' [sic] contend that LaPointe was not forced to retire. Neither was George Wheeler nor Donald Levine. In fact, Plaintiff admitted that he had the option of resigning his Union position and returning to his regular employment. A contrary "personal belief" would be legally insufficient to support an inference of age discrimination. 46 Similarly, LaPointe's acceptance of the early retirement offer did not constitute age discrimination because he has not shown that he would have been fired had he turned down the offer and thus he has failed to show that he was constructively discharged. 47 [citations to record omitted] 48 Regardless of whether LaPointe was seeking to make out a prima facie case under McDonnell Douglas, or was proceeding on the basis of direct evidence of age discrimination, he was required to show at least that there remains a genuine issue as to the adverse employment action which he claims as the injury in this suit. It was incumbent upon LaPointe to respond, or at least to attempt to respond, to the defendants' claim on summary judgment that this essential element of a prima facie case was absent by pointing to evidence in the record that would raise a genuine issue of fact as to this element. Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir.1983) (party opposing summary judgment motion must inform trial judge why summary judgment should not be entered). While the defendants in their reply brief pointed to specific evidence in the record demonstrating that plaintiff was not forced to retire, (a burden which the law does not place on the moving party), plaintiff failed to respond with any specific evidence to support his claim. 49 In addition, although the plaintiff did not address the constructive discharge issue in his brief on appeal, the defendants clearly did address it in their appellate brief, and plaintiff made no effort to respond. And at oral argument this panel addressed the constructive discharge issue with the parties and plaintiff admitted that his claim is that he was forced to retire from Ford and was thus constructively discharged. 50 A claim of constructive discharge must be decided on the facts of the particular case. Geisler v. Folsom, 735 F.2d 991, 996 (6th Cir.1984). Constructive discharge is at least partially a question of law, and therefore we must review it de novo. Wheeler v. Southland Corp., 875 F.2d 1246, 1249 (6th Cir.1989). A constructive discharge occurs when " 'working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.' " Geisler, 735 F.2d at 996 (quoting Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir.1982)). Feelings of the employee alone cannot establish a constructive discharge; " 'the constructive discharge issue depends upon the facts of each case and requires an inquiry into the intent of the employer and the reasonably foreseeable impact of the employer's conduct upon the employee.' " Wheeler, 875 F.2d at 1249 (quoting Held, 684 F.2d at 432). A constructive discharge claim exists if the plaintiff shows that "a reasonable employer would have foreseen that a reasonable employee ... would feel constructively discharged." Wheeler, 875 F.2d at 1249. 51 LaPointe has failed to show that there is a genuine issue of material fact for trial as to his constructive discharge claim. It is undisputed that during the entire time that LaPointe was employed in the Union Health and Safety Representative position he was also employed by Ford. While there is some evidence of age-based discrimination in the record, it is clear from the depositions that all of the alleged harassment and bullying was directed toward getting LaPointe and other older employees out of their Union positions. For example, LaPointe testified in his deposition that Thompson verbally harassed him in the course of LaPointe's duties as Health and Safety Representative by stating that "old guys" needed to retire to make room for younger employees and calling him age-related names; cut his overtime and attempted to move him from the Health and Safety Representative position to special assignment; continually requested that he retire; told LaPointe that he wanted to see LaPointe's name on a list of persons requesting early retirement information; told others, after LaPointe signed up on this list, that LaPointe was retiring; and told LaPointe that if he left the Union position and went back to his Ford job, he would have him fired from that position, too. George Wheeler, the predecessor to LaPointe, also stated in his deposition that Thompson harassed him and made remarks that employees with thirty years of experience should retire. 52 Defendant Thompson, in his deposition, denied ever having made age-related remarks or telling LaPointe or Wheeler to retire, maintaining that any decisions he made in relation to the Health and Safety Representative were either on the merits or for purely political reasons. Thus it is clear that there is a genuine issue of material fact as to whether LaPointe was constructively discharged from the Union position. However, LaPointe wholly failed to show a genuine issue of fact as to whether Thompson or anyone else constructively discharged him from his job at Ford in the Parts Depot. This court has held that a determination of constructive discharge requires "an inquiry into the intent of the employer and the reasonably foreseeable impact of the employer's conduct on the employee," to the end that "the feelings of the employee would not be enough to show discharge without at least some foreseeability on the part of the employer." Wheeler, 875 F.2d at 1249 (quoting Yates v. Avco Corp, 819 F.2d 630, 636-37 (6th Cir.1987)). We have also held that the presentation to an employee of other legitimate options for continued employment with the company precludes a finding of constructive discharge, quoting the Eleventh Circuit's language in Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir.1987), that "the employee has 'an obligation not to assume the worst, and not to jump to conclusions too fast.' " Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510, 515 (6th Cir.1991). Finally, in an unpublished opinion citing Wilson, Garner and Wheeler, we held that "[w]here, as here, an employee fails to even attempt a reassignment or new position offered to improve a troubling situation, a court may find against constructive discharge." Cleverly v. Digital Equipment Corp., 978 F.2d 1258 (6th Cir.1992). 53 The majority makes no mention whatsoever of LaPointe's burden of showing, as part of his direct evidence case, an adverse employment action, except (in a footnote) to "reject the notion that LaPointe was not constructively discharged from both Ford and Local 600," because "we cannot say, as a matter of law at summary judgment that the district court's assumption [that LaPointe could have returned to his job at Ford after resigning his Union position] is correct." But LaPointe's constructive discharge from Ford is an essential element of his ADEA claim; it was not the defendants' burden to produce any evidence on this issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (Where the plaintiff fails to put forth an essential element of his cause, the court must enter summary judgment as a matter of law). It is undisputed that at all times during his full-time employment as the bargaining unit's Health and Safety Representative, LaPointe continued as an employee of Ford, as the majority opinion acknowledges. LaPointe claims that these defendants forced him to retire from employment with Ford. It was therefore LaPointe's burden to produce some evidence in the record that he was forced to retire from Ford. If this court requires that a plaintiff who claims that his sole employer constructively discharged him must provide evidence from which a jury could find that the employer intended, or at least should have foreseen, that the employee would feel compelled to resign, and requires that the presence of other legitimate employment options with that employer will preclude a finding of constructive discharge, and requires that a reasonable employee has a duty not to assume the worst and jump to conclusions too fast, how much more should this court require those things where the plaintiff claims constructive discharge from employment with one employer by reason of actions of a different employer? At the very least, I would hold that LaPointe, in order to avoid summary judgment, was required to present some actual evidence from which a jury could have found that the defendants in this case in fact could have influenced his continued employment with Ford. 54 LaPointe, however, not only failed to produce any evidence whatever in support of his claim that he was constructively discharged from Ford; in fact, his own testimony contradicts his claim. As the Union Health and Safety Representative, LaPointe continued to be paid by Ford and remained a Ford employee. LaPointe admitted in his deposition that he could have retired from the union position and gone back to his job at Ford. He did not show that a reasonable person would have felt compelled to resign from both the union position and from the Ford position. It is true that LaPointe stated several times throughout his deposition that Thompson told him that "one way or another" he would see that LaPointe was fired from Ford if he returned there. However, the following statements in LaPointe's deposition indicate that LaPointe knew, and a reasonable person would have known, that in fact Thompson could not have had him fired from Ford: 55 LaPointe: ... I didn't know what was happening or what was going to happen to me, because I had been threatened that if I went back out on the floor, I'd lose that job out there too, one way or another and I'd lose, I'd lose the Health and Safety job. 56 So I just, I thought I'd better get out of there to get some help otherwise. 57 Question: Isn't it true that you would have had more protection if you had gone back to your job on the floor? 58 LaPointe: I would have been under the same--right back under the same President, Mr. Thompson or Dan Gillis. 59 Question: Isn't it true that you would not have been working for either Doug Thompson or Dan Gillis, you would have been working for a Ford foreman wouldn't you? 60 LaPointe: No, but they would have been my union representatives. 61 Question: Wouldn't you have been working for a Ford Motor Company foreman? 62 LaPointe: Yes. 63 Question: And foremen are not a member of the union, are they? 64 LaPointe: No. 65 Question: They're not a part of Thompson's Caucus, are they? 66 LaPointe: No. 67 Question: They don't report to Thompson, do they? 68 LaPointe: Hmmph; not that I know of. 69 Obviously, LaPointe knew that if he returned to Ford he would be under the supervision of a Ford foreman, and not Thompson. 70 Although LaPointe contends that Thompson told him that he would have him fired if he returned to the Ford job, a reasonable person would not have believed that Thompson had any control over firings at Ford. In addition, although LaPointe stated that he was told by several union officials that Thompson "could do whatever he wanted to do," LaPointe does not contend that these union officials were referring to Thompson's ability to have LaPointe fired from Ford altogether; rather, they were referring to Thompson's Union decisions. Neither did LaPointe present any evidence that he attempted to determine from anyone at Ford whether Thompson could make good on this threat. Thus, although LaPointe presented evidence from which a jury could have found that Thompson treated him in such a reprehensible fashion that a reasonable person would have been compelled to retire from the Union position, LaPointe presented no evidence that a reasonable person also would have felt compelled to retire from the Ford position. When LaPointe filled out the retirement forms in November of 1988 and retired from Ford effective January 1, 1989, he waived his opportunity to claim that he was constructively discharged from both positions. It was because LaPointe retired from Ford that he was required to retire from the Union position. Had LaPointe resigned his Union position but retained his position at Ford, he might have been able to prevail on a claim of age discrimination against Thompson and the Union for constructive discharge from the Union position. And if Thompson subsequently had forced him to retire from Ford, LaPointe might have been able to prevail on a similar claim of constructive discharge from Ford. But LaPointe never attempted to continue in his employment with Ford. He has presented no evidence whatever that Ford intended that he should, or even had any inkling that he might feel compelled to retire from his employment with Ford. The actions of the Union did not entitle LaPointe to "assume the worst" and jump to the conclusion that Ford would discharge him at the urging of Thompson or permit him to be hounded out of his employment with Ford by these defendants. 71 Accordingly, I would affirm summary judgment for defendants-appellees, although on grounds other than those stated by the district court. Under either a McDonnell Douglas inference of age discrimination or the direct evidence method of proving age discrimination, LaPointe failed to make out a prima facie case because he failed to show he was subjected to an adverse employment decision. Therefore, I would hold that he cannot prevail on his challenge to the summary judgment. 1 Though the district court noted that "plaintiff could have resigned from his union position but nonetheless retained his job with the Ford Motor Company," District Court's Memorandum Opinion and Order at 2 n. 2, LaPointe maintains that Thompson threatened that he "would be gone, one way or another, because [Thompson] would still be around." Joint Appendix at 244. Because we cannot say, as a matter of law at summary judgment, that the district court's assumption is correct, we reject the notion that LaPointe was not constructively discharged from both Ford and Local 600 2 On December 18, 1990, the EEOC issued its Determination which held (in relevant part): The charging party alleges he was harassed by respondent and forced to take an early retirement because of his age, 52, in violation of the ADEA. The evidence obtained during the investigation reveals that the charging party was appointed by the respondent to the position of Health and Safety Representative in 2/88. The evidence discloses that the harassment complained of by the charging party was motivated by union politics rather than the age of the charging party. On 1/1/90, the charging party voluntarily accepted an early retirement offer from the employer, removing him from the union position. The evidence shows that position was ultimately filled by a 44 year old male. Based on this analysis, I have determined that the evidence obtained during the investigation does not establish a violation of the statute. EEOC Determination at 1. 3 The district court further held: For the sake of completeness, this Court notes that in formulating the ADEA, Congress expressly adopted the remedial scheme of the Fair Labor Standards Act ("FLSA") to enforce ADEA's provisions. Unions, or anyone acting in the capacity of officer or agent for such labor organizations, are not liable for monetary damages under the FLSA. Thus, even assuming plaintiff's prima facie case was established, plaintiff could not recover the relief sought. 782 F.Supp. at 350 n. 6 (citations omitted). The district court failed to acknowledge, however, that unions are liable for monetary damages under the FLSA "when acting as an employer." 29 U.S.C. § 203(d). Accordingly, the district court must determine, on remand, whether Local 600 is liable to LaPointe for monetary damages	01-03-2023	04-16-2012
https://www.courtlistener.com/api/rest/v3/opinions/1618644/	615 So.2d 943 (1993) STATE of Louisiana, Plaintiff and Appellee, v. Leon Daryl STARKS, Defendant and Appellant. No. 92 KA 0537. Court of Appeal of Louisiana, First Circuit. March 5, 1993. 945 Bernie B. Boudreaux, Dist. Atty., Walter J. Senette, Jr., Asst. Dist. Atty., Franklin, for plaintiff and appellee. Don J. Hernandez, Chief Indigent Defender, Susan Kutcher, Indigent Defender Bd., Franklin, for defendant and appellant. Before WATKINS, CRAIN and GONZALES, JJ. WATKINS, Judge. Defendant, Leon Daryl Starks, was charged by bill of information with distribution of cocaine, a violation of LSA-R.S. 40:964 and LSA-R.S.40:967 A. After the state orally amended[1] the charge to possession with intent to distribute cocaine, defendant pled guilty pursuant to an agreement in which the trial court agreed to impose a suspended sentence of seven years imprisonment. Defendant specifically reserved the right to appeal the trial court's denial of his motion to suppress physical evidence. See State v. Crosby, 338 So.2d 584 (La.1976). Thereafter, in accordance with the plea agreement, the trial court sentenced defendant to imprisonment at hard labor for seven years and a fine of $500.00, suspending the sentence of imprisonment and placing defendant on supervised probation for five years, with special conditions. Defendant has appealed, alleging in his sole assignment of error that the trial court erred in denying his motion to suppress. FACTS The testimony given at the hearing on defendant's motion to suppress established 946 the following facts. On May 2, 1991, Officer Travis Crouch was working detail duty for the housing authority at the Brownell Homes located in Morgan City, Louisiana.[2] Between approximately 10:00 and 11:00 p.m., Officer Crouch was leaving the scene of a domestic dispute he had just investigated; he was approached by a woman who told him, that shortly before, while she was walking along the street with her grandchild, she witnessed an apparent drug transaction take place approximately five feet from her on a street corner. She indicated that she saw a man wearing plaid shorts and a yellow shirt walk out to a truck at the curb; the man opened a matchbox from which he took an object that appeared to be rock cocaine; he gave it to an individual in the truck, who gave the man money in return for the object. The woman told Officer Crouch that the man was still standing on the street corner, along with several other individuals. When Officer Crouch looked toward the corner, the lady verified that defendant was the man she had seen sell what appeared to be cocaine. The informant, who appeared to be in her sixties and who was accompanied by a small child in a stroller, told Officer Crouch she was reporting this information because she was concerned about her grandchildren who lived in Brownell Homes. Officer Crouch radioed the information to Officer Michael Banks of the Morgan City Police Department; the St. Mary Parish Sheriff's Department was also contacted. Before the arrival of the other officers, Officer Crouch watched defendant standing on the street corner with several other individuals for ten to fifteen minutes, but observed no suspicious conduct. When the law enforcement officers contacted by Officer Crouch approached the street corner in an unmarked police unit, which nevertheless appears to have been well-known in the city, defendant began running. At that point, Officer Crouch visually identified defendant as the individual pointed out to him by the informant. The officers in the unmarked unit followed defendant as he ran; after defendant made a turn and ran behind some housing units, they exited the vehicle and ran after him on foot. Officer Banks ran directly behind, shining his flashlight on defendant; two other officers ran parallel to where defendant was running. When Officer Banks was approximately twenty to thirty yards behind defendant, he saw defendant stop running, take an object out of his pocket, and bend down and place it behind one of the housing units. Defendant then turned around and, with his hands raised, walked toward Officer Banks. After defendant was detained and advised of his rights, he was asked what he left behind the building; defendant apparently made no response. Officer Banks searched the area where he had seen defendant place the object and found a matchbox containing nine rocks of cocaine. ASSIGNMENT OF ERROR In his sole assignment of error, defendant alleges the trial court erred in denying his motion to suppress the physical evidence seized. Specifically, defendant contends that the investigatory detention of defendant was an illegal stop because it was made without reasonable cause, rendering the subsequent seizure of physical evidence illegal. The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by Louisiana Code of Criminal Procedure article 215.1, as well as both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389, 391 (La.1983). However, an officer's right to make an investigatory stop of a particular individual must be based upon reasonable cause to believe that he had been, is, or is about to be engaged in criminal conduct. LSA-C.Cr.P. art. 215.1; Andrishok, 434 So.2d at 391. 947 For purposes of an investigatory stop and detention for interrogation, "reasonable cause" is something less than probable cause and must be determined under the facts of each case considering whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. The totality of circumstances must be considered in determining whether or not reasonable cause exists. Further, to assess the reasonableness of an officer's conduct, it is necessary to balance against the harm of invasion the need to search or to seize. State v. Scott, 561 So.2d 170, 173 (La.App. 1st Cir.), writ denied, 566 So.2d 394 (La. 1990). Although flight, furtive gestures, nervousness, or startled behavior at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, this type of highly suspicious conduct may be a factor leading to a finding of reasonable cause. Scott, 561 So.2d at 173-174; see State v. Carver, 531 So.2d 551, 553 (La. App. 5th Cir.1988). The reputation of an area is another articulable fact upon which a police officer may rely and which is relevant in the determination of whether or not there was reasonable cause for an investigatory stop. Scott, 561 So.2d at 173; Carver, 531 So.2d at 553 n. 2. Areas known to be high crime areas are places where the character of the area gives color to conduct which might not otherwise arouse the suspicions of an officer. Scott, 561 So.2d at 173. If police officers make an illegal investigatory stop, property abandoned or otherwise disposed of as a result thereof cannot be legally seized. State v. Hamilton, 546 So.2d 554, 556 (La.App. 1st Cir. 1989). However, if the property is abandoned prior to an unlawful seizure or detention of the individual, then the abandoned property may be seized. See California v. Hodari D., ___ U.S. ___, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Hamilton, 546 So.2d at 556. In the present case, defendant argues that he was unlawfully seized by the police before he dropped the contraband, making the seizure of these drugs the fruit of an unlawful stop. Defendant contends that the pursuit by the police officers was a show of authority to which he submitted by stopping, prior to discarding the contraband. We disagree. Even if the pursuit of defendant could be considered a sufficient show of authority, defendant had not submitted to this show of authority when he discarded the contraband in question. The evidence reveals that defendant first discarded the contraband and, only then, turned around and walked toward the police with his hands up. Under these circumstances, we believe that the matchbox containing drugs, which was discarded by defendant prior to submitting to the police, was abandoned by defendant and was not the fruit of a seizure subject to suppression. See California v. Hodari D.; State v. Francise, 597 So.2d 28 (La. App. 1st Cir.), writ denied, 604 So.2d 970 (La.1992); State v. Pittman, 585 So.2d 591, 595 (La.App. 5th Cir.), writ denied, 586 So.2d 545 (La.1991). Moreover, we conclude the police had reasonable cause to justify an investigatory stop of defendant; therefore, the seizure of the contraband cannot in any event be considered the fruit of an illegal stop. The evidence at the suppression hearing established that the police received information from a citizen informant who personally approached an officer and, after explaining that she was doing so because of concern for her grandchildren, gave detailed information regarding an apparent drug transaction she had witnessed shortly before between defendant and another individual.[3] At the time this information was 948 received, defendant was still standing on the street corner where the transaction had occurred. There was testimony at the suppression hearing that Brownell Homes, in general, and the street corner where defendant was standing, in particular, are high crime areas known for illegal drug activity. Furthermore, upon seeing the mere approach of the unmarked police vehicle at a normal speed, without lights and siren, defendant immediately fled. While each of these factors alone may not have been sufficient, when considered together they established reasonable cause for the police to make an investigatory stop of defendant. Therefore, the contraband abandoned by defendant cannot be considered the fruit of an illegal stop as argued by defendant. For these reasons, defendant's assignment of error is without merit. After consideration of the above the conviction and sentence are affirmed. CONVICTION AND SENTENCE AFFIRMED. NOTES [1] We note as patent error the fact that the state did not file a written amendment to the bill of information charging defendant; written amendment was required because possession with intent to distribute cocaine is not a lesser-included responsive verdict to a charge of distribution of cocaine. See LSA-C.Cr.P. art. 814(A)(48). However, we conclude that this failure was harmless error because the plea made by defendant was acceptable to the district attorney, defendant was fully aware of the charge to which he was pleading, and the plea was not prejudicial to defendant. See State v. Barclay, 591 So.2d 1178, 1182 (La.App. 1st Cir. 1991), writ denied, 595 So.2d 653 (La.1992). [2] On May 2, 1991, Officer Crouch was employed by the St. Mary Parish Sheriff's Office; however, at the time of the suppression hearing he was employed by the Morgan City Police Department. [3] In brief, defendant argues that the information provided by this informant could not provide reasonable cause for an investigatory stop, because she was not known to the police and had not previously provided information to them. We disagree. We believe there were sufficient indicia of reliability of the information provided, even under the test used to ascertain the credibility of a confidential informant who provides information to support probable cause for a warrantless arrest or search. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court abandoned an inflexible test for determining the reliability of information provided by a confidential informant in favor of a totality of the circumstances analysis. See Francise, 597 So.2d at 34. The Gates Court held that, while "basis of knowledge" and "reliability" are relevant considerations, these factors are not absolutely controlling and "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." 103 S.Ct. at 2329. In the present case, the showing as to the informant's basis of knowledge was extremely strong; furthermore, the fact that the informant was accompanied by her grandchild tends to corroborate the explanation given as to her motivation for providing the information. In contrast to an informer who is an anonymous person who routinely tips police to criminal conduct, a citizen informer is a presumptively inherently credible source. State v. Morris, 444 So.2d 1200, 1203 (La.1984). We believe the totality of the circumstances supported the overall reliability of the tip provided by the informant.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618652/	615 So.2d 737 (1993) Michael Lee THOMPSON, Appellant, v. STATE of Florida, Appellee. Michael Earl Staton, Appellant, v. State of Florida, Appellee. Nos. 90-1107, 90-1106. District Court of Appeal of Florida, First District. February 19, 1993. 739 Jefferson W. Morrow, Jacksonville, for appellant Thompson. Clyde M. Collins, Jr., Jacksonville, for appellant Staton. Robert A. Butterworth, Atty. Gen., Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for appellee. ON MOTION FOR REHEARING ERVIN, Judge. Michael Lee Thompson and Michael Earl Staton, appellants, appeal their convictions on nine counts each of armed sexual battery. Staton also appeals his nine consecutive life sentences. Although appellants' cases were not consolidated below, but were instead tried before two juries,[1] we consolidated the cases for oral argument and for this opinion, because the facts and many of the issues overlap. Both appellants assert that the court erred in denying their individual motions to sever their cases, in admitting DNA evidence and in denying their individual motions for discharge for violations of their right to a speedy trial. In addition, Thompson individually contends that the court erred in admitting incriminating statements he made to a mental health worker, denying his motion for continuance, permitting his in-court identification by the victims, admitting evidence of a previous conviction for armed robbery, and permitting rebuttal witnesses to testify for the state without making a proper inquiry into possible discovery violations. Staton contends the court erred in admitting double hearsay of codefendant Thompson which implicated Staton, using dual juries, departing from the sentencing guidelines, sentencing Staton to nine consecutive rather than concurrent sentences, and in scoring excessive points for victim injury. We affirm without discussion the use of dual juries,[2] and affirm the court's denials of appellants' motions for discharge for the reasons stated below. We nevertheless reverse appellants' convictions and remand for new trials based upon the court's erroneous admission of double hearsay before the Staton jury, the erroneous admission of Thompson's previous conviction for armed robbery, and the failure to hold appropriate hearings regarding the state's rebuttal witnesses against Thompson. We do not reach any of the remaining issues. The two victims, a mother and her 15-year-old daughter, lived in the Raintree Subdivision in Mandarin, near Jacksonville. On November 25, 1984, at approximately 3:15 a.m., two men armed with knives and wearing stocking masks and gloves broke into their home, demanded money, and each repeatedly sexually assaulted both women orally and vaginally. A few days following the assault, the mother selected a photograph of an individual later identified as Larry Lee Pickett from a photographic spread. The mother also participated in a voice identification in which she tentatively identified the voice of Doyle Glass, a public 740 defender, as one of her assailants. She later identified Thompson in a physical lineup in April 1985. At trial, the mother identified Thompson as the person whom she had recognized in the lineup. The daughter also identified Larry Pickett from the police photospread. In April 1985, the daughter observed a physical lineup of six individuals and then identified Thompson. Neither mother nor daughter was asked to identify co-defendant Staton in a lineup or photospread. FDLE forensic pathologist James Pollick testified as a forensic serologist, stating that he had stored in a freezer for five years cuttings taken from the crime scene from a sheet, robe, and bedspread, on which he found semen and seminal staining. After the defendants' arrests in May 1989, the samples were transported to Maryland for deoxyribonucleic acid (DNA) examination. On cross-examination, Dr. Pollick admitted that this evidence could not be submitted to the FBI lab for DNA testing, because the FBI considered the samples to be too old. Dr. Pollick testified that he tested Larry Lee Pickett's blood, saliva, pubic hair, and head hair, and confirmed the presence of PDM enzyme 2-1, which was Pickett's blood enzyme type, in two of the four semen stains he examined from the crime scene. He said it would not have been possible for Thompson, Staton, or either of the victims to have been responsible for the PDM 2-1 found in the semen stains. The court sustained the state's objection to cross-examination as to Larry Lee Pickett's blood, based on the absence of a proper predicate. Nancy Thompson, Michael Thompson's wife, presented evidence of an alibi on behalf of Thompson, stating that she was dating Thompson at the time of the rapes, and that Thompson was with her until long after midnight on the night of November 24, 1984. Because we do not reach appellants' challenges to the DNA evidence, we do not consider it necessary to summarize such evidence in this opinion. Suffice it to say that three witnesses were qualified as experts in the area of DNA profiling, and testified that statistically significant matches were found between DNA banding patterns in sperm taken from the cuttings labeled "[daughter's] bed" and "[mother's] robe," with DNA banding patterns from the blood labeled Michael Thompson and Michael Staton. One of the witnesses also acknowledged that an unidentified stain of DNA from the material labeled "[daughter's] bed" did not match either Thompson's or Staton's DNA. A mental health counselor, Thomas Meade, testified that Thompson met with him in 1989 and admitted that he and Michael Staton had raped a mother and daughter in 1984. Detective Ray Myer testified that Meade informed him of the meetings, and that he thereafter arrested Thompson and Staton. This evidence is discussed more fully infra. The juries found Thompson and Staton guilty of nine counts of armed sexual battery. Each was sentenced to nine consecutive life sentences. I. MOTIONS FOR DISCHARGE THOMPSON Thompson was initially charged with sexual battery on May 9, 1989, and was returned to Florida from another jurisdiction on May 31, 1989. The 175-day speedy trial period under Florida Rule of Criminal Procedure 3.191 commences upon custody within the state of Florida after being charged with a crime. Thompson filed a motion for discharge on January 19, 1990, 203 days after he was returned to Florida, which was denied. He now claims the trial court erred in denying this motion. Thompson ignores, however, the significance of his motion for continuance filed July 24, 1989, submitted on the ground that his new attorney had just been appointed and needed more time to prepare for trial. The motion was granted. "[W]hen a defendant requests a continuance prior to the expiration of the applicable speedy trial time period for the crime with which he is charged, the defendant waives his speedy trial right as to all charges which emanate 741 from the same criminal episode." Stewart v. State, 491 So.2d 271, 272 (Fla. 1986). Accord Beverly v. State, 516 So.2d 30 (Fla. 1st DCA 1987); Birken v. Scheer, 543 So.2d 330 (Fla. 4th DCA), review denied, 553 So.2d 1166 (Fla. 1989). The speedy trial requirement is reinstated upon the filing of a motion for discharge. State v. McCrery, 429 So.2d 739, 741 (Fla. 1st DCA), review denied, 438 So.2d 833 (Fla. 1983). Rule 3.191(d)(3) provides that when a court denies a motion for discharge based upon delay caused by the defendant, e.g., a continuance, "trial shall be scheduled and commenced within 90 days of a written or recorded order of denial." When Thompson filed his motion for discharge, trial had already been scheduled for February 26, 1990, and trial did begin on that date, which was within 90 days of the January 31, 1990 order of denial.[3] We accordingly affirm the court's denial of Thompson's motion for discharge. STATON Staton claims that because the trial court did not hold a hearing within five days of his motion for discharge, filed November 9, 1989, as required by the 1989 version of rule 3.191(i)(4), he was entitled to discharge. The motion was prepared pro se at a time when Staton was represented by an attorney, and the trial court summarily denied the motion on November 17, 1989. This court has frequently held that a pro se motion for discharge filed when the defendant was represented by counsel is a nullity, having no legal force or effect. Beverly, 516 So.2d at 31; Johnson v. State, 501 So.2d 94, 96 (Fla. 1st DCA 1987). Accord Salser v. State, 582 So.2d 12 (Fla. 5th DCA 1991), review dismissed, 613 So.2d 471 (Fla. 1993). At a hearing held July 31, 1989, the trial judge specifically stated, presumably because Staton had already filed a number of motions on his own, in spite of being represented by an attorney, "I will strike all motions filed by the defendant in proper person since he has counsel." Although Staton later represented himself during the course of this case, he did not begin doing so until February 9, 1990.[4] Staton filed a second motion for discharge on February 26, 1990, but trial began that same day. We affirm the court's denial of Staton's November 9, 1989 motion for discharge. II. THOMPSON'S INCRIMINATING STATEMENTS TO MENTAL-HEALTH COUNSELOR MEADE THOMPSON At the pretrial hearing on his motion to suppress certain statements made by him to Meade, Thompson testified that he was released from prison for another crime on December 20, 1988, and called PRIDE in the middle of April 1989, asking for a referral for counseling services in Jacksonville. He was given the number of Thomas Meade, a counselor at the Mental Health Resource Center in Jacksonville. Thompson testified that he told Meade that he wished to confer with a psychologist, and that Meade came to his home one evening with Judith Henry. Thompson said he asked about confidentiality, and they told him that anything he said about his past would be confidential, but anything about future criminal conduct would have to be reported. Thompson admitted that neither Henry nor Meade told him they were psychologists or psychiatrists, but said that he thought Henry was a psychologist because she told him that she was licensed and had her own private practice. Meade testified that he is a "crisis intervention specialist" with a B.A. degree and that although there are psychologists and psychiatrists on staff at his facility, he is 742 not under their direction and that the director of the agency was not a psychiatrist. Meade said he told Thompson that Judith Henry accompanied him because she was training to be on call for his agency, but that during the conversation it was stated that she was a therapist with a private counseling practice. Two days following the initial visit, Meade met with Detective Ray Myer and told him what Thompson had communicated to him. Meade said Thompson initiated two more meetings, and that he also reported the conversations to Myer, but testified that Myer did not instruct him in any way regarding the questioning of Thompson. The court denied Thompson's motion in limine to invoke the psychotherapist-patient privilege. During trial, before the Thompson jury, Meade testified that Thompson told him during these meetings that he had raped a mother and her 14-year-old daughter in 1984 in Mandarin, Florida, with Michael Staton, while wearing masks and gloves. The trial court properly concluded that Thompson's conversations with Meade, who was simply a crisis intervention specialist, were not protected by the privilege asserted. Section 90.503, Florida Statutes (1989), articulates the psychotherapist-patient privilege, and subsection (1)(a) defines "psychotherapist" as: 1. A person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, who is engaged in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction; or 2. A person licensed or certified as a psychologist[5] under the laws of any state or nation, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction. (Emphasis and footnote added.) The only time a client is authorized to invoke the privilege based upon a reasonable belief that the person is a psychotherapist is when the psychotherapist is a physician, under section 90.503(1)(a)(1).[6] Thompson also claimed that his Miranda[7] rights were violated by collusion between Detective Myer and Meade, and denied making any confession to Meade. We agree that at some point during the proceedings below, the trial court should have inquired into the possibility that Meade acted as an agent for the police. Because, however, we are remanding for new trial as to other issues, as discussed infra, there is no need for us to determine this issue. STATON During trial, the court ruled that neither Meade nor Detective Myer could testify about Thompson's statement to Meade in front of the Staton jury. Accordingly, the Staton jury was removed from the courtroom during virtually all of Meade's testimony, including any mention of Thompson's admission. Myer was, however, ultimately permitted to recount Thompson's statement before the Staton jury, however, based upon the court's conclusion that Staton had opened the door to such testimony. We disagree. 743 On the fourth day of trial, while Staton was still representing himself, Staton questioned Myer about his arrest on May 16, 1989, during cross-examination, and the following transpired: Q. Detective Myer, prior to ... my arrest on May 16th, 1989 had you ever heard of me before? A. Not that I'm aware of Mr. Staton. Q. You stated that the reason you arrested me was not just because I [resembled] the physical description of the suspect, is that true? A. That's true. Q. Some other reasons because you knew I had been at one time a friend of Mr. Thompson? A. That would be one of the reasons. Q. And maybe Mr. Thompson at one time had been a prior suspect in this same case in 1985? A. No, sir, I didn't say that... . Q. Okay. Now you never arrested me because the victims never told you anything about me, is that correct? A. That's correct. * * * * * Q... . The information that you got for the arrest warrant when you first arrested me, where'd you get the information for the arrest warrant? A. I got it from Nancy Herrin [Thompson's wife], Michael Thompson, got it from a lot of sources like that. (Emphasis added.) The state then proffered outside the presence of the Staton jury Myer's testimony revealing that Myer had received information from Thompson disclosing that both Thompson and Staton had committed the rapes. The court instructed Staton that because he had raised the subject during cross-examination of Myer, he had opened the door, permitting the prosecutor to obtain an explanation regarding how he obtained the information leading to Staton's arrest. Over Staton's continuing objection, the court thereafter permitted Myer to testify at length about the details of Thompson's admission: Q. What information did Mr. Mead[e] provide to you? A. That they had gone to the Raintree Apartments and that Thompson had, I mean Staton had chosen the victims, picked them out, the ones they would hit, the targets they were going to commit the rapes on and they did commit the rapes. He told how they dressed with the mask and gloves and the acts they committed. Q. This is what Mr. Mead[e] is telling you about what the defendant Michael Thompson told him? A. That's correct. Q. Did Mr. Mead[e] reflect whether or not Mr. Thompson said how old the younger victim was at the time of the offense? A. He said she was 15, about 15. * * * * * * Q. Tell us what if anything Mr. Mead[e] told you about the defendant, Michael Thompson, said about the sexual acts that were committed? A. He said that they had done a lot of things to them and he wished they could go back and do more things because he didn't do everything that he wanted to. * * * * * * Q. What'd he say? A. He said they used knives. Q. Did he also say whether or not gloves and masks were used? * * * * * * A. He said they had gloves and masks on. Q. Did he tell, did Mr. Mead[e] tell you Mr. Thompson said about how the victims were selected? A. He said Staton would pick them out in the subdivision. We do not consider Staton's questions to Myer to have opened the door to the subject matter of Thompson's alleged statements made to Meade. Staton merely asked Myer from whom he obtained information for the arrest warrant, not what that particular information was. Myer adequately answered the question, and there was no reason for Myer to testify as to the nature of what Thompson had told Meade. 744 Cf. State v. Baird, 572 So.2d 904 (Fla. 1990) (because defense counsel did not open the door for the challenged testimony, officer's statement as to his motive for investigating defendant was inadmissible hearsay). The state argues that any error resulting from the admission of Thompson's statement implicating Staton in the presence of the Staton jury was harmless because Myer's testimony was cumulative to that of Meade. We cannot agree for the simple reason that the Staton jury was not present during Meade's testimony. In that the state has failed to demonstrate harmless error beyond a reasonable doubt, reversal of Staton's conviction is required. Ciccarelli v. State, 531 So.2d 129 (Fla. 1988); Lee v. State, 508 So.2d 1300 (Fla. 1st DCA 1987), approved, 531 So.2d 133 (Fla. 1988). III. WILLIAMS RULE EVIDENCE THOMPSON The state introduced as Williams[8] rule evidence the testimony of Officer J.R. Arnold disclosing that Thompson had been convicted in January 1985 for an armed robbery which occurred November 29, 1984, four days following the sexual batteries. The state claims that the evidence was relevant for the purpose of showing that Thompson planned the rapes, because he had used gloves during both the bank robbery and the rapes. Section 90.404(2), Florida Statutes (1989), a codification of the Williams rule, permits evidence of other crimes to prove identity if there are "similar facts." The fact that the perpetrator in each crime in the case at bar wore gloves hardly constitutes an "unusual or unique" fact, which is required in order to admit such prejudicial evidence. See, e.g., Lee v. State, 508 So.2d 1300 (Fla. 1st DCA 1987), approved, 531 So.2d 133 (Fla. 1988). Officer Arnold's testimony about the robbery was not relevant to prove anything, except Thompson's bad character or propensity for committing criminal acts. Indeed, during closing argument, the prosecutor referred to Thompson as an "admitted bank robber." Moreover, Thompson's conviction for armed robbery became a feature of the state's rebuttal, compounding the error. The state claims that Arnold's testimony was cumulative because Meade had already testified that Thompson told him about the bank robbery. We consider the trial court to have erred in permitting either witness to testify on this matter. The state also claims that Thompson failed to preserve this issue for appeal because he did not object during the witnesses' testimony. Thompson's counsel filed a motion in limine to preclude introduction of this testimony, and renewed his objection before both Meade and Arnold took the stand. Nothing in the case law cited by the state required counsel to do more to preserve this issue for appeal. See, e.g., Correll v. State, 523 So.2d 562 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988); Phillips v. State, 476 So.2d 194 (Fla. 1985). Knowing that the trial court considered such evidence to be admissible, it was not necessary for counsel to continuously object. Donaldson v. State, 369 So.2d 691 (Fla. 1st DCA 1979). IV. RICHARDSON INQUIRY THOMPSON Thompson claims that the trial court erred in failing to conduct Richardson[9] hearings regarding two rebuttal witnesses the state had not identified for the defense, Martha Clark and Mildred Maxwell, and the rebuttal testimony given by Detective Arnold about a statement Thompson allegedly had made to Arnold, which the state had not reported to the defense, after being arrested for another robbery on January 3, 1985. See Fla. R.Crim.P. 3.220(b)(1)(i), (iii). Following Thompson's timely objections, the court permitted proffers of the testimony but 745 made no inquiry concerning the circumstances of the omissions and the possible prejudice to the defendant, as is required for discovery violations under Richardson. See, e.g., Smith v. State, 500 So.2d 125 (Fla. 1986) (new trial is mandated when trial court fails to require state to show that defendant has not been prejudiced by state's failure to disclose statement of accused to police officer, even though it appeared to be harmless error); Hatcher v. State, 568 So.2d 472 (Fla. 1st DCA 1990) (failure to disclose rebuttal witness requires full inquiry), review denied, 577 So.2d 1328 (Fla. 1991); Martinez v. State, 528 So.2d 1334 (Fla. 1st DCA 1988) (reversible error for court to permit state to introduce statement of accused that had not been disclosed). Accordingly, the court erred in declining to conduct full inquiries regarding the witnesses and evidence Thompson asserted had not been disclosed to him. V. CONCLUSION In summary, we affirm the trial court's use of dual juries in these cases, and affirm the court's rejection of Thompson's and Staton's claims that their rights to speedy trial were violated. We reverse Staton's conviction because the court allowed the Staton jury to hear Officer Myers's testimony about Thompson's admission to Thomas Meade, which implicated Staton. We reverse Thompson's conviction because the trial court admitted evidence before the Thompson jury regarding Thompson's conviction for an armed robbery committed in 1984, and failed to conduct full Richardson hearings as to the state's rebuttal witnesses and evidence against him. We consequently remand each case for new trial. AFFIRMED IN PART, REVERSED IN PART, and REMANDED for new trials. WIGGINTON and ZEHMER, JJ., concur. NOTES [1] The evidence that was common to both defendants was tried in the same courtroom before both juries. The evidence that was applicable to only one of the defendants was tried separately outside the presence of the jury considering the case of the other defendant, with the exception of certain evidence which will be more fully discussed infra. [2] Feeney v. State, 359 So.2d 569 (Fla. 1st DCA 1978); Velez v. State, 596 So.2d 1197 (Fla. 3d DCA 1992). [3] Thompson claims the trial court denied his motion to discharge without either defendant or counsel being present. On the contrary, counsel was there and explicitly waived the appearance of his client. [4] After Staton's attorney withdrew on December 4, 1989, the court appointed Steve Weinbaum to represent Staton. On February 8, 1990, the court heard Staton's pro se motion to represent himself, granted his motion, but kept Weinbaum in the case and at trial to assist if problems arose. On March 5, 1990, the fifth day of trial, Staton revoked his waiver of counsel and Weinbaum represented him thereafter. [5] A "psychologist" is defined in chapter 490 as a person with certain doctoral-level training who is licensed by examination or endorsement. § 490.003(3), Fla. Stat. (1989). [6] Thompson argues that a new provision of section 90.503 should apply to his case. Section 90.503(1)(a)(4) now includes in the definition of "psychotherapist": Treatment personnel of facilities licensed by the state pursuant to chapter 394, chapter 395, chapter 396, or chapter 397, facilities designated by the Department of Health and Rehabilitative Services pursuant to chapter 394 as treatment facilities, or facilities defined as community mental health centers pursuant to s. 394.907(1), who are engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction. The trial took place in February and March 1990, and the new provision did not take effect until October 1, 1990. Ch. 90-347, §§ 40, 41, at 2954-55, Laws of Fla. Thus, the new provision could not have applied at trial, and, because the privilege is a substantive right enjoyed by the patient, it cannot be applied on appeal. [7] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [8] Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). [9] Richardson v. State, 246 So.2d 771 (Fla. 1971).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618670/	792 S.W.2d 768 (1990) REPUBLIC BANKERS LIFE INSURANCE COMPANY; American Reserve Life Insurance Company; and Harold P. Altshuler, Appellants, v. Keith A. WOOD; Bankers United Life Assurance Company; NN Investors Life Insurance Company, Inc.; United Group Agencies, Inc.; United Group Companies, Inc.; United Group Association; United Insurance Companies, Inc.; and Ronald Jensen, Appellees. No. 2-88-217-CV. Court of Appeals of Texas, Fort Worth. June 6, 1990. 770 McGregor, White, Malesovas & McSwain, Andy McSwain and John L. Malesovas, Waco, for appellants. Newman & Davenport, P.C., J. Kent Davenport, Figari & Davenport, Mark T. Davenport and Andrew G. Jubinsky, Dallas, J. Michael Jaynes, Irving, for appellees. Before WEAVER, C.J., and FARRIS and LATTIMORE, JJ. OPINION LATTIMORE, Justice. This is an appeal from a take-nothing summary judgment in favor of: Keith A. Wood; Bankers United Life Assurance Company; N.N. Investors Life Insurance Company, Inc.; United Group Agencies, Inc.; United Group Companies, Inc.; United Group Association; United Insurance Companies, Inc.; and Ronald Jensen, who were defendants in a consolidated suit brought by: Republic Bankers Life Insurance Company; American Reserve Life Insurance Company; and Harold P. Altshuler, asserting causes of action for: breach of contract; tortious interference with contracts and business relations; breach of fiduciary duty; fraud; civil conspiracy; and unjust enrichment. We reverse and remand. The genesis of the disputes under consideration arose out of the association of appellant Altshuler and appellee Wood in 1978 when Wood became a general agent of Republic Bankers Life Insurance Company ("Republic"), American Reserve Life Insurance Company ("American"), and Paramount.[1] Altshuler owned 99% of Republic and American, which were engaged in providing primarily hospitalization insurance through a general agency marketing system. Republic, in turn, owned all of the stock in Paramount, another insurance company. American was authorized to do business only in Oklahoma, whereas Republic and Paramount were licensed only in Texas. According to Altshuler, Wood "did an outstanding job" and, by the end of 1979, his agency had grown to a point where Altshuler and Wood were interested in expanding their respective businesses by Altshuler making a "fronting arrangement" with another company to enable him 771 and Wood to do business outside of Texas and Oklahoma. In the latter part of 1980, Altshuler came across Life Investors, Inc., a company whose chief operating officer was Ronald Jensen. In conversations with Jensen, Altshuler expressed an interest in either a fronting, a coinsurance, or a reinsurance arrangement. His deposition testimony explained that in a fronting arrangement, the writing company receives the benefits and risks of writing policies in the name of the other company and pays a small percentage of premiums to the company whose name is used. In a coinsuring arrangement, both companies share in the benefits and risks without regard to which company issues the policy. In a reinsurance arrangement, one of the companies reinsures a part of the risk for a specified amount of money. In initial discussions, Jensen seemed interested in a coinsurance arrangement and Altshuler testified that Jensen understood the Texas and Oklahoma business of Altshuler's companies would not be affected nor would Altshuler's companies be able to handle the financing or reserves incident to the proposed arrangement. It was contemplated that Wood would be appointed as general agent for the Jensen companies. The contracts first submitted by Jensen were not satisfactory but the terms of a new contract were agreed to by the end of March 1981. According to Altshuler, he received a draft of the new agreement and Jensen was to fly to Dallas on April 1, 1981, for signatures and closing. By that agreement, Republic would coinsure on a 50/50 basis the insurance to be written on policy forms of NN Investors Life ("NNIL"), an affiliate of Life Investors, Inc. by the Wood Agency outside of Texas and Oklahoma. NNIL would provide financing and put up the required reserves and Republic would administer the program. The financing referred to is the procedure of paying to the agent the first year's premium in advance, upon the sale of a new policy, and the debiting of the agent's account for any of the first year's premium not collected by the company. On the evening before Jensen was due in Dallas, Wood came to Altshuler with a request that he be permitted to participate in coinsuring the business he wrote. He suggested a one-third participation. Altshuler agreed to ask Jensen about Wood's proposal. Jensen, when informed of Wood's request, said it could be done but some of the terms of the contract would have to be changed. Consequently, the proposed closing did not occur on April 1. About a week later, Jensen sent down a new draft of agreement providing for Wood to have an option to coinsure one-third of the business but requiring Republic to accept financing responsibility. Altshuler rejected Jensen's new proposal, telling him that from the beginning Altshuler had made it clear that he could not afford to provide agency financing. Jensen then suggested Altshuler get Wood to accept less than one-third. Altshuler tried, but Wood was adamant about his share. Finally Wood announced to Altshuler that he was going to make the deal directly with Jensen. Altshuler responded that there would be no deal with Jensen unless he, Altshuler, was included. On April 24 Wood signed a letter to Altshuler in which he stated: Ron Jensen has agreed to work a "50/50 arrangement" with my agency. When I exercise this option with my 50 per cent of the coinsurance agreement or at any time within three years, at a time approved by you if you wish to participate, I will assign 25 per cent (½ of 50%) to your Company or I will assign 50 per cent of my profits of the asset shares of the business to you, at your choice. Also, I will assign you $5 of the registration fees collected on any hospitalization applications written. This agreement can be further drawn up in legal form by you or your attorneys, if you prefer, for further consideration. The words "ACCEPTED BY" appear on the letter above the signature of Altshuler. We shall refer to this agreement as the "50/25 agreement." Shortly after the above agreement, Wood came to Altshuler requesting that he be allowed to write the Texas and Oklahoma 772 business through NNIL with Altshuler's companies coinsuring 75% of that business. Altshuler agreed, and received a letter, dated May 22, 1981, from Thomas F. McCartan stating the understanding of NNIL regarding the arrangements agreed to by NNIL, Wood, and Altshuler. McCartan had been part of Jensen's negotiating team throughout, and his letter summarizes the agreement for an initial term of three years, as follows: 1. Wood agency would continue to write life policies in Texas through Republic, and, in Oklahoma, through American. No coinsurance on those policies. 2. Life insurance business written outside of Texas and Oklahoma would be written through Bankers United and the health business written outside Texas and Oklahoma would be through NNIL. 3. Wood has the right within three years to designate an insurance company to coinsure 50% of the business outside of Texas and Oklahoma and NNIL understands Altshuler has a right to participate in the 50% of the business coinsured by that insurer under a separate arrangement. 4. Some health insurance in Texas and Oklahoma would be issued by NNIL of which Altshuler desires to coinsure 75 per cent, and providing financing to cover 75 per cent of that business. 5. The financing for the business written outside of Texas and Oklahoma is a matter between Bankers United, NNIL, and Wood Agency. 6. The financing of the life business in Texas and Oklahoma is a matter between Altshuler and Wood. 7. The financing of the health insurance business written in Texas and Oklahoma would be funded 75 per cent by Republic and American and 25 percent by NNIL with recovery of agents' debit balances to be allocated on the same basis. 8. Administration of the plan would be provided by NNIL with administrative fees charged against the total earned premium for the health business issued by NNIL not to exceed 10 per cent of such premium in any one calendar year. McCartan's letter concluded with the following language: Hal, I am pleased we were able to work out an arrangement in the overall which allows us all to participate in the business and which lets Keith continue to write business and us underwrite it. (Us, in this sense is you and us.) I am looking forward to a good on-going relationship. If this fairly represents your understanding of the principles of our agreements, please sign below and we'll go from here. The letter was signed by Altshuler and Wood, as individuals, on June 2, 1981. This agreement will be referred to as the "75/25 agreement." Subsequently, there was written a draft of a reinsurance[2] agreement signed by Republic and American but never executed by NNIL or Bankers because of a disagreement regarding the termination clause. Consequently, no written coinsurance agreement was signed by the parties affected by McCartan's letter agreement. Altshuler testified that the "actual mechanics" of their oral agreement as to the Texas and Oklahoma business went into effect immediately, by which "we were financing the agents and sending them money for it and they were sending us reports." In April 1982, McCartan advised Altshuler that the Texas state insurance authorities were demanding a copy of the coinsurance contract which had apparently been listed by NNIL in its annual report to the state. When Altshuler told him that they had an oral contract which he had been advised was "all right," McCartan said "I'm orally rescinding it then." However, the parties continued to operate under the original arrangement until August 1982. On December 773 30, 1983, Altshuler wrote to McCartan calling attention to his letter of May 22, 1981, and requesting a "history of the business written" by Wood to enable him "to make a determination as to whether to provide such reinsurer." The information sought was never provided. The inclusion of: United Group Agencies, Inc.; United Group Companies, Inc.; United Group Association; and United Insurance Companies, Inc. in this litigation is explained by the following recitals of appellants' brief. In March 1982, Jensen terminated his relationship with NNIL and Bankers. At about the same time, Jensen entered into a "consulting agreement" with Wood. This "consulting agreement" gave Jensen 20% of Wood's pre-tax earnings generated under Wood's coinsurance agreement with NNIL and Bankers. On April 1, 1982, Wood gave Altshuler notice that he was terminating his agency agreements with Republic and American, effective April 15, 1982. At about the same time, in April 1982, NNIL and Bankers purportedly terminated their 75/25 coinsurance agreement with Republic and American. Wood also purchased Summit Life Insurance Company in or around this same time period. He thereafter changed the name of Summit Life to United Group Insurance Company ("UGIC"). In addition, Wood incorporated his insurance agency and changed the name to United Group Agencies, Inc. ("UGA"). Wood then exercised his 50% coinsurance option with NNIL and Bankers and executed a coinsurance agreement reflecting the same. No notice was given to Altshuler of Wood's exercise of his option. Wood continued to write business for NNIL and Bankers through UGA and reinsured a portion of the business through UGIC. In December 1982, Jensen purchased 50% of Wood's interest in UGA for $699,000 and acquired an option to purchase 50% of the outstanding stock of UGIC. Jensen exercised his option and purchased 50% of the outstanding stock in UGIC in or around September 1983, for $125,000. In December 1983, UGIC offered, through a private placement, 36.5% of its outstanding stock to thirteen of its key agents. This placement generated approximately $2.9 million in revenues. In or around September 1984, the stockholders of UGIC exchanged their stock in UGIC for stock in United Group Companies, Inc. ("UGC"), so that UGIC became a wholly owned subsidiary of UGC. In 1984 and 1985, UGIC paid dividends of $250,000 and $1,225,000 respectively to its parent company, UGC. United Group Association ("Association"), f/k/a United Group Trade Association, was formed in or around August 1984. In or around September 1984, UGA was reorganized so that Association became the successor to UGA (Wood's agency force). In March 1985, Wood sold his remaining interest in UGIC, Association, and UGA to Jensen for $4,500,000. Then Jensen, in or around June 1985, merged UGIC into United Insurance Companies, Inc. ("UIC") f/k/a UGC. A public offering was made by UIC in March 1986. In January 1988, the stock was traded over-the-counter at a total market value in excess of $10,000,000. After consolidation of the various actions, the specific causes of action asserted against the appellees can be summarized as follows: A. Woodbreach of agency contracts, breach of agreement to assign, breach of the 50/25 coinsurance agreement, breach of fiduciary duty, fraud, civil conspiracy, and unjust enrichment. B. NNIL and Bankersbreach of agreement to assign, breach of the 75/25 coinsurance agreement, tortious interference with contracts and business relations, breach of fiduciary duty, fraud, civil conspiracy, and unjust enrichment. C. Jensentortious interference with contracts and business relationships, breach of fiduciary duty, fraud, civil conspiracy, and unjust enrichment. D. The United Group entitiessame as those against Jensen, above. Separate motions for summary judgment were filed by: Wood; Bankers United, NNIL, and Jensen; and the United Group 774 Entities. A response to each motion was made by Altshuler, Republic Bankers, and American Reserve. All motions were granted, resulting in a take-nothing judgment against all appellants. In a summary judgment case, the issue on appeal is whether the movant met his burden for summary judgment by establishing that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); TEX.R.CIV.P. 166a. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence in the light most favorable to the nonmovant. See id. In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984); Farley v. Prudential Ins. Co., 480 S.W.2d 176, 178 (Tex.1972). Every reasonable inference from the evidence must be indulged in favor of the nonmovant and any doubts resolved in his favor. Montgomery, 669 S.W.2d at 311. Evidence which favors the movant's position will not be considered unless it is uncontroverted. Great American, 391 S.W.2d at 47. Appellants' second and third points of error are generally applicable to all appellees. These points attack the action of the trial court in permitting the deposition of Altshuler to be filed after the rendition of judgment. It is claimed that the deposition could not be considered as part of the summary judgment proof because of its untimely inclusion in the record. Hearings on the summary judgment motions of NNIL, Bankers, and Wood were held on September 18 and October 16, 1987. On November 30, 1987, the trial court notified the parties by letter that it granted the motions of Wood, Bankers, and NNIL. On April 15, 1988, the court heard the motion for summary judgment filed by the United Group entities. On May 26, 1988, Bankers and NNIL filed a motion for leave to file Altshuler's deposition, pointing out that all parties and the court had produced, used, cited to, and quoted from the deposition at the hearings in the belief that the deposition was on file but that the deposition could not be located in the clerk's file. On August 5, 1988, the trial court granted leave to file the deposition in an order, stating that the deposition and exhibits thereto were considered by the court in granting the motions for summary judgment of Bankers and NNIL. Judgment was signed on August 12, 1988. TEX.R.CIV.P. 166a(c) permits filing summary judgment proof after the hearing "and before judgment with permission of the court." Id. Appellants contend the rule refers to the rendering of judgment as opposed to the entering of judgment, and that the signing of the judgment constituted entering the judgment which had been rendered by the court's announcement of its decision prior to the filing of Altshuler's deposition. Appellees counter by pointing to TEX.R. CIV.P. 166a(e) wherein it is provided in part: "defects in form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend." Id. They claim that the essence of appellants' complaint is the trial court considering evidence not properly before it at the hearings. It follows, they claim, appellants' failure to object to such evidence on the ground that it was part of a deposition not on file deprived appellees of the opportunity to cure by simply filing the deposition. In Life Ins. Co. v. Gar-Dal, Inc., 570 S.W.2d 378 (Tex. 1978), the summary judgment was upheld against the claim that a copy of the note sued upon was not properly authenticated in the affidavit in support of the motion so that the summary judgment proof was inadequate. Although our supreme court held that the photocopy of the note was proper evidence, it wrote: Furthermore, defendants waived their right to complain of the alleged defect in 775 the form of plaintiff's proof by failure to except to the motion for summary judgment or the affidavit accompanying same prior to entry of the judgment. Youngstown Sheet & Tube Co. v. Penn, supra [363 S.W.2d 230 (Tex.1962)]; Roland v. McCullough, 561 S.W.2d 207 (Tex.Civ. App.San Antonio 1977, writ ref'd n.r. e.). These alleged defects were matters of form that might easily have been cured if they had been timely pointed out in the response to the motion for summary judgment. Although the trial court still had jurisdiction on November 1, 1976, and thus the discretion to set aside the judgment, it did not abuse its discretion in refusing to do so. We conclude that the better rule is that defects of form are waived if not pointed out to the trial court before summary judgment is rendered. See: Jones v. McSpedden, 560 S.W.2d 177 (Tex.Civ.App.Dallas 1977, no writ). Id. at 380-81. There are additional circumstances worth consideration in the case before us. Each appellant also cited, quoted, and relied upon excerpts from Altshuler's deposition in their responses to all motions for summary judgment. It was only after appellees discovered that the court clerk could not locate the deposition and requested leave to belatedly file a copy with the clerk, that appellants objected. Under the facts of this case we hold it was not error for the court to consider the deposition as summary judgment proof or to allow its belated filing. Furthermore, appellants waived their right to complain of the alleged defect in the form of appellees' proof by failing to object on such ground, with opportunity for appellees to amend under rule 166a(e). Points of error two and three are overruled. We now consider the motions for summary judgment in the order of their filing. BANKERS AND NNIL Bankers and NNIL based their motion on the grounds that the basic claims against them assert rights of a contractual nature that are not enforceable, and the remaining claims against them, "while cast in language sounding in tort, are an indirect attempt to recover for the breach of an unenforceable agreement." They first refer to the assignment by Wood to Altshuler of an option to coinsure 25% of the business written by Wood in states outside of Texas and Oklahoma, which option was acknowledged in McCartan's letter of May 22, 1981. They then refer to testimony of Altshuler that he never requested Wood to exercise his option with Bankers and NNIL, nor did Republic ever exercise its option with Wood within the three-year period. The failure of Republic to exercise its option, they argue, was a relinquishment of its rights. This position is not tenable, however, because appellants' cause of action against Bankers and NNIL is for tortious interference with their business and contractual relations with Wood, based upon the refusal to provide the information regarding the business coinsured by Wood necessary for them to decide whether to exercise the option to participate with Wood in that business. Appellants' suit is not to enforce the 50/25 contract against Bankers and NNIL, nor for damages resulting from their breach of that contract. Consequently, the fact that the option was not timely exercised is not a defense as a matter of law to the cause of action pled by appellants in this regard. Bankers and NNIL also claim, in their motion for summary judgment, that their agreement to permit coinsurance of 75% of the business written for them in Texas and Oklahoma is an oral agreement and thus, its enforcement is barred by the Statute of Frauds. Appellants counter by saying the written memorandum prepared by McCartan coupled with other letters and documents evidencing the essential terms of the agreement constitute sufficient memoranda to satisfy the Statute of Frauds. A valid memoranda of a contract may consist of letters, telegrams, and other documents signed by the party to be charged, which when read in conjunction, form the basis of the contract. American Bank v. Thompson, 660 S.W.2d 831 (Tex. App.Waco 1983, writ ref'd n.r.e.); Central Power & Light Co. v. Del Mar Conserv. Dist., 594 S.W.2d 782 (Tex.Civ.App. 776 San Antonio 1980, writ ref'd n.r.e.). The writing is not required to contain all stipulations between the parties, but only the essential terms of the contract. Osborne v. Moore, 112 Tex. 361, 247 S.W. 498 (1923). Furthermore, the agreement under which the parties operated provided for termination upon a number of eventualities, any of which could have happened within one year. If performance within a year is a possibility that is consistent with the provisions of the agreement, the fact that performance within one year is not required or expected would not bring the contract within the Statute of Frauds. Mercer v. C.A. Roberts Co., 570 F.2d 1232 (5th Cir.1978); Hardin Assoc., Inc. v. Brummett, 613 S.W.2d 4 (Tex.Civ.App.Texarkana 1980, no writ); Eisenbeck v. Buttgen, 450 S.W.2d 696 (Tex.Civ.App.Dallas 1970, no writ). Finally, appellants have pled facts alternatively under the doctrine of promissory estoppel, which, if true, preclude summary judgment based upon the Statute of Frauds. See "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934 (Tex. 1972). We next consider the contention that appellants' tort claims "fail as a matter of law" because they are simply indirect attempts to recover damages for breach of unenforceable agreements. There is authority for the proposition that one who seeks to recover what he would have gained had an unenforceable promise been kept, even though his pleadings sound in tort, cannot recover. See Webber v. M.W. Kellogg Co., 720 S.W.2d 124 (Tex. App.Houston [14th Dist.] 1986, writ ref'd n.r.e.). Appellants responded in the trial court that their tort claims were independent causes of action, separate from a cause of action for breach of their coinsurance contracts with Bankers and NNIL and with Wood. They point to their allegations of: tortious interference with their general agent's contract with Wood; allegations of breach of fiduciary duties; allegations of conspiracy to deprive them of their agency force; and allegations of conspiracy to deprive them of proprietary information. Damages sought for those alleged torts include: damages for loss of a substantial portion of agency force; loss of proprietary information; loss of business Wood's agency would have written directly for Republic and American had Bankers and NNIL not interfered with Wood's exclusive agency contract; and loss of debit balances from delay in calling accounts due. Those alleged damages are not connected with benefits Republic and American would have received had the coinsurance agreements been fulfilled, consequently the rule in Webber is not applicable. A defendant who moves for summary judgment on the basis of an affirmative defense must establish the defense as a matter of law. Munoz v. Gulf Oil Co., 693 S.W.2d 372 (Tex.1984) (per curiam). A defendant may also prevail as movant for summary judgment if it is established, as a matter of law, that there exists no genuine issue of material fact as to one or more elements of the plaintiff's cause or causes of action. Gray v. Bertrand, 723 S.W.2d 957 (Tex.1987) (per curiam). In Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970), the Texas Supreme Court stated: [T]he question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff's claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to any one or more of the essential elements of the plaintiff's cause of action. Id. at 828 (emphasis added). In view of the foregoing, we hold that Bankers and NNIL have not met their burden of either establishing an affirmative defense as a matter of law or that there is no genuine issue of fact as to any one or more of the essential elements of appellants' causes of action, and appellants' first point of error is sustained as to them. WOOD In his motion for summary judgment, Wood refers to Altshuler's deposition testimony that a reinsurance contract is a "fairly complex document covering many 777 different subject matters" and he had never operated under a reinsurance agreement from year to year, unless in writing. Further reference is made to Altshuler's testimony that he and Wood had never discussed the various points to be contained in the contemplated coinsurance agreement, that no "formalized" agreement was prepared, and he had not signed such an agreement. Finally, Wood refers to Altshuler's admission that the usual coinsurance agreement included some eighteen features which are not contained in Wood's letter agreement. Wood then concludes that his letter agreement with Altshuler "was too incomplete, vague, indefinite and uncertain to be enforced." Appellants' response in the trial court was that the 50/25 letter agreement does not contemplate a new, separate coinsurance agreement directly with Wood but is simply a promise to assign 50% of Wood's coinsurance agreement with Bankers and NNIL or 50% of Wood's profits of the asset shares of the business. Considering the circumstances under which Wood wrote, and the contents of his letter, we cannot say he has demonstrated his promises to be unenforceable as a matter of law. Wood's motion then contends that even though the 50/25 agreement is enforceable, appellants could have suffered no damages for its breach, because it is undisputed that "the block of business which was to be coinsured resulted in a severe economic loss." The only proof submitted in this regard is the following portion of Wood's affidavit: My prior company, United Group Insurance Company, was required to place in escrow the sum of $1,000,000.00 as security for its obligations under the reinsurance agreement which it ultimately reached with certain of the other Defendants. United Group Insurance Company terminated the coinsurance agreement in May of 1982 for reason that we had posted an approximately $13,000,000.00 statutory loss. Appellants countered with Altshuler's testimony to the effect that statutory accounting in the insurance business does not necessarily reflect true profit or loss, because the business itself has value and blocks of business are commonly sold between companies for an amount of from six to nine months of the block's policy premiums regardless of the business' posting of an operating loss. Offered also is a memorandum generated in the office of Tom McCartan in 1982, describing this block of business as "a very important part of the NN Investors' premium flow." We conclude that Wood has not established as a matter of law that no damages could have arisen from a breach of the 50/25 agreement. The next contention urged in Wood's motion is that "Plaintiffs have admitted that Wood's business caused Plaintiffs to lose money," therefore, "as a matter of law Plaintiffs have not been damaged, even if Wood did breach his agency contract." No summary judgment proof is referred to in substantiation of this contention, but the following language in appellants' petition is the alleged admission relied upon by Wood: "Plaintiffs have continued to pay renewal commissions under said agency agreements by offsetting the same against debit balances due Plaintiffs thereunder." If, in fact, Wood owed money to appellants when he terminated the agency contract, that fact does not establish as a matter of law the absence of profitability of the agency to appellants. The next contention made in Wood's motion is that appellants never exercised their option to enter into the 50/25 reinsurance agreement, relying on Altshuler's deposition testimony admitting he never exercised that option. Appellants' pleadings included the allegation that in December 1983 Altshuler requested information regarding the business written by Wood which Republic had the right to reinsure and "Defendants refused to provide such information and denied the existence of Plaintiffs' right to coinsure any of said business," thus breaching the 50/25 agreement. Testimony in support of those pleadings appears in Altshuler's deposition and was pointed out in appellants' response. In the light of appellants' pleadings and summary judgment proof, it cannot 778 be said Wood has established as a matter of law that failure to exercise the 50/25 agreement option defeats appellants' cause of action based on that agreement. See Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265 (1939); Colligan v. Smith, 366 S.W.2d 816 (Tex.Civ.App.Fort Worth 1963, writ ref'd n.r.e.). Wood's motion also contended that he is entitled to a partial summary judgment against Altshuler individually because Altshuler admitted he had no individual claim against Wood. He provided proof from Altshuler's deposition to the effect that McCartan's 75/25 letter agreement gave him no individual rights, since it dealt with coinsurance which can only be provided by an insurance company. On the other hand, appellants' response offered proof from the same deposition that Altshuler was asserting an individual cause of action against Wood based upon Wood's promise to pay Altshuler 25% of certain profits referred to in the 50/25 letter agreement. Wood's contention in this regard is also untenable. Wood's next contention was that appellants' claim for breach of fiduciary relationship must fail because his agency contract with Republic and American designated his relationship with appellants as that of an "Independent Contractor only." He urged that a finding of a fiduciary duty requires the existence of a confidential relationship between the parties. It follows, he reasoned, that an independent contractor deals at arms length and cannot have a confidential relationship, citing Hyde Corp. v. Huffines, 158 Tex. 566, 314 S.W.2d 763, 769, cert. denied, 358 U.S. 898, 79 S.Ct. 223, 3 L.Ed.2d 148 (1958). We do not find that case supports Wood's position. In Hyde the Texas Supreme Court found a confidential relationship to exist between a licensor and licensee as a matter of law. In discussing liability for breach of confidence, the court wrote: "The chief example of a confidential relationship under this rule is the relationship of principal and agent (see Restatement of Agency secs. 395 and 396)." Id. An agent is one who consents to act on behalf of and subject to the control of another, the principal, who has manifested consent that the agent shall so act. The relationship between agent and principal is a fiduciary relationship. West v. Touchstone, 620 S.W.2d 687, 690 (Tex. Civ.App.Dallas 1981, writ ref'd n.r.e.); RESTATEMENT (SECOND) OF AGENCY sec. 1 (1958). The contract in question is headed "General Agent's Contract" and clearly states that Wood "is hereby appointed General Agent of CO." The language referred to by Wood could be construed as simply eliminating any possible employer-employee relationship without intending to negate the duty of confidentiality otherwise inherent in an agency relationship, especially in view of the following language of the same paragraph: Kieth [sic] Wood ... agrees to devote his time on a full and exclusive basis to the sale of the policies and supervision of the agents and representatives as shall be required for the successful promotion of CO's business in accordance with this contract. We hold that Wood has not demonstrated that as a matter of law there was no confidential or fiduciary relationship between the parties. In urging summary judgment as to appellants' cause of action for fraud, Wood's sole argument is based upon the contention that a showing of damages to appellants is not possible because they "have consistently maintained that the Wood agency operated at a loss and caused the Plaintiffs to lose money." No additional summary judgment proof is offered. We have previously considered that contention and have found it to be without merit. Wood's final contention was that appellants' claims of unjust enrichment must fail because such claim is in equity, whereas appellants were asserting the existence of contracts, thus barring the right to recover in equity. He further stated that unjust enrichment can only be awarded for "benefits received" unjustly, and since the Wood agencies operated at a loss there could be no benefits received. Appellants 779 responded that even though their pleadings asserted the existence of contracts, they were allowed to plead in the alternative for equitable relief in the event a jury should find no contract came into existence. As to the contention that no benefits were received, appellants point to the proof of Jensen purchasing one-half of Wood's agency in 1982 for $700,000 and, two years later, purchasing the remaining one-half of the agency and Wood's insurance company which had coinsured the business in question for $4,000,000. This portion of Wood's motion must also fail, because it does not establish as a matter of law that appellants' cause of action based upon unjust enrichment cannot be sustained. From what we have said, we must hold that Wood has failed to carry his burden of showing his entitlement to the summary judgment awarded him. Appellants' first point of error is sustained as to Wood. UNITED INSURANCE COMPANIES, INC., UNITED GROUP ASSOCIATION, UNITED GROUP AGENCIES, INC., AND RONALD JENSEN As grounds for summary judgment in their favor, these appellees presented the arguments that appellants' were barred from recovery as a matter of law by the Statute of Frauds, appellants' failure to exercise their option, and their demonstrated lack of damages. Because their arguments and authorities were almost identical with those of the other appellees previously discussed, we will not further address those issues, but for all of the reasons previously stated, we hold that these appellees did not demonstrate as a matter of law that appellants' causes of action against them cannot be sustained. The judgment is reversed and the cause is remanded for trial. NOTES [1] This summary of facts follows the recitals of appellant Altshuler, in his deposition. [2] This instrument is referred to by Altshuler as a reinsurance agreement, but from the context is ostensibly a coinsurance agreement in accordance with Altshuler Deposition Exhibit 3.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618672/	200 N.W.2d 255 (1972) Bernard ROSS, Guardian ad (item of Shane Ross, infant, Plaintiff and Respondent, v. Stanley HANSON, Defendant and Appellant. No. 11039. Supreme Court of South Dakota. September 6, 1972. Martens, Goldsmith, May, Porter & Adam, Pierre, for defendant and appellant. John Simpson, Winner, for plaintiff and respondent. HANSON, Presiding Judge. In this action for personal injuries plaintiff alleged Shane Ross, a minor child, was attacked and injured by a shepherd dog owned by the defendant, Stanley Hanson, who knew or in the exercise of reasonable care should have known the dog was mean with children, had a dangerous disposition, and was likely to cause injury to others. The jury rendered a verdict for plaintiff in the amount of $12,500 upon which judgment was entered. Defendant appeals. The facts are not disputed. Bernard Ross and defendant, Stanley Hanson, owned ranches in the same neighborhood. They were, and are, on friendly terms and visit back and forth frequently. On May 256 25, 1969 Bernard Ross took his two sons, Shane and Wesley, on a trip to the Hanson ranch to pay for a horse. While there Hanson wanted to drive to a pasture to look at some other horses and invited Ross to ride along. Hanson drove his pickup truck with Bernard Ross in front, and Shane Ross, age 7, Wesley Ross, age 8, and Rodney Hanson, age 9, riding in the back of the pickup along with "Blackie", a shepherd, and another farm dog owned by Hanson. These were described as fairly large dogs. There was no trouble with the dogs on the way out to the pasture, however Hanson testified that when they had traveled about a mile back toward his ranch he heard a dog growling. After stopping the pickup he found Blackie astraddle Shane Ross and the dog had bitten the boy. As a result of the dog bite Shane sustained a serious injury to his right eye. Our law relating to liability for injuries caused by dogs is somewhat incongruous. By statute "Any person owning, keeping, or harboring a dog that shall chase, worry, injure, or kill any poultry or domestic animals shall be liable for damages to the owner thereof for any injury caused by such dog to any such animal, fowl, or fowls. All property except such as is absolutely exempt, shall be subject to execution issued upon a judgment for such damages and costs." SDCL 40-34-2. Strict liability is thereby imposed upon the owner or keeper of any dog which kills or causes injury to fowls or domestic animals. There is no similar statute relating to personal injuries. In such cases the common law applies. Accordingly, an owner or keeper is not liable for personal injuries inflicted by a dog unless he knew or should have known of its dangerous propensities. Proof of negligence on the part of the owner in keeping or restraining a domestic animal is not essential to liability. Anderson v. Anderson, 41 S.D. 32, 168 N.W. 852. The gist of the action is the keeping of an animal after knowledge of its vicious propensity. Warwick v. Mulvey, 80 S.D. 511, 127 N.W.2d 433. As stated in 4 Am.Jur.2d, Animals, § 95, p. 343: "The owner is liable if he knew or should have known its dangerous propensities or that it was a probable source of harm, and proof that the owner of a vicious dog had notice of his vicious propensities may be made by introducing evidence of facts and circumstances from which an inference of knowledge arises. Knowledge of one attack by a dog is generally held sufficient to charge the owner with all its subsequent acts. There need be, however, no notice of injury actually committed, and therefore it is unnecessary to prove that a dog had ever before bitten anyone. In this respect, it is stated that the old doctrine that every dog is entitled to `one bite' is out of harmony with a modern humanitarian society. The owner or keeper of a dog must observe manifestations of danger from him to human beings from other traits than viciousness alone, short of actual injury to some person, and cannot neglect to keep him in restraint until he has effectually killed or injured at least one person." The only issue of consequence in the present action is whether or not the evidence is sufficient to show defendant knew, or should have known, of Blackie's dangerous propensity prior to its attack on Shane Ross. In this regard there is evidence Blackie previously bit Darla Hanson, a niece of the Hansons. The record is silent as to the circumstances and the resulting injury, if any, to the niece. On another occasion Blackie bit defendant's younger brother, Rodney Hanson. With reference to this incident Rodney testified they were crossing a fence and "Blackie couldn't make it and he got caught and I pulled his foot to try and help him move and I guess it hurt him and he bit me". The most persuasive evidence of scienter is defendant Hanson's undenied admission he knew Blackie had bitten two children and that "he should have got rid 257 of it (the dog) before, but he never got around to it." Defendant's extra-judicial statement was admissible as an exception to the hearsay rule. It was an expression of fact and not a mere opinion or legal conclusion. The rule is "Any statement made by or attributable to a party to an action which constitutes an admission against his interest and tends to establish or disprove any material fact in the case is competent evidence against him." 31A C.J.S. Evidence § 272, p. 696; Kellner v. Whaley, 148 Neb. 259, 27 N.W.2d 183, 189. In the similar case of Berkowitz v. Simone, 96 R.I. 11, 188 A.2d 665, defendant's dog, Tippy, bit the plaintiff, Carmen Berkowitz, a three-year-old girl. Immediately after the incident defendant told Carmen's mother "she was sorry her dog had bitten Carmen and that she should have gotten rid of it when it bit Debbie." It further appeared that several months before Tippy had bitten Debbie Shapiro, a seven-year-old girl. On that occasion defendant told Debbie's mother she was sorry her dog had bitten Debbie. Defendant did not see her dog bite either girl, but obtained knowledge of each incident from what she had been told. In holding defendant's statements admissible as an exception to the hearsay rule the court said "the admission need not be based upon personal knowledge if the circumstances indicate that the declarant adopted the hearsay matter and that it was not a mere opinion or a legal conclusion but a matter of fact. Randall v. Holmes, 69 R.I. 41, 31 A.2d 17; Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445, 138 A.L.R. 842; Lambros v. Coolahan, 185 Md. 463, 45 A.2d 96; 4 Wigmore, Evidence (3d ed.), § 1053, p. 12; 31A C.J.S. Evidence § 272 a and b, p. 700. The defendant here may be reasonably held to have adopted the hearsay matters of fact involved in both the Debbie and Carmen incidents when she did not then deny that Tippy was her dog. By voluntarily expressing her personal sorrow at each incident and especially her regret that she had not disposed of Tippy after he had bitten Debbie, she indicated her knowledge of and responsibility for his behavior." See also Mungo v. Bennett, 238 S.C. 79, 119 S.E.2d 522. We conclude there was sufficient evidence in the record to submit to the jury the issue as to whether or not defendant had knowledge of the dangerous and vicious propensities of his dog prior to the time it bit Shane. Therefore, defendant's motion for a directed verdict was properly denied. Affirmed. All the Judges concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618682/	615 So.2d 1210 (1992) Ex parte R. Craig NORWOOD. (Re R. Craig NORWOOD v. MARINER LAKES PROPERTY OWNERS ASSOCIATION, INC.). 2910486. Court of Civil Appeals of Alabama. December 11, 1992. 1211 Richard E. Davis of Helmsing, Lyons, Sims & Leach, P.C., Mobile, for appellant. J. Don Foster of Foster & Curenton, P.A., Daphne, for appellee. THIGPEN, Judge. R. Craig Norwood filed this proceeding in this court under the style R. Craig Norwood v. Mariner Lakes Property Owners Association, Inc. We have determined that the substance of this proceeding is a request for a writ of mandamus, and we have restyled this case accordingly. This case involves a trial court's reversal of a decision of a planning commission. R. Craig Norwood applied to the Town of Orange Beach for a permit to build a recreation center on property located within the township limits. An attorney representing the Orange Beach Planning Commission (Commission) prepared an opinion which stated that the Commission was not empowered to reject the project, but could enact restrictions on particulars such as lights, noise, and vibrations to lessen the nuisance to neighboring property owners. The Commission met on January 21, 1992, and approved the project, with certain restrictions on noise, lights, drainage, and traffic flow. Mariner Lakes Property Owners Association, Inc. (Mariner Lakes), representing neighboring property owners, challenged the project to the Orange Beach Board of Adjustment, which declined to hear the appeal. Mariner Lakes sought relief from the circuit court; however, it is unclear precisely what relief was sought as the record does not contain a complete copy of the complaint. Norwood's motion to intervene in this action was granted. In April 1992, the trial court entered an order holding, inter alia, that the Commission "may in its sound discretion either approve or disapprove a permitted use after a specific project review." The trial court then remanded the cause to the Commission with specific instructions regarding further proceedings. Norwood filed this proceeding in this court, contending that the trial court erred in overturning the Commission's approval of Norwood's project. The trial court's order remanded the cause to the Commission for further specified proceedings consistent with its determination that the Commission possessed the authority to approve or reject the project. 1212 The record is devoid of any evidence that the Commission considered the project again, or that an aggrieved party appealed from that decision. Therefore, we must first determine whether the trial court's April order is a final, appealable order. Rule 54, A.R.Civ.P. Ordinarily, an appeal will lie only from a final judgment; i.e., a judgment which conclusively determines issues before the trial court and ascertains and declares the rights of all parties involved. Bean v. Craig, 557 So.2d 1249 (Ala.1990). In this case, the trial court's order addressed the issue of whether the Commission had the authority to reject the project; however, it did not address the merits of whether to approve or disapprove the project. Therefore, it is in the nature of an interlocutory order. See Davis v. Turner, 55 Ala.App. 366, 315 So.2d 602 (1975). Although this court generally reviews only final judgments, Tidwell v. Tidwell, 496 So.2d 91 (Ala.Civ.App.1986), court policy favors adjudication of cases on their merits. State ex rel. P.A.W. v. P.A.D., 591 So.2d 98 (Ala.Civ.App.1991). Therefore, we opt to treat Norwood's filing in this court as a petition for writ of mandamus. Alabama Department of Pensions & Security v. Johns, 441 So.2d 947 (Ala.Civ.App.1983). See also Citicorp Person to Person Financial Center, Inc. v. Sanderson, 421 So.2d 1293 (Ala.Civ.App.1982). Mandamus is a drastic and extraordinary remedy, which should be granted only when there is clear showing that the trial court abused its discretion and exercised it in an arbitrary or capricious manner. Ex parte Thompson, 474 So.2d 1091 (Ala.1985). Furthermore, mandamus is not to be granted unless there is a clear showing of error on the part of the trial court. Ex parte Phillips, 578 So.2d 1371 (Ala.Civ.App.1991). Because Norwood cannot directly appeal the interlocutory order to this court, review must be by mandamus or not at all. The issue, therefore, is whether the trial court correctly interpreted the Orange Beach zoning ordinance. Consequently, this court must look to the trial court's interpretation of the ordinance to determine whether clear error exists. Ex parte Phillips, supra. Table 4.01 ("Permitted Uses and Conditions") of the zoning ordinance allows amusement and recreation services only in areas zoned "GB." Amusement and recreation services are further designated with a "P" restriction. The comments to the zoning ordinance state: "The following Table contains a list of land use permitted in each District. Opposite each land use, in the appropriate and District column or columns, the letter `R' identifies those Districts in which a particular land use is permitted by right. The letter `P' identifies those uses that may be permitted in a District, but only after specific project review and approval by the Planning Commission prior to the project's construction start." (Emphasis added.) Clearly, amusement and recreation services are not permitted by right in Orange Beach. Rather, they are a use which the Commission may grant or deny at its discretion. No other interpretation is consistent with the plain wording of the ordinance. Plain language in a statute should be considered to mean exactly what it says. Ex parte Madison County, Alabama, 406 So.2d 398 (Ala.1981). Rules used to construe statutes are also used to construe ordinances. St. Paul Fire & Marine Insurance Co. v. Elliott, 545 So.2d 760 (Ala. 1989). Additionally, we note that the trial court correctly characterized Norwood's proposal as a request for a special exception. A special exception is an enumerated use, specified in the zoning ordinances, that requires the approval of an administrative board or agency. Ex parte Fairhope Board of Adjustment & Appeals, 567 So.2d 1353 (Ala.1990). It naturally follows, then, that the authority to approve a use carries with it the concomitant power not to approve a use. Construction of a zoning ordinance is a question of law, Civitans Care, Inc. v. Board of Adjustment of City of Huntsville, *1213 437 So.2d 540 (Ala.Civ.App.1983); because we find no error in the trial court's interpretation, Norwood's petition for writ of mandamus is denied. WRIT DENIED. ROBERTSON, P.J., and RUSSELL, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618685/	303 S.W.3d 70 (2009) 2009 Ark. 167 Laura ALLEN, Individually and as Co-Trustee of the Thomas H. Allen and Laura Allen Revocable Trust Agreement Dated October 22, 2001, Petitioner, v. CIRCUIT COURT OF PULASKI COUNTY, NINTH DIVISION, Respondent. No. 08-1236. Supreme Court of Arkansas. April 2, 2009. 72 Marshall & See, by: Pat Marshall, Little Rock, for petitioner. Dustin McDaniel, Att'y Gen., by: Ali M. Brady, Ass't Att'y Gen., Little Rock, for respondent. Hatfield & Lassiter, by: Richard F. Hatfield, Little Rock, for respondents Kay Bird and Lori Allen. ROBERT L. BROWN, Justice. Petitioner Laura Allen, individually and as co-trustee of the Thomas H. Allen and Laura Allen Joint Revocable Trust Agreement, petitions this court for a writ of prohibition to prevent the respondent, the Pulaski County Circuit Court, Ninth Division ("the Ninth Division"), from exercising jurisdiction over the complaint styled Kay Allen Bird, individually and as trustee of the Clytie Carolyn Allen Trust # 2 v. Laura Seibs, formerly Laura Allen, individually and as co-trustee of the Thomas H. "Bill" Allen and Laura Allen Joint Revocable Trust Agreement dated October 22, 2001, CV2007-485. We deny the petition for writ of prohibition. The relevant facts are these. In 1988, Dr. Thomas H. "Bill" Allen quitclaimed his interest in his home, Longfellow Place, in Little Rock, to his then-wife Carolyn Allen. Carolyn Allen died in 1989, and, pursuant to her will, title to Longfellow Place vested in the Clytie Carolyn Allen Trust # 2 ("the Carolyn Allen Trust"). This trust provided that Longfellow Place, the trust's only asset, was held in trust for Dr. Allen, and the couple's two daughters, Kay Allen Bird and Lori Allen. The trust named Dr. Allen as trustee and Kay Allen Bird as the successor trustee. In 1992, Dr. Allen married Laura Allen, the petitioner in this case. In 1998, Dr. Allen, as trustee of the Carolyn Allen Trust, and Laura Allen, his wife, sold Longfellow Place. The net proceeds from the sale were $567,780.00, which Dr. Allen and Laura Allen used to build a new house at 5820 North Country Club Boulevard in Little Rock ("the Country Club house"). On October 21, 2001, Dr. Allen and Laura Allen created the Dr. Thomas H. Allen and Laura Allen Joint Revocable Trust ("the Joint Revocable Trust"), which provided that all trust property was divided equally into two separate trusts, one each for Dr. Allen and Laura Allen, and that at the death of either party, his or her trust passes to the survivor's trust with the survivor as sole trustee for his or her benefit. At the survivor's death, the remaining trust property was to pass equally to the surviving children and grandchildren of Dr. Allen and Laura Allen.[1] Dr. Allen and Laura Allen transferred title to 73 the Country Club house to the Joint Revocable Trust in December 2001. In 2004, a guardianship action concerning Dr. Allen, In Re: Dr. Allen H. "Bill" Allen, an Incapacitated Person, No. PGD XXXX-XXXX, was commenced in Pulaski County Circuit Court and assigned to the Ninth Division. On February 17, 2005, the Ninth Division found Dr. Allen to be incapacitated due to Alzheimer's disease and appointed Lori Allen as guardian of Dr. Allen's person and Bank of the Ozarks as guardian of Dr. Allen's estate. Subsequent to the guardianship action, Dr. Allen's two daughters and one grandchild filed a civil action in Pulaski County Circuit CourtKay Allen Bird, Lori Allen, and Carolyn Bird v. Bank of the Ozarks, as Guardian of the Estate of Thomas H. "Bill" Allen and Laura Allen, as Co-trustees of the Thomas H. "Bill" Allen and Laura Allen Joint Revocable Trust Dated October 22, 2001, No. CV 2004-11842 seeking the imposition of a constructive trust over the assets of the Joint Revocable Trust, including the Country Club house. This case was also assigned to the Ninth Division of the Pulaski County Circuit Court. In an order dated March 13, 2006, the Ninth Division imposed a constructive trust on the assets of the Joint Revocable Trust that were the result of the Longfellow Place sale in an amount equal to $567,820.00. The Ninth Division found that "the Carolyn Allen Trust was essentially gutted and the proceeds from the sale of the Longfellow Place home were then placed in the Joint Revocable Trust"; that the proceeds of the Longfellow Place sale were not used for the stated purpose of the Carolyn Allen Trust; and that the proceeds unjustly enriched Laura Allen, who was not a beneficiary under the Carolyn Allen Trust. Laura Allen filed a notice of appeal from this order on April 12, 2006. On April 19, 2006, Laura Allen filed for divorce from Dr. Allen in Pulaski County Circuit Court. The case, Laura Allen v. Thomas "Bill" Allen, DR 2006-2052, was assigned to the Sixteenth Division. On May 30, 2006, Laura Allen filed a motion for stay pending appeal of the March 13, 2006 judgment in the constructive-trust case, CV 2004-11842, which the Ninth Division granted in an order dated June 6, 2006. This order also authorized Laura Allen to sell the Country Club house, which was subject to the constructive trust. On July 19, 2006, the various parties in the various lawsuits reached and executed a Family Settlement Agreement.[2] This agreement provided, among other things, that the divorce action, DR 2006-2052, would be finalized by an absolute divorce and that Laura Allen would dismiss her appeal in the constructive-trust case, CV 2004-11842, and put the Country Club house up for immediate sale with $568,000 of the net proceeds from the sale going to the Carolyn Allen Trust. On July 20, 2006, by order in the guardianship case, PGD XXXX-XXXX, the Ninth Division approved the execution of the Family Settlement Agreement by Bank of the Ozarks, as guardian of Dr. Allen's estate, and Lori Allen, as guardian of Dr. Allen's person, and authorized the parties to take the necessary steps to implement the terms of the agreement. On July 27, 2006, the 74 Sixteenth Division entered a decree of final divorce in Allen v. Allen, DR 2006-2052, which incorporated the Family Settlement Agreement. In its decree, the Sixteenth Division retained jurisdiction over the parties to enter additional orders. On October 10, 2006, Kay Allen Bird and Lori Allen filed a motion to enforce the Family Settlement Agreement with the Ninth Division in both the constructive-trust case, CV 2004-11842, and the guardianship case, PGD XXXX-XXXX. On January 11, 2007, Kay Allen Bird, as trustee of the Carolyn Allen Trust, filed a new civil lawsuit against Laura AllenKay Allen Bird, individually and as Trustee of the Clytie Carolyn Allen Trust #2 v. Laura Seibs, formerly Laura Allen, individually and as Co-Trustee of the Thomas H. "Bill" Allen and Laura Allen Joint Revocable Trust Agreement dated October 22, 2001, No. CV 2007-485which was assigned to the Pulaski County Circuit Court, Twelfth Division ("the Twelfth Division"). The motion to enforce the Family Settlement Agreement and the new civil action sought essentially the same remediesnamely, that Laura Allen be ordered to sell the Country Club house in accordance with the Family Settlement Agreement and to pay for insurance and utilities on the house prior to sale. On October 19, 2006, Laura Allen moved to dismiss the motion to enforce the Family Settlement Agreement pending in the Ninth Division and filed an answer and a motion to dismiss in the Twelfth Division on February 1, 2007. In her pleadings, she asserted that both the Ninth and Twelfth Divisions lacked jurisdiction because the Sixteenth Division retained jurisdiction over the Family Settlement Agreement under the terms of the divorce decree. On February 5, 2007, Kay Allen Bird moved to transfer CV 2007-485 from the Twelfth Division to the Ninth Division. Laura Allen responded to the motion to transfer on February 7, 2007, and reasserted her position that neither division had jurisdiction because the Sixteenth Division retained jurisdiction per the divorce decree. On February 16, 2007, Dr. Allen died. Lori Allen and Kay Allen Bird then moved to withdraw their motion to enforce the Family Settlement Agreement in the guardianship case, PGD XXXX-XXXX, and the constructive trust case, CV 2004-11842. The Ninth Division granted the motion to withdraw on March 13, 2007. Dr. Allen's death resulted in Kay Allen Bird becoming successor trustee. She then moved to substitute Lori Allen as party plaintiff in place of herself as trustee of the Carolyn Allen Trust, in case CV 2007-485. The Twelfth Division granted the motion to substitute parties plaintiff on April 27, 2007. On May 9, 2007, on the agreement of the Ninth and Twelfth Divisions, case CV 2007-485 was transferred from the Twelfth Division to the Ninth Division. After CV 2007-485 was transferred to the Ninth Division, Kay Allen Bird and Lori Allen moved for a temporary restraining order on August 25, 2008, and filed an amended motion for a temporary restraining order on September 11, 2008. Both motions, in part, sought to restrain Laura Allen from leasing the Country Club house. In her response, Laura Allen again denied that the Ninth Division had jurisdiction of the matter. Following a hearing in the Ninth Division on the temporary-restraining-order motion and Laura Allen's motion to dismiss, the Ninth Division denied both the motion for a temporary restraining order and Laura Allen's motion to dismiss on September 26, 2008, and ordered Laura Allen to have the Country Club house appraised within forty-five days from the date of the hearing. 75 In denying Laura Allen's motion to dismiss, the Ninth Division said that a "major obstacle" to her argument that the Sixteenth Division had exclusive jurisdiction of the matter was the fact that only one of the parties to the Family Settlement Agreement was before the Sixteenth Division in the divorce case, whereas the present action involved all of the necessary parties. On October 24, 2008, Laura Allen filed her petition for a writ of prohibition with this court, which is the matter before us today. In her prohibition petition, Laura Allen urges this court to issue a writ to prevent the Ninth Division from acting without jurisdiction over the Family Settlement Agreement. She claims that the Sixteenth Division obtained exclusive jurisdiction under the common-law principle of concurrent jurisdiction because the Sixteenth Division was the first division to exercise jurisdiction over the Family Settlement Agreement when it incorporated the agreement into the terms of the divorce decree on July 27, 2006. Additionally, Laura Allen urges that the respondents voluntarily submitted themselves to the jurisdiction of the Sixteenth Division "by virtue of their agreement to incorporate the distributions made under the agreement into the divorce decree"; that the Family Settlement Agreement, which was incorporated into the Sixteenth Division's decree, benefitted the respondents, and, as such, the respondents could enforce the agreement in the Sixteenth Division in accordance with Arkansas Rule of Civil Procedure 71;[3] and that the respondents were in privity with Dr. Allen in the divorce action. Respondent, the Ninth Division, recognizes the common-law principle of concurrent jurisdiction in its response, but asserts that the Ninth Division was the first to exercise jurisdiction in this case. The Ninth Division argues that the underlying subject matter is the Country Club house and the constructive trust over it, which was at issue in both the Ninth Division guardianship case and the Ninth Division constructive-trust case, both of which were filed prior to the divorce case in the Sixteenth Division. The Ninth Division notes that this fact is evidenced by the Family Settlement Agreement itself, which explicitly dealt with the issues already pending in the Ninth Division. The Ninth Division argues, in the alternative, that a writ of prohibition is inappropriate in this case because it has already acted in denying Laura Allen's motion to dismiss and because Laura Allen has not shown that she lacks the alternative remedy of an appeal. Separate respondents, Kay Allen Bird and Lori Allen, also assert that the Ninth Division was the first to exercise jurisdiction over this matter and specifically point to the Ninth Division's July 20, 2006 order authorizing Bank of the Ozarks as guardian of Dr. Allen's estate and Lori Allen as guardian of Dr. Allen's person to execute the Family Settlement Agreement, which was seven days before the Sixteenth Division's entry of the divorce decree. The separate respondents further argue that only the Ninth Division had personal jurisdiction over Kay Allen Bird and Lori Allen, individually and as guardian of Dr. Allen's person, and that Ark. R. Civ. P. 71 states that a non-party to an action "may" enforce an order, and, thus, it is not mandatory. As a final point, the separate respondents claim that Laura Allen waived the right to contest the jurisdiction of the 76 Ninth Division by failing to timely appeal the Twelfth Division's May 9, 2006 order transferring the case from the Twelfth to the Ninth Division. This court has repeatedly stated that a writ of prohibition is an extraordinary remedy that is only appropriate when the lower court is wholly without subject-matter jurisdiction. See, e.g., Ulmer v. Circuit Court of Polk County, 366 Ark. 212, 234 S.W.3d 290 (2006). Subject-matter jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. Id. In Conner v. Simes, we succinctly explained the standard of review for a writ of prohibition: The writ is appropriate only when there is no other remedy, such as an appeal, available. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. This court confines its review to the pleadings in the case. Moreover, prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Additionally, a writ of prohibition is not the appropriate remedy for the denial of a motion to dismiss. Conner v. Simes, 355 Ark. 422, 425-26, 139 S.W.3d 476, 478 (2003). Finally, this court will not issue a writ of prohibition for something that has already been done. Holmes v. Lessenberry, 297 Ark. 23, 759 S.W.2d 37 (1988) (per curiam). Where the circuit court's order was entered without or in excess of jurisdiction, this court has, on occasion, carved through the technicalities and treated a petition for a writ of prohibition as a petition for a writ of certiorari. Simes, 355 Ark. at 428, 139 S.W.3d at 479. We conclude that the Ninth Division has already acted on this matter in the guardianship case, PGD XXXX-XXXX, the constructive trust case, CV 2004-11842, and the present action, CV 2007-485. Accordingly, relief in the form of a writ of prohibition does not lie. See Holmes v. Lessenberry, supra. Nevertheless, this court has, on occasion, treated a petition for writ of prohibition as a petition for writ of certiorari. See Simes, 355 Ark. at 428, 139 S.W.3d at 479. A writ of certiorari is a remedy used to quash irregular proceedings. Lenser v. McGowan, 358 Ark. 423, 191 S.W.3d 506 (2004). This court has said: Certiorari lies to correct proceedings erroneous upon the face of the record when there is no other adequate remedy. Certiorari is available in the exercise of this court's superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. However, certiorari may not be used to look beyond the face of the record to ascertain the actual merits of a controversy, to control discretion, to review a finding upon facts or review the exercise of a court's discretionary authority. Certiorari is appropriate where a party claims that a lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Evans v. Blankenship, 374 Ark. 104, 286 S.W.3d 137 (2008). A writ of certiorari is extraordinary relief, and lies only where it is clear on the face of the record that there has been "a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy." Simes, 355 Ark. at 428, 139 S.W.3d at 480. Laura Allen is correct that this court has long recognized the common-law rule on concurrent jurisdiction, also known as the jurisdictional-priority rule: "Where concurrent jurisdiction is vested in different tribunals, `the first exercising jurisdiction 77 rightfully acquires control to the exclusion of, and without interference of, the other.'" Patterson v. Isom, 338 Ark. 234, 239, 992 S.W.2d 792, 795 (1999) (quoting Tortorich v. Tortorich, 324 Ark. 128, 131, 919 S.W.2d 213, 214 (1996)); see also Askew v. Murdock Acceptance Corp., 225 Ark. 68, 279 S.W.2d 557 (1955); Bradley v. State, 32 Ark. 722 (1878). In Askew, this court gave the rationale behind the rule, saying: The principle is essential to the proper and orderly administration of the laws; and while its observance might be required on the grounds of judicial comity and courtesy, it does not rest upon such considerations exclusively, but is enforced to prevent unseemly, expensive, and dangerous conflicts of jurisdiction and of process. If interference may come from one side, it may from the other also, and what is begun may be reciprocated indefinitely. Askew, 225 Ark. at 72, 279 S.W.2d at 560 (citations omitted). In Edwards v. Nelson, 372 Ark. 300, 275 S.W.3d 158 (2008), this court reiterated the governing jurisdictional-priority rule: Where two actions between the same parties on the same subject, and to test the same rights, are brought in different courts having concurrent jurisdiction, the court which first acquires jurisdiction, its power being adequate to the administration of complete justice, retains its jurisdiction and may dispose of the whole controversy, and no court of coordinate power is at liberty to interfere with its action. This rule rests on comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results. Id. at 303-04, 275 S.W.3d at 161 (quoting Askew, 225 Ark. at 72-73, 279 S.W.2d at 560-61). Moreover, this court has granted a writ of certiorari on the basis of the common-law concurrent jurisdiction rule. See Foster v. Hill, 372 Ark. 263, 275 S.W.3d 151 (2008) (holding that the concurrent jurisdiction rule was one ground for granting a writ of certiorari preventing a division of the Circuit Court of Crittenden County from acting on a matter, over which a coordinate division had already exercised jurisdiction).[4] The parties before this court are in profound disagreement over which division of the Pulaski County Circuit Court, the Ninth or the Sixteenth, first exercised jurisdiction over this matter. To summarize, Laura Allen asserts that the Sixteenth Division was the first division to exercise jurisdiction over the Family Settlement Agreement when it incorporated that agreement into the terms of the divorce decree on July 27, 2006. The Ninth Division classifies the underlying subject matter of this dispute as the Country Club house and maintains that it first exercised jurisdiction over this matter in both the guardianship case and the constructive trust case, which were filed in the Ninth Division prior to the filing of the divorce case in the Sixteenth Division. In addition, Kay Allen Bird and Lori Allen state that the Ninth Division was the first division to exercise jurisdiction over the Family Settlement Agreement when it authorized the execution of the agreement by the guardians in its order of July 20, 2006, which was seven days before the Sixteenth Division entered the divorce decree. We conclude that the jurisdictional-priority rule does not operate to prevent the *78 Ninth Division from acting on this matter. As already stated, a writ of certiorari is extraordinary relief and lies only when it is clear on the face of the record that there has been "a plain, manifest, clear, and gross abuse of discretion." Simes, 355 Ark. at 428, 139 S.W.3d at 480. This requirement has not been met in the instant case. We are persuaded by these facts: (1) the Family Settlement Agreement binds the parties in three separate causes of action, two of which were filed in the Ninth Division and decided by that division prior to the Sixteenth Division's entry of the divorce decree; (2) the constructive-trust action in the Ninth Division established the respondents' right to the proceeds from the sale of Longfellow Place, which was subsequently memorialized in the Family Settlement Agreement; (3) only one signatory to the Family Settlement Agreement was a party to the divorce action; (4) the Ninth Division issued an order authorizing the execution of the settlement agreement prior to the Sixteenth Division's incorporation of the Family Settlement Agreement into the divorce decree; and (5) the instant case, an action for specific performance pending in the Ninth Division, named all the parties to the Family Settlement Agreement. In short, it is clear to this court that the Ninth Division first took jurisdiction over matters that formed the heart of this dispute in the guardianship case, PGD XXXX-XXXX, the constructive trust case, CV 2004-11842, and the present action, CV 2007-485. Because of this history, we cannot say that the circuit judge in the Ninth Division committed a plain, manifest, clear, and gross abuse of discretion in her actions with regard to the Family Settlement Agreement in CV 2007-485 or in any other proceedings involving the Family Settlement Agreement. Furthermore, we do not view an appeal as an adequate remedy under these facts because of the immediate need to avoid a dangerous conflict between divisions of the circuit court over which division has subject-matter jurisdiction to dispense justice. See Edwards v. Nelson, supra; Askew v. Murdock Acceptance Corp., supra. Writ of prohibition denied. IMBER, J., not participating. NOTES [1] Dr. Allen has two children, Kay and Lori, and one grandchild, Carolyn Bird. Laura Allen has two children and three grandchildren. [2] The parties to the Family Settlement Agreement included: (1) Kay Allen Bird, individually, as natural guardian of Carolyn Bird, her daughter, as Successor Trustee of the Carolyn Allen Trust, and as beneficiary of the Joint Revocable Trust; (2) Lori Allen, individually, as guardian of Dr. Allen, and as beneficiary of the Joint Revocable Trust; (3) Bank of the Ozarks, as guardian of Dr. Allen's estate; and (4) Laura Allen, individually, and as trustee and beneficiary of the Joint Revocable Trust. [3] Ark. R. Civ. P. 71 provides, in pertinent part, that "[w]hen an order is made in favor of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party." [4] This case did not address the availability of an appeal as an alternative remedy.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618686/	615 So.2d 378 (1993) Karen PARKER v. WINN-DIXIE LOUISIANA, INC. No. 92-CA-885. Court of Appeal of Louisiana, Fifth Circuit. February 25, 1993. Charles B. Colvin, Stegeman, Colvin & Perry, Gretna, for Karen Parker, plaintiff/appellee. Paul M. Lavelle, Joseph B. Landry, Mary E. Brennan, Guste, Barnett & Shushan, New Orleans, for Winn-Dixie Louisiana, Inc., defendant/appellant. Before KLIEBERT, BOWES and GAUDIN, JJ. 379 BOWES, Judge. Defendant, Winn-Dixie Louisiana, Inc., appeals from a judgment awarding plaintiff $15,000.00, together with medical expenses of $1,170.00, plus interest and costs, for damages sustained when plaintiff slipped and fell in defendant's store. We amend the judgment, and as amended, affirm. FACTS On January 6, 1991, Ms. Karen Parker, plaintiff herein, entered defendant's store to purchase hair dye and meat. After wandering around the store for two or three minutes, she located the aisle carrying hair dyes and made her selection. While reading the box, she turned and started to walk toward the meat counter. She slipped on a clear liquid and fell, landing on her lower back and left arm. ANALYSIS Winn-Dixie Louisiana, Inc. (hereinafter "Winn-Dixie") first alleges that the trial court erred in finding that plaintiff slipped and fell due to a negligent and/or hazardous condition on the floor. Winn-Dixie's argument in this regard is two-fold. It alleges that plaintiff did not prove that the alleged fall was an accident, instead of a "staged" event, and that plaintiff did not prove that Winn-Dixie had constructive notice of the hazardous condition. The elements of a cause of action in tort are fault, causation and damages. Gresham v. Davenport, 537 So.2d 1144 (La. 1989). In addition, LSA-R.S. 9:2800.6 provides that: A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage. B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, that: (1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable; (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and (3) The merchant failed to exercise reasonable care. C. Definitions: (1) `Constructive notice' means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. (2) `Merchant' means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322 or 2695. [Emphasis supplied]. At the trial, plaintiff testified that she entered the store at around 10:00 p.m. and walked by the manager's "box" and the cash registers. Someone was sitting in the manager's area. She did not know where in the store the hair dye was located so she walked down the first aisle, and then the second aisle where the hair dye was located. She did not see anyone inspecting the aisles of the store. Plaintiff stood in front of the various kinds of hair dye while contemplating her selection. She picked up a box of hair dye and, while reading it, began to walk away. She then felt her feet slide out from under her and she landed "hard" in a sitting position. The accident was witnessed by a woman identified only as "Gail" and by Chester Aguillard, who entered the aisle at the same time that plaintiff hit the ground. Robert Weber was employed by Winn-Dixie and he went to the scene of the 380 accident. He testified that it was the manager's job to conduct safety checks, and that the manager on duty, Ivy Boudoin, was in his booth at the time of the accident and probably had been there for some 20-30 minutes because that would have been normal due to the fact that the accident occurred near closing time. Mr. Weber also testified that he was in the process of inspecting the aisles when the accident occurred, and that he would have been the one to do the aisle inspection at that time. Neither he nor anyone else had inspected the aisle five to ten minutes before the accident occurred. Mr. Weber further testified that he did not know the last time the aisle had been checked prior to the accident. Mr. Weber testified that he heard a "commotion" on the second aisle, so he went to investigate. He stated that he saw Ms. Parker "lower" herself onto the floor; however, he admitted, upon questioning by the court, it was possible that what he could have seen was the plaintiff lowering herself after attempting to get up from the fall. Mr. Weber inspected the area and found hydrogen peroxide on the floor. He also found a bottle of hydrogen peroxide under the rack. The top of the bottle was on; however, the safety seal underneath had been punctured. A court of appeal, may not set aside the trial court's factual findings in the absence of manifest error or unless the trier of fact is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). The trial court, after consideration of the testimony presented, apparently determined that the plaintiff slipped and fell as a result of slipping into a puddle of hydrogen peroxide. We cannot say that the trial court was clearly wrong in this finding. Furthermore, after consideration of the testimony of Ms. Parker in which she stated that a person was in the manager's booth at the time of the accident, and Mr. Weber's testimony that the manager was responsible for safety checks, that he (Mr. Weber) was in the process of inspecting the aisles and that aisle two had not been inspected five to ten minutes prior to the accident, we believe that a rational trier of fact could have concluded that Winn-Dixie had constructive notice of the liquid substance which was spilled on the floor as defined in LSA-R.S. 9:2800.6. Accordingly, we find no manifest error in the trial court's decision finding Winn-Dixie liable for plaintiff's damages. Winn-Dixie next alleges that the trial court erred in denying its motion for involuntary dismissal on the grounds that plaintiff did not show constructive notice, made at the close of plaintiff's case. LSA-C.C.P. art. 1672 B provides: In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. Under this article, the trial court is given discretion to decline to render judgment until after defendant has presented his case. Thus, the decision of the trial court denying of a motion for involuntary dismissal at the close of plaintiff's case presents nothing for the appellate court to review. See Blount v. Peabody Shoreline Geophysical, 439 So.2d 565 (La.App. 1 Cir. 1983); Miller v. Upjohn Co., 461 So.2d 676 (La.App. 1 Cir. 1984). As discussed, supra, we find no manifest error in the trial court's ultimate decision that plaintiff adequately proved her cause against defendant. We find this assignment to be without merit. In its third allegation of error, Winn-Dixie alleges that the trial court erred in admitting the deposition of Chester Aguillard into evidence. During presentation of the case, plaintiff's attorney offered the deposition of *381 Chester Aguillard, and professed to the court that three attempts to locate and to subpoena Mr. Aguillard had failed. Winn-Dixie objected, alleging that the deposition was taken for purposes of discovery and that plaintiff did not present subpoena returns. However, it was stipulated at the time of the taking of the deposition that "the deposition of aforementioned witness is hereby being taken ... for all purposes, in accordance with law." In addition, plaintiff's counsel directly stated, on the record, that he had attempted to locate and subpoena Mr. Aguillard and that his attempts were fruitless. The trial court is vested with great discretion in making a determination as to the unavailability of a witness for the purpose of receiving his deposition into evidence. We find no abuse herein. See Giesler v. United States Fidelity and Guar., 498 So.2d 292 (La.App. 4 Cir.1986). In its final allegation of error, Winn-Dixie alleges that the trial court's award of damages was excessive. In the assessment of damages in cases of offenses and quasi offenses, much discretion must be left to the judge or jury, and before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. In the event the appellate court finds from the record an abuse of discretion, the award may be disturbed by lowering it to the highest point which is reasonably within the discretion afforded the trier of fact. American Motorist v. American Rent-All, 579 So.2d 429, 433 (La.1991). In this case, plaintiff was treated by a chiropractor, Dr. William Batherson. He testified that he examined Ms. Parker the day after her accident. He observed that she experienced pain when attempting to move her lower back and, upon examination, he found tenderness and spasm of the right paralumbar musculature and tenderness of the lumbosacral joint. After performing a variety of tests, which revealed back pain, spasm and a diminished right ankle jerk reaction, Dr. Batherson concluded that plaintiff was suffering from a sprained lumbosacral joint with possible pressure on the S-1 nerve root. Plaintiff was treated for five months, during which time her condition progressed rather slowly, but did improve. He last saw her on June 13, 1991 at which time he found plaintiff's condition most improved; however, she still exhibited diminished right ankle jerk, causing some concern about a possible radicular problem. Plaintiff did not seek additional treatment with any other health care provider. At trial, plaintiff testified that her back pain had mostly resolved, and she would experience soreness in her lower back only when it rained. We conclude that based on this evidence before us the award of $15,000.00 in general damages, plus $1,170.00 for medical expenses for this soft tissue injury which was treated conservatively for five months, was excessive and we find that $7,500.00 is the highest award reasonably within the trial court's discretion. See Bauer v. White, 532 So.2d 506 (La.App. 1 Cir.1988); Webb v. Jordan, 540 So.2d 977 (La.App. 2 Cir.1989); Hebert v. National Union Ins. Co., 567 So.2d 788 (La.App. 3 Cir. 1990); Harris v. Schexnaydre, 560 So.2d 55 (La.App. 5 Cir.1990). For the above discussed reasons, the judgment of the trial court is amended to award plaintiff $7,500.00 in general damages, and as amended is affirmed. Costs are assessed equally against appellant, Winn-Dixie Louisiana, Inc. and appellee, Karen Parker. AMENDED, AND AS AMENDED, AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618512/	615 So.2d 698 (1992) Osvaldo PADRINO and Violeta Padrino, Appellants, v. Harriet G. RESNICK, Appellee. No. 91-2358. District Court of Appeal of Florida, Third District. November 10, 1992. Buckner & Shifrin and Robin S. Buckner, Miami, for appellants. Barnett, Clark & Barnard, Miami, and Frances Fernandez Guasch, Miami Lakes, for appellee. Before FERGUSON, JORGENSON and COPE, JJ. CORRECTED OPINION FERGUSON, Judge. On the main issue presented, this case is factually indistinguishable from Ballard v. American Land Cruisers, Inc., 537 So.2d 1018 (Fla. 3d DCA 1988), rev. denied, 545 So.2d 1366 (Fla. 1989), where we held that an argument which implored the jury to consider the financial burden a verdict for the plaintiff would have on the individual defendant, where the damage award would be paid by the insurer, was blatantly prejudicial. The defense stratagem was formulated, obviously, to capitalize on a juror's improper concern and inquiry as to who would pay for any damages awarded to the plaintiffs.[1] *699 Mr. Padrino, who was sixty-six years of age, suffered multiple fractures of both legs and one arm when his disabled vehicle was struck by the defendant's automobile on a busy expressway. There was evidence that the plaintiff was comparatively negligent in bringing his auto to a stop in a lane of moving traffic and attempting to repair the condition instead of steering the automobile off the roadway or moving away from the dangerous condition. Nevertheless, the jury verdict is contrary to the manifest weight of the evidence. Oakwood Hills Co. v. Horacio Toledo, Inc., 599 So.2d 1374 (Fla. 3d DCA 1992). Particularly, the denial of future medical benefits to Mr. Padrino and the denial of an award for future loss of consortium to Mrs. Padrino, are explainable only as an impact of the prejudicial argument. Reversed and remanded for a new trial on all issues. NOTES [1] A juror submitted the following question: "What is the financial status of both parties[?] How much, if any, is or was covered by insurance[?] Was there insurance[?] In response, the court instructed the jury: "Whether or not insurance coverage exists or does not exist is not a matter for your consideration." In closing defense counsel argued: "This is serious stuff. And it is serious to [Resnick], because nobody mentioned that this is her golden years. Nobody mentioned that this is her retirement. Nobody mentioned she worked all her life to be able to retire. And nobody mentioned what this kind of money would do to her, nobody mentioned that."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1920197/	245 Pa. Superior Ct. 537 (1976) 369 A.2d 758 KEYSTONE WIRE AND IRON WORKS, INC. v. VAN COR, INC., Appellant. Superior Court of Pennsylvania. Argued June 21, 1976. Decided November 22, 1976. 538 Jerome Poltenstein, Philadelphia, for appellant. C. Penners, Philadelphia, with him Joseph Lurie, Philadelphia, for appellee. Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. HOFFMAN, Judge: Appellant contends that appellee's petition to compel arbitration should have been dismissed because it was not served in compliance with the Rules of Civil Procedure. On October 15, 1975, appellee filed a petition to compel the appointment of an arbitrator pursuant to the Uniform 539 Arbitration Act.[1] The petition alleged the existence of three separate construction contracts, dated respectively December 31, 1968, June 13, 1968, and January 29, 1971. All three contained paragraphs which required arbitration of all disputes between the parties subject to the provisions of the Uniform Arbitration Act. Appellee's petition alleged that it had notified counsel for appellant of its appointment of an arbitrator, but that appellant had refused to fulfill its contractual obligation to name one. Appellee asked the court below to name an arbitrator so that the case could proceed.[2] Appellee mailed a copy of the petition to compel arbitration to an attorney for the appellant, but did not attempt service as required by the Rules of Civil Procedure.[3] Appellant filed objections to appellee's petition alleging that service was improper. The court below denied appellant's objection to the petition, and this appeal followed. This case presents a question of first impression: whether a petition to appoint an arbitrator must be served in conformity with the Rules of Civil Procedure. Appellee contends that the petition to appoint an arbitrator is authorized by § 4 of the Uniform Arbitration Act and does not require any special form of service: "If in the agreement provision be made for a method of naming or appointing arbitrators or an umpire, such method shall be followed, but . . . if a method be provided and any party thereto shall fail to avail himself of such method, . . . the court shall designate and appoint arbitrators, or an umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named 540 therein, . . .." No mention is made of the procedure which a party seeking to secure the appointment of an arbitrator must follow. The appellant, on the other hand, argues that the petition to name an arbitrator is governed by § 3 of the Act: "The party aggrieved by the alleged failure, neglect, or refusal of another to perform under a written agreement for arbitration, may petition the court of common pleas of the county having jurisdiction for an order to show cause why such arbitration should not proceed in the manner provided for in such agreement. Five days' notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by law for the service of a summons. The court shall hear and determine the matter upon the petition and answer and depositions, or after hearing of the parties in open court, as the court may determine; and the court upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not at issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement, or the failure, neglect, or refusal to perform the same, be at issue, the court shall proceed to the trial thereof. . . ." (Emphasis supplied). In effect, appellee's argument is that because § 4 of the Act makes no provision for service of the petition to compel arbitration, it was free to adopt any method of service. This argument is wrong. Section 4 is remedial, not procedural. The effect of a party's refusal to proceed with arbitration at one time depended upon the stage of the proceedings when the refusal occurred. If the dispute had been submitted to arbitration but no arbitrators chosen, there was, until the adoption of the Act of 1927, no remedy to compel the choice of arbitrators. 11 Standard Pennsylvania Practice 510 (1964). Thus, the inclusion 541 by our legislature of the remedial provisions of § 4, which allow a court to appoint arbitrators if either party defaults, was a necessary grant of power where none existed before. The failure of the legislature to specify a method by which an allegedly defaulting party is to be notified of the pendency of a petition for appointment of arbitrators should not be construed to authorize either an ex parte proceeding or one conducted by informal notice. The right to name an arbitrator is a valuable one, and we should not permit it to be forfeited without proper notice and an opportunity to defend. Cf. 6 C.J.S. Arbitration § 46; Farr & Co. v. Cia. Intercontinental De Navegacion De Cuba, 243 F.2d 342 (2d Cir. 1957). Furthermore, our Supreme Court has repeatedly held that the rules relating to service of process must be strictly followed, and jurisdiction of the court over the person of a party is dependent upon proper service being made. Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 422 Pa. 124, 221 A.2d 185 (1966); Neff v. Tribune Printing Co., 421 Pa. 122, 218 A.2d 756 (1966). Thus, not only is service of process in accordance with the Rules of Civil Procedure necessary to give a party notice of the pendency of an action, it is essential to the jurisdiction of the court over the person.[4] 542 In the instant case, the appellee failed to serve the appellant in accordance with the Rules of Civil Procedure. We hold, therefore, that the lower court should have dismissed the petition for appointment of arbitrators. Order of the lower court is reversed and petition dismissed. JACOBS, J., did not participate in the consideration or decision of this case. SPAETH, J., files a concurring opinion. SPAETH, Judge, concurring: The majority concludes that when an application for appointment of arbitrators has been made under § 4 of the Pennsylvania Arbitration Act of 1927, April 25, P.L. 381, No. 248, 5 P.S. § 164,[1] there must be service in accordance 543 with the Rules of Civil Procedure. However, the majority does not state which rule should apply. As I understand the majority opinion, the implication is that the same rule applies as when a petition is filed under § 3 of the Act, supra, 5 P.S. § 163, for an order to show cause why arbitration should not proceed in the manner provided for in the arbitration agreement;[2] in other words, that notice of a petition under § 3 and an application under § 4 must both be served in conformity with the Rules of Civil Procedure for the service of a summons. I disagree. I nevertheless conclude, for other reasons, that appellee's procedure was defective, and I therefore concur in the order reversing the order of the lower court and dismissing the application for appointment of arbitrators. I In order to answer the question of which rule should apply where an application for appointment of arbitrators has been made under § 4 of the Act,[3] it is necessary to consider, step by step, the procedure required when one party alleges that the other has failed to "perform under a written agreement for arbitration." 544 A Under § 3 of the Act the party aggrieved should petition the court for "an order to show cause why such arbitration should not proceed in the manner provided." The petition should aver that an agreement to arbitrate exists, and that the respondent has failed to comply with it. Notice of the petition must then be served upon the respondent "in the manner provided by law for the service of a summons." Pa.R.C.P. 1009. Service under this rule is usually made by the sheriff.[4] B After service has been made, the court, on petition and answer, perhaps supplemented by depositions, or after hearing, must decide whether to issue an order directing the parties to proceed to arbitration. A variety of situations may develop. For example, the respondent may prove that he is not a party covered by the arbitration agreement,[5] or that there is a condition precedent that has not occurred,[6] or that the issue is not covered by the agreement.[7] In any of such cases, the court will dismiss the petition. If, however, the court is satisfied that the respondent is in default, it will issue an order directing the parties to proceed to arbitration. 545 C Usually, no doubt, the parties will proceed to arbitration. If, however, one party refuses to comply, further proceedings will be required: The effect of a refusal to proceed depends upon the stage of the proceedings when the refusal supervenes. If the dispute has been submitted but no arbitrators chosen there was, until 1927 . . . no remedy to compel the choice of arbitrators. If the arbitrators have been chosen and a time set for hearing when one of the parties declines to proceed [the arbitrators have authority to dispose of the case] . . ." 11 Standard Pennsylvania Practice 510. If the failure to comply with the court's order is due to one party's refusal to pick arbitrators, the other party may make an application under § 4 of the Act, asking the court to "designate and appoint arbitrators." The party making this application need not be the "aggrieved party" who initially petitioned the court under § 3 of the Act.[8] Section 4 does not specify how an application for the appointment of arbitrators is to be served. This does not, however, represent a failure or oversight on the part of the legislature. No specification is needed. Since the matter is already before the court, by virtue of the petition filed and served under § 3 of the Act, the usual procedure applies, when the application, or motion or petition, is other than one used to initiate an action. This procedure is specified in Pa.R.C.P. 233, which provides in part: All legal papers, except writs and pleadings, to be served upon a party under any Rule of Civil Procedure including but not limited to motions, petitions, answers *546 thereto, rules, orders, notices, interrogatories and answers thereto, shall be served by leaving a copy for or mailing a copy to him at the address of the party or his attorney of record endorsed on an appearance or prior pleading of the party, but if there is no such endorsement then (1) within the county in which the action is pending by leaving a copy for or mailing a copy to him at the residence or place of business of the party; (2) outside the county in which the action is pending, whether or not within the Commonwealth, by (a) having a competent adult hand a copy to the person to be served; or (b) leaving a copy at or mailing a copy by registered mail to the last known address of the party to be served: or (c) if no address is known, publication in such manner as the court by general rule or special order shall direct. Once arbitrators have been appointed by the court, the disposition of the matters in dispute is the province of the arbitrators. II When the foregoing is applied to the present case, the appropriate disposition is apparent. Examination of the record shows that appellee never filed a petition under § 3 of the Act. Therefore appellee's application under § 4 was not properly before the court, and it should have been dismissed. NOTES [1] Act of 1927, April 25, P.L. 381, No. 248, § 1 et seq.; 5 P.S. § 161 et seq. [2] Appellee's petition was framed in three counts, one each for the three contracts. Each count was substantially the same and requested identical relief. [3] Rule 1009, Pa.R.C.P., and Rules cross-referenced therein. [4] Rule 233, Pa.R.C.P., provides in part: "All legal papers, except writs and pleadings, to be served upon a party under any Rule of Civil Procedure including but not limited to motions, petitions, answers thereto, rules, orders, notices, interrogatories and answers thereto, shall be served by leaving a copy for or mailing a copy to him at the address of the party or his attorney of record endorsed on an appearance or prior pleading of the party, but if there is no such endorsement then "(1) within the county in which the action is pending by leaving a copy for or mailing a copy to him at the residence or place of business of the party; "(2) outside the county in which the action is pending, whether or not within the Commonwealth, by "(a) having a competent adult hand a copy to the person to be served; or "(b) leaving a copy at or mailing a copy by registered mail to the last known address of the party to be served; or "(c) if no address is known, publication in such manner as the court by general rule or special order shall direct." (Emphasis supplied). Rule 233, Pa.R.C.P., clearly contemplates that service of petitions and rules may be accomplished without sheriff's service only after the action has been commenced pursuant to Rule 1007, Pa.R. C.P. Ordinarily, the jurisdiction of the court may not be invoked by petition and rule to show cause. Cooney v. Pennsylvania Osteopathic Association, 434 Pa. 358, 253 A.2d 256 (1969); Commonwealth v. Dauphin County, 354 Pa. 556, 47 A.2d 807 (1946); Section 3 of the Uniform Arbitration Act, however, expressly authorizes a party to petition for a rule to show cause why the arbitration should not proceed in the manner provided for in such agreement. It also provides that such an application shall be made in the manner provided by law for service of a summons. Service of a writ of summons is expressly provided for in Rule 1009, Pa.R.C.P., and Rules cross-referenced therein. Thus, in effect, a petition to compel arbitration is a bill to compel specific performance of an arbitration agreement. Nippon Ki-Ito Kaisha, Ltd. v. Ewing-Thomas Corp., 313 Pa. 442, 170 A. 286 (1934). [1] Section 4 provides in part: "If in the agreement provision be made for a method of naming or appointing arbitrators. . . or if a method be provided and any party thereto shall fail to avail himself of such method . . . upon the application of either party to the controversy, the court shall designate and appoint arbitrators." [2] Section 3 provides in part: "The party aggrieved by the alleged failure, neglect, or refusal of another to perform under a written agreement for arbitration, may petition the court of common pleas . . . for an order to show cause why such arbitration should not proceed in the manner provided for in such agreement. Five days' notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by law for the service of a summons.. . ." [3] I agree with the majority that the fact that § 4 does not specify a method of service does not mean that an ex parte proceeding is authorized. I also agree that "service of process in accordance with the Rules of Civil Procedure . . . is essential to the jurisdiction of the court over the person." Majority opinion at p. 541. Therefore the Rules of Civil Procedure do apply to this proceeding. [4] Pa.R.C.P. 1009 contains several cross-references to other rules, according to the type of defendant. In the instant case the defendant is a corporation and would be served under Rule 2180. [5] Goldstein v. International Ladies' Garment Workers' Union, 328 Pa. 385, 196 A. 43 (1938). [6] Dickens v. Pennsylvania Turnpike Commission, 351 Pa. 252, 40 A.2d 421 (1945). [7] J.S. Cornell & Son, Inc. v. Rosenwald, 339 Pa. 18, 13 A.2d 716 (1940). [8] Silk Service Corp. v. Neward Silk Co., 26 Luz.Leg.Reg.Rep. 339 (1931).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2588053/	205 P.3d 103 (2009) ROBINSON v. ROBINSON. No. 20081020. Supreme Court of Utah. February 12, 2009. Petition for certiorari denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2588141/	205 P.3d 101 (2009) 226 Or. App. 603 STATE v. EVANS. Court of Appeals of Oregon. March 11, 2009. Affirmed without opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2588144/	205 P.3d 101 (2009) 226 Or. App. 603 ERICKSON v. HILL. Court of Appeals of Oregon. March 11, 2009. Affirmed without opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1920256/	369 A.2d 1096 (1977) STATE v. Francis J. PAQUETTE. No. 76-77-C.A. Supreme Court of Rhode Island. March 4, 1977. Reargument Denied March 24, 1977. 1097 Julius C. Michaelson, Atty. Gen., John R. McDermott, Special Asst. Atty. Gen., for plaintiff. William F. Reilly, Public Defender, Barbara Hurst, Asst. Public Defender, for defendant. OPINION DORIS,, Justice. This case presents a question of first impression in this state. It involves an interpretation of the nature and scope of our immunity statute, G.L.1956 (1969 Reenactment) § 12-17-15, as enacted by P.L.1969, ch. 54, § 1. The statute reads as follows : "Compelling evidence in criminal proceedingsImmunity.In any criminal proceeding before the superior court or in any criminal proceeding or investigation before a grand jury, if a person refuses to answer a question or produce other evidence of any kind on the ground that he may be incriminated thereby, and if the attorney general, in writing, requests the presiding justice of the superior court to order that person to answer the question or produce the evidence, the said court, in its discretion after notice to the witness may order the person to answer the question or produce the evidence. In deciding such matters the presiding justice shall consider whether the person may be incriminated, thereby in some other jurisdiction. After complying, and if, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, that person shall not be prosecuted or subjected to penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order, he gave answer or produced evidence. But he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering or failing to answer, or in producing, or failing to produce evidence in accordance with the order." The cause is before us on defendant's appeal from a judgment of conviction resulting from his refusal to testify for the state in the case of State v. Brady, Ind. No. 73-1150, after having been granted immunity under § 12-17-15. The record discloses the following pertinent facts. On June 4, 1973, defendant was indicted with Wayne R. Brady on charges of forgery and conspiracy (Ind. No. 73-1150). Brady's case was severed from defendant's and Brady was brought to trial. On April 25, 1975, the state called defendant as a witness at Brady's trial, but he refused to testify on the ground that his answer might tend to incriminate him. On the same day the Attorney General, pursuant to the provisions of § 12-17-15, requested and received from the acting presiding justice of the Superior Court an order of immunity through which he sought to compel defendant to testify. The order directed defendant to answer " * * any and all questions dealing with Indictment 73-1150 concerning itself with conspiracy and forgery." It also provided that if he complied he would neither be "prosecuted nor be subjected to penalty nor forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with this order, he shall give answer or produce evidence, except 1098 as provided in said section 12-17-15 * ." The trial, at which defendant was represented by counsel, resumed on May 7, 1975. It appears from the record that defendant had given a postarrest statement to the police and had testified before the grand jury. On May 7, 1975, and again on the following day defendant, claiming a fifth amendment privilege against self-incrimination, twice declined to answer substantive questions because to do so, he argued, would be to waive any future claim of privilege. Through his attorney, he advised the trial justice that he was claiming a fifth amendment privilege because the immunity statute was ambiguous and he doubted whether the granted immunity protected him against prosecution for prior perjury before the grand jury if his trial testimony differed from his previous sworn statements. He argued that if he were not so protected, his trial answers would be incriminating. The trial justice advised defendant that the-immunity order left him no valid privilege. In explaining the extent of the immunity granted to defendant she spoke as follows: "Under the law in Rhode Island, 12-17-15, once the Court gives you immunity by law, `. . . that person shall not be prosecuted or subjected to penalty or forfeiture for or on account of any transaction, matter or thing concerning which . . .' he gives answer or produces evidence. * * * * "No matter what you say on the stand today which may incriminate you, the State of Rhode Island cannot prosecute you because of those answers." Notwithstanding these statements by the trial justice regarding the extent of the grant of immunity, defendant's counsel persisted in his demand for a clarification of both the statute and the immunity order, relying at least in substantial part on his client's statement that he had been told "by the Attorney General's Department after he was granted immunity, to wit, that he would be prosecuted for contempt and perjury if he changed his story." Despite the absence of any denial from the Attorney General's department, the trial justice insisted that ample clarification had been provided and reiterated in general terms that defendant had "been given immunity from prosecution." The trial justice made repeated attempts to induce defendant to testify and offered him numerous opportunities to purge himself after she had cited him for contempt. The defendant persisted in his refusal to testify and, as a result, the trial justice, invoking the terms of Super.R.Crim.P. 42(a), cited him on two occasions for contempt and sentenced him to six months on each citation. The sentences were to be served consecutively to each other and to the sentence he was then serving. On the second day of defendant's refusal to testify, the trial justice granted Brady's motion for judgment of acquittal on all counts.[1] I The defendant initially raises the specific question of whether a grant of immunity under the statute precludes a prosecution for perjury based on possible prior inconsistent sworn statements made by him before the grand jury. For reasons that follow our answer to that question is "Yes." As we noted above, the basic issue raised by this appeal involves the nature and scope of our immunity statute. The defendant's arguments now are, in essence, the same as those made by him in the court below. He contends that in the circumstances prevailing in the Superior 1099 Court it was reasonable for him to entertain a legitimate doubt that the granted immunity would protect him from a prosecution for perjury in the event that his trial testimony conflicted with his prior testimony before the grand jury. He argues that in the circumstances he was justified in standing on his fifth amendment right to remain silent; that unless it was demonstrated to him that the granted immunity was coextensive with and provided a complete substitution for the fifth amendment privilege it supported, he was not obliged to forfeit the privilege; that the immunity was not self-executing; and that neither the trial justice nor the prosecutor fulfilled his burden of demonstrating to him that he was immunized from prosecution for past perjury. Before answering the specific questions raised by defendant it may be helpful to discuss briefly the nature and scope of the immunity granted pursuant to § 12-17-15. It includes any and all criminal matter concerning which he is compelled to testify and precludes the use of any evidence discovered as a result of or derived from the testimony and evidence given by the witness. See State v. Vickers, 309 A.2d 324, 326-28 (Me.1973). The immunity granted under our statute is "transactional" immunity rather than "use and derivative use" immunity and is broader than the fifth amendment privilege itself. The difference between transactional immunity and use immunity has been described as follows by the Supreme Court of the United States: "We hold that * * immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being `forced to give testimony leading to the infliction of "penalties affixed to . . . criminal acts."' Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness." Kastigar v. United States, 406 U.S. 441, 453, 92 S. Ct. 1653, 1661, 32 L. Ed. 2d 212, 222 (1972). Under this state's statute, the only way in which an immunized witness can be prosecuted is for perjury, false swearing, or contempt "committed in answering or failing to answer, or in producing or failing to produce evidence in accordance with the order." Section 12-17-15. The statute clearly confers full transactional immunity and a witness who takes the stand under a grant of immunity conferred pursuant to § 12-17-15 and who testifies truthfully cannot be prosecuted regardless of prior inconsistent sworn statements. However, we hasten to point out that one who perjures himself by answering untruthfully at the trial can be prosecuted, immunity notwithstanding. Here, defendant risked prosecution only if he perjured himself by giving false testimony at the trial under the cloak of immunity. This precise point was litigated in Illinois in 1963 in People v. Walker, 28 Ill. 2d 585, 192 N.E.2d 819 (1963). Quoting Wigmore, the Illinois Supreme Court stated: "`But of course * * * an answer confessing under compulsion that an answer 1100 on a former examination was false cannot be used on a trial for perjury in the former answer: 8 Wigmore on Evidence, 3rd ed. sec. 2270, note 6; [citation omitted]. The short answer * * is that the [immunity] statute contains no exception as to prior perjury, and that such an exception would render it invalid. "The defendant's statements * * * before the grand jury fall squarely within the language of the statute under which he was given immunity. The falsity of those statements was shown by the testimony that he was compelled to give under penalty of punishment for contempt, after his claim of constitutional privilege had been made and overruled and after he had been granted immunity. A charge of perjury cannot, therefore, be predicated upon the falsity of those statements." Id. at 590-91, 192 N.E.2d at 823. The defendant in Walker had been given a grant of immunity under a statute similar to our own in order to compel his testimony at a burglary trial. He did in fact testify, but his statements varied from statements previously made by him at his probation hearing and before the grand jury. He was indicted for perjury and convicted but no attempt was made by the prosecution to prove which statements were true and which were perjurious. The defendant claimed, however, that the prior statements were untrue. The Illinois high court held that, to be valid, the statutorily granted immunity must be sufficiently broad to preclude "all future punishment for any offense to which the evidence relates." Id. at 590, 192 N.E.2d at 822. (Emphasis added.) The court concluded that the statute contained no exception for prior perjury and that if such an exception existed the statute would be rendered invalid. The judgment of conviction was therefore reversed. Accord, Kronick v. United States, 343 F.2d 436 (9th Cir. 1965). We concur in these sentiments and, consequently, we find no merit to defendant's argument that statements made under the grant of immunity might be used by the state to prosecute him for prior perjury before the grand jury. The question remains whether defendant was fairly apprised that the immunity granted was broader than his fifth amendment privilege. The defendant argues that if immunity is to substitute for a witness' fifth amendment privilege, the immunity conferred must be at least as broad as the privilege it replaces. He further argues that the burden of demonstrating that the immunity granted is coextensive with the fifth amendment privilege is on the state. A witness has, we think, a constitutional right to stand on the privilege against self-incrimination until it has been fairly demonstrated to him that an immunity as broad in scope as the privilege it replaces is available and applicable to him. Stevens v. Marks, 383 U.S. 234, 246, 86 S. Ct. 788, 794-95, 15 L. Ed. 2d 724, 732-33 (1966). We hold that the state must affirmatively demonstrate to the witness that a valid immunity from prosecution is his before it may hold him in contempt for refusing to answer questions that would otherwise be incriminating. We are not satisfied that under the circumstances of this case defendant was clearly advised that he had received immunity from any prior inconsistent statements that had been made before the grand jury. Although the trial justice attempted to advise defendant by explaining both the order of immunity and the statute, she did not advise and demonstrate to defendant that he could not be prosecuted for prior inconsistent statements before the grand jury which it is apparent was defendant's chief concern. The simple answer in this case would have been a statement by the trial justice that defendant had transactional immunity under the statute, as we have indicated above, and that he could not be prosecuted for any prior inconsistent statements *1101 involving the same transaction made before the grand jury. The defendant's next argument is that because he had not been fairly apprised that the immunity granted was coextensive with his fifth amendment privilege he could not be held in contempt. We agree. Since we conclude that the defendant had not been fairly apprised of the extent of the immunity granted, his refusal to answer the prosecutor's questions in the circumstances was not contemptuous. The finding that the defendant was guilty of contempt is error and must be reversed. The defendant's appeal is sustained. The judgment of conviction is reversed and the" cause is remanded to the Superior Court. NOTES [1] The record also shows that on August 7, 1975, another justice of the Superior Court granted defendant's motion to dismiss the indictment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1789582/	501 S.W.2d 625 (1973) Sherman BEDFORD, Jr., Appellant, v. The STATE of Texas, Appellee. No. 47355. Court of Criminal Appeals of Texas. November 28, 1973. Bluford B. Sanders, Jr., El Paso, for appellant. Steve W. Simmons, Dist. Atty., and William B. Hardie, Jr., Asst. Dist. Atty., El Paso, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State. OPINION REYNOLDS, Commissioner. A jury convicted appellant of, and assessed his punishment at 22 years for, the offense of robbery by firearms. The sole question is whether the trial court erred in finding, and we determine the court correctly found, that the in-court identification of appellant did not result from an impermissibly suggestive photograph or lineup. At about 1:30 p. m. on October 9, 1971, while Raul Victor Carrillo was engaged in delivering beer in the City of El Paso, he was approached on the sidewalk by a Negro man. This man exhibited and asked Carrillo if he knew the value of a Canadian nickel. Carrillo suggested to the man that he inquire in a nearby store, and the man departed. Shortly thereafter as Carrillo was closing the doors on his beer truck, he was again approached by the same Negro man. This time the man held a revolver in his hand. He told Carrillo to go to the back of the truck where the man took approximately $220.00 from Carrillo. Carrillo was directed to walk in a designated direction and, after doing so, Carrillo turned and saw the man getting into an automobile. Assisted by a passing motorist, Carrillo gave chase, but the robber eluded them. Carrillo reported the robbery to the police, furnishing a description of the robber and the automobile, including its license number. Appellant was arrested for the offense. As the jury trial proceedings approached the point where Carrillo would be asked to make an in-court identification of the robber, the trial judge, properly and pursuant to a motion, retired the jury and heard testimony bearing on Carrillo's identification of appellant as the robber. Following the 626 hearing, the trial judge found and ruled that Carrillo's in-court identification of appellant was admissible before the jury. It is this ruling that appellant attacks on the ground that Carrillo's in-court identification is tainted by a suggestive photograph of, and a line-up including, the appellant. In the non-jury hearing, it was shown that the police connected the name Sherman Bedford with the automobile license number reported by Carrillo. Three or four weeks following the robbery, Carrillo was requested to report to the police station to look at some photographs. After being shown four photographs of Negro men, one of which was that of appellant, Carrillo selected the photograph of appellant as that of the man who had robbed him. On that occasion, a police officer prepared a supplemental police report containing the information that Carrillo said he had been notified to come to the station to view some photos of a suspect in custody in San Antonio; however, the officer was not sure whether Carrillo actually made that statement or the officer had entered the information from his own knowledge of appellant's custody. Carrillo testified that it was only after, and not before, he had selected the photograph of appellant that he was told appellant was in custody of the San Antonio police. In the district attorney's office on November 6, 1972, Carrillo was shown three of the four photographs he had seen approximately a year earlier at the police station. From these three, he again picked the photograph of appellant. Two days later Carrillo attended a police line-up in which appellant, represented and assisted by counsel, appeared with five other Negro males. Carrillo identified the appellant in the line-up. Carrillo made an in-court identification of appellant. He acknowledged that he identified appellant as the same man who "held (him) up" and as the same man he "picked out from photographs and... from a line-up." Appellant recognizes that even where the pre-trial identification from photographs and line-ups is impermissibly suggestive, the in-court identification testimony is admissible if the record clearly reveals the identification was made from a prior independent observation. Benson v. State, 487 S.W.2d 117 (Tex.Cr.App.1972); Ward v. State, 474 S.W.2d 471 (Tex.Cr. App.1971). However, he contends that the testimony of the prosecuting witness shows that his in-court identification testimony was so tainted by the suggestive photograph and line-up as to make the in-court identification testimony inadmissible. In support of this contention, appellant cites only the following from the cross-examination of Carrillo: "Q Mr. Carrillo, I ask you whether or not, and please be perfectly honest with me, the main thing that is helping you, that has aided you in identifying Mr. Bedford today in Court, is the fact that you've seen this photograph of him two or three times in the past and the line-up. "A True." * * * * * "Q And again, you've been greatly aided in your identification of Mr. Bedford today in Court because you viewed these photographs and the line-up. "A True." * * * * * * "Q Isn't it a fact that viewing that photograph of Mr. Bedford aided you in identifying him at the line-up? "A True. "Q And isn't it a fact that viewing those photographs of Mr. Bedford, plus viewing the line-up, is a great aid to you in identifying him in Court today?" * * * * * * "A Yes." 627 We do not deem the contention to be sustainable. Notwithstanding the immediate impression imparted by the isolated testimony quoted, it must be weighed in its context with the totality of the evidence on which the trial judge based his ruling. The cross-examination immediately preceding that cited and relied on by appellant reads: "Q All right. And now, isn't it true that one of the essential reasons you were able to identify Mr. Bedford at the line-up last week was because a few days prior to the line-up you again viewed that photograph, Defense Exhibit 1 of Mr. Bedford. "A I had viewed the photograph, but still not on account I had seen the picture, on account I had a certain person on my mind. "Q All right. But isn't it true that this certain person, his image, was on your mind so clearly because you had seen these photographs twice? "A Well, the first time I saw the photograph, if I hadn't had the person so much on my mind at the time maybe I wouldn't have been able to pick up the photograph." Moreover, interposed between the last question and answer quoted by appellant, the record reveals the following answer was first given to the question: "A Well, I can't say no because I've seen him, I know what he looks like. It came back to my mind exactly everything, so what else could I say?" Furthermore, the prosecution's examination of Carrillo elicited the following: "Q All right, sir. And you've told us that you had a picture in your mind of the person who held you up on October 9, 1971. "A True. "Q All right, sir. When you viewed a photograph at the Police Department on October 21, 1971, did you recognize that picture of your that you had in your mind? "A I sure did. "Q All right. And you selected a photograph of that man who fit the picture in your mind. "A Right. "Q All right, sir. And when you came to my office, did you still have a picture of a man in your mind? "A Same person that I had. "Q All right, sir. And did you again recognize any body who fit that picture of the man you had in your mind? "A Yes, sir. "Q All right. When you came to the line-up in the County Jail, did you still have a picture in your mind of the man who had held you up on October 9, 1971. "A Yes, sir. "Q And did you see anyone in that line-up whom you recognized as being the picture in your mind. "A True. "Q And did you select that person? "A I circled the I circled the position he was standing on. "Q I see. "A Which means that "Q And when you came to Court this morning, did you still have a picture in your mind of the man who held you up on October 9, 1971? "A Yes, sir, as far as I can recollect. "Q All right, sir. And when I pointed to Mr. Bedford and asked you a 628 question, did you recognize Mr. Bedford as fitting the picture that you had in your mind? "A True. "Q All right, sir. Let me ask you then whether or not you have identified Mr. Bedford this morning because you recognized him as the man who held you up on October 9, 1971, or because you had seen photographs of an individual? "A The photograph is completely different than what he is now. He don't have a beard like he did at the time, at the time of the photograph, but yet, going back, I still can't forget the eye that was looking at me. "Q Okay. Let me ask you the question again, Mr. Carrillo, and I'll need a specific answer. Have you identified Mr. Bedford this morning in Court from your memory of the man who held you up on October 9, 1971? "A Yes, sir. "Q As far as you're concerned, Sherman Bedford is the same person whom you saw on October 9, 1971. "A Yes, sir. "Q And you have identified him this morning from that memory of the man you saw. "A Yes, sir." Implicit in the trial court's finding that Carrillo's in-court identification of appellant is admissible is the premise that such identification came from Carrillo's observation of appellant at the time of the robbery independent of and untainted by later observation of either appellant's photograph or appearance in the police line-up. Considered in context, all of the identification testimony furnishes clear and convincing proof in support of the finding of admissibility. Carrillo had sufficient opportunity to observe the robber before, during and after the robbery under ideal viewing conditions. The description of the robber given by Carrillo to the police immediately after the robbery conformed to appellant's actual description. Carrillo never identified any other person as the robber; at his first opportunity, he identified appellant from appellant's photograph and appearance in a line-up, at which appellant was assisted by counsel and to which no suggestion of illegality or impropriety is made; and Carrillo never failed to identify appellant as the robber on any occasion. In the aggregate, Carrillo's testimony is that he identified the appellant in court, by photograph and in the line-up solely from his observation and recognition of appellant at the scene of the robbery and is not, as appellant asserts, that his in-court identification was suggested by the photograph or the line-up. See Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973); Dorsey v. State, 485 S.W.2d 569. The procedure for testing the identification was proper, and the in-court identification was independent of any impermissibly suggestive source. See Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969). The sole ground of error is overruled. The judgment of conviction is affirmed. Opinion approved by the Court.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619184/	615 So.2d 583 (1993) PACCAR FINANCIAL CORPORATION and Hawk Recovery Bureau v. Don HOWARD. No. 90-CA-0083. Supreme Court of Mississippi. March 11, 1993. 584 James L. Quinn, Aultman Tyner McNeese & Ruffin, Hattiesburg, for appellant. Jay L. Jernigan, Hattiesburg, for appellee. Before DAN M. LEE, P.J., and SULLIVAN and McRAE, JJ. McRAE, Justice, for the Court: PACCAR Financial Corporation and Hawk Recovery Bureau, non-resident corporations, appeal an adverse jury verdict in a conversion case from the Circuit Court of Perry County. While we find that the circuit court properly granted a jury instruction authorizing recovery on an agency theory, we reverse and remand on the question of damages, finding there is insufficient evidence to support the jury's award. I. On September 1, 1983, Kelsey Herrin purchased a 1983 model eighteen-wheel Kenworth truck from Wichita Kenworth, Inc. in Wichita, Kansas.[1] The details of the 585 transaction were incorporated in a security agreement/retail installment contract executed by Herrin and the Kenworth dealer. The document provided that Herrin pay the total time price of $96,080.55 in forty-eight (48) monthly installments of $1,754.60 each, commencing October 14, 1983. The instrument further provided for payment of late charges if installments were not timely paid and that the dealer or its assigns could repossess the truck if Herrin defaulted. Paragraph 12 of the terms and conditions of the document provided: Buyer agrees that if seller repossesses the collateral or otherwise obtains possession of it, seller will not be in wrongful possession of any property contained in the collateral or attached to it in which seller does not have a security interest. Seller agrees to make any such property available to buyer to take back at a place reasonably convenient to both parties. The dealer then assigned the contract to PACCAR. In April 1985, Herrin was delinquent in payment of installments accruing pursuant to the contract. He made an agreement with Don Howard whereby Howard would assume possession and operation of the truck. Howard apparently agreed to run the truck and assume responsibility for payments, maintenance and repairs of the truck. He confirmed his obligations with Connie Huff, credit representative for PACCAR Financial Corporation (hereinafter PACCAR). Howard paid the installments due PACCAR for April, May, June and July, 1985. In August, 1985, PACCAR requested the services of Hawk Recovery Bureau (hereinafter Hawk) to repossess the truck. An individual working for Hawk obtained assistance from Perry County Deputy Sheriff McRee for the purpose of finding Howard's residence. Upon their arrival at Howard's house, they informed him that Hawk had come to repossess the truck. Howard was told that the truck would be taken to Dossett Pontiac in Hattiesburg, where it would be parked inside a locked gate. Howard testified that the repo men suggested that he remove his personal belongings from the truck. He removed a suitcase but left other personal belongings behind. Within the next few days, Howard went to Dossett Pontiac in Hattiesburg, but the truck was not there. He called Huff, the PACCAR credit representative, and was informed that the truck and his remaining personal belongings were at the Kenworth dealer in Wichita, Kansas. Huff testified that she told Howard that he could retrieve his property at that location or PACCAR would make arrangements to return it. Howard stated that when he asked Huff how he was supposed to get his personal possessions back, she replied, "Lots of luck." A few days later, Howard's attorney called Huff. She testified that she told the attorney that Howard was primarily concerned about some tires that were on the truck, but he had not given her instructions regarding the return of the property. Huff further testified that PACCAR delivered Howard's personal property to Freeman Windham, an acquaintance of Howard's who lived in Witchita, with the request that he take it to Hattiesburg. Howard testified that when Windham called him, he told him that he did not know what to do with the property since he had already filed the lawsuit. Windham then placed Howard's property in storage in Hattiesburg. On January 17, 1986, Howard filed his complaint against PACCAR and Hawk. Process pursuant to Miss. Code Ann. § 13-3-57 (1972) via the Secretary of State was completed upon PACCAR and Hawk. Subsequent to filing the complaint, Howard's attorney conferred by telephone with Dennis Opacki, in-house counsel for PACCAR. Opacki, by letter dated June 26, 1986, informed Howard's attorney that Windham had picked up the property and placed it in storage in Hattiesburg. Receiving no response from his letter, Opacki again wrote to Howard's attorney on August 4, 1986, stating: I have heard nothing further from you since our telephone conversation of June 26, 1986. Presumably you have contacted your client and he had obtained the 586 materials he was bringing suit over. I would appreciate hearing from you so we can close this matter without having to retain local counsel. No answer or other response by PACCAR or Hawk was filed in the pending action. On September 25, 1986, Howard obtained a default judgment against PACCAR and Hawk. On December 23, 1986, PACCAR's counsel wrote to Howard's attorney referencing a November 14, 1986, telephone conversation confirming that PACCAR had contacted Windham and that Howard's belongings were still in Hattiesburg. The letter noted that Howard's attorney had not returned telephone messages left by the PACCAR attorney. Receiving no response to the letter dated December 23, 1986, PACCAR's counsel again wrote Howard's attorney on May 20, 1987, indicating that Howard still had not contacted Windham and stating that the pending lawsuit was without merit. Failing to receive responses to its communications, on September 24, 1987, PACCAR retained counsel in Hattiesburg to inquire about the status of the action. Upon learning that default judgment had been taken, PACCAR promptly moved to aside.[2] PACCAR answered, admitting that it obtained possession of the Kenworth truck, but denying responsibility for Howard's property. PACCAR admitted possession of personal property left in the truck but contended it had inventoried the property and requested Howard, without success, to identify and take possession of all the items. On September 14, 1989, the case was tried before a jury. Howard introduced a list of personal property which, he asserted, was in the truck on the date it was repossessed, placing a value of $1,576.16 on the goods. Howard attempted unsuccessfully to introduce into evidence the purchase price of four tires he placed on the truck, as well as lost earnings consequential to the repossession. Upon conclusion of Howard's case, PACCAR's motion for a directed verdict was overruled. Likewise, its request for peremptory instruction was denied. The case was submitted to the jury. Over PACCAR's objection, Instruction P-7 was granted. This instruction permitted Howard to recover from PACCAR, if the jury found from a preponderance of the evidence that Hawk was the agent of PACCAR, acting in the scope of his employment at the time of the alleged incident, and that Hawk wrongfully had taken items and goods belonging to Howard. From the jury verdict awarding Howard $25,000, PACCAR and Hawk appeal. II. PACCAR first asserts that the trial court erred in denying its motion for a directed verdict, as well as its subsequent request for a peremptory instruction. Any error in failing to grant a directed verdict at the end of the plaintiff's case, however, was waived when PACCAR introduced evidence in its own behalf. Miss.R.Civ.P. 50. See also Patrick v. Michigan National Bank, 220 So.2d 273 (Miss. 1969); Broadhead v. Gatlin, 243 Miss. 386, 137 So.2d 909 (1962). The effect of this waiver, however, is explained in Clements v. Young, 481 So.2d 263 (Miss. 1985), where we stated: In both jury and non-jury cases, civil and criminal, we have repeatedly held that where a defending or responding party, following the overruling of a motion for a directed verdict or a motion to dismiss, goes forward with evidence of his own, he waives the right to assign on appeal error in the failure of the trial judge to grant his motion. See, e.g., Ellis v. 587 State, 469 So.2d 1256, 1260 (Miss. 1985); Shavers v. State, 455 So.2d 1299, 1302 (Miss. 1984); Engineering Service Co., Inc. v. Minor, 346 So.2d 916, 918 (Miss. 1977); Illinois Central Railroad Co. v. Perkins, 223 Miss. 891, 915-16, 79 So.2d 459 (1955). Because it is often misunderstood, this point requires comment. By offering evidence of his own, the defending party in no way waives the right to challenge the sufficiency or weight of the evidence in the event of an adverse judgment. What the waiver rule means is he must proceed on the basis of the evidence before the court at the time the challenge is made and not in the limited state in which it may have been back when the motion to dismiss was made. Put otherwise, all of these motions the motion to dismiss, the motion in a jury trial for a directed verdict made at the end of the plaintiff's or movant's case, as well as the request for a peremptory instruction at the end of all of the evidence or a motion for judgment notwithstanding the verdict thereafter, are procedural vehicles for challenging the sufficiency of the plaintiff's or movant's case. Each requires that the court consider all of the evidence before it at the time the motion is offered. (Original emphasis) Id. 481 So.2d at 268. The sufficiency of Howard's evidence must therefore be considered on the basis of all the evidence offered, and the court's ruling tested under its denial of PACCAR's request for a peremptory instruction. We articulated our familiar and well-settled scope of review in Weems v. American Sec. Ins. Co., 450 So.2d 431 (Miss. 1984) by stating: The request for a peremptory instruction or the subsequent motion for a judgment notwithstanding the verdict tests the legal sufficiency of the evidence supporting the verdict. Either asks the court to hold, as a matter of law, that the evidence is insufficient to support a verdict in favor of the non-movant. Where such a request has been made, the trial court must consider all of the evidence not just the evidence which supports the non-movant's case in the light most favorable to the party opposed to the motion. The non-movant must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable men could not have arrived at a contrary verdict, granting the motion is required. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the jury's verdict allowed to stand. See, e.g., General Tire and Rubber Co. v. Darnell, 221 So.2d 104, 105 (Miss. 1969); Paymaster Oil Co. v. Mitchell, 319 So.2d 652, 657 (Miss. 1975); City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss. 1983). Id. 450 So.2d at 435. While Howard's short claim for relief is somewhat lacking in specificity, PACCAR and Howard concede that this is an action for conversion of personal property. The tort of conversion has as its genesis the old common law action of trover. The theory of trover was that the defendant, by "converting" a chattel to his own use, appropriated the plaintiff's rights, for which he was required to make compensation. The plaintiff was therefore not required to accept the chattel when it was tendered back to him; and he recovered as his damages the full value of the chattel at the time and place of the conversion. When the defendant satisfied the judgment in trover, the title passed to him, and plaintiff had nothing more to do with it. The effect was that the defendant was compelled, because of his wrongful appropriation, to buy the chattel at a forced sale, of which the action of trover was the judicial instrument. Prosser, The Nature of Conversion, 42 Cornell Law Quarterly 168 (1956-57). The modern law of conversion emerged when the basic distinctions between the theories of trespass and trover were articulated 588 in Fouldes v. Willoughby 8 M.W. 540, 151 Eng.Rep. 1153 (1841). Prosser and Keeton, Handbook of the Law of Torts, § 14 (5th ed. 1984) explains the Fouldes decision and its effect on the law of conversion as follows: The defendant wrongfully refused to carry plaintiff's horses on a ferry-boat, and put them off. The plaintiff remained on board, and as a result lost his horses. It was held that this was a trespass, but not a conversion, since there was no interference with the plaintiff's "general right of dominion" over the horses. At about the same time, in an American case, a young lawyer named Abraham Lincoln succeeded in convincing the court that there was no conversion when a horse left with the defendant to be agisted and fed was ridden, on one occasion, for a distance of fifteen miles, since it was not a sufficiently serious invasion of the owner's right. Following such decisions, the tort of conversion has been confined to those major interferences with the chattel, or with the plaintiff's rights in it, which are so serious, and so important, as to justify the forced judicial sale to the defendant which is the distinguishing feature of the action. Trespass remains an occasional remedy for minor interferences, resulting in some damage, but not sufficiently serious or sufficiently important to amount to the greater tort. In determining the seriousness of the interference, and the justice of requiring the defendant to pay the full value, all of the relevant factors in the case are to be considered. These include the extent and duration of the defendant's exercise and control over the chattel; his intent to assert a right which is in fact inconsistent with the plaintiff's right of control; the defendant's good faith or bad intentions; the extent and duration of the resulting interference with the plaintiff's right of control; the harm done to the chattel; and the expense and inconvenience caused to the plaintiff. These elements are adopted and explained in Restatement (Second) of Torts, § 222A (1965), Illustrations 5 and 6, as follows: 5. A takes possession of a house and finds B's furniture in it. A removes the furniture to a storage warehouse, stores it in the name of B, and notifies B that he may come and get it. This is not a conversion. 6. The same facts as in Illustration 5, except that A removes the furniture to a warehouse at a distance, so that B is subjected to great inconvenience and expense in recovering it. This is a conversion. The elements of conversion were set out by this Court in Miss. Motor Finance, Inc. v. Thomas, 246 Miss. 14, 149 So.2d 20 (1963), where we stated: It is well settled that the acts alleged to constitute a conversion must be positive and tortious. 89 C.J.S. 534, Trover and Conversion § 4, p. 534... . In McJunkin v. Hancock, 71 Okla. 257, 176 P. 740, the Court said: "To make out a conversion, there must be proof of a wrongful possession, or the exercise of a dominion in exclusion or defiance of the owner's right, or of an unauthorized and injurious use, or of a wrongful detention after demand. Sivils v. Aldridge, [62 Okl. 89], 162 Pac. 198." In Spooner v. Holmes, 102 Mass. 503, 3 Am.Rep. 491, Mr. Justice Gray, speaking for the Court said: "Action of tort * * cannot be maintained without proof that the defendant either did some positive wrongful act with the intention to appropriate the property to himself, or to deprive the rightful owner of it, or destroyed the property." In Lee Tung v. Burkhart, 59 Or. [194] 195, 116 P. 1066, the Court held that in order to maintain an action for conversion, there must have been, on the part of the defendant, some unlawful assumption of dominion over the personal property involved, in defiance or exclusion of the plaintiff's rights, or else a withholding of the possession under a claim of right or title inconsistent with that of plaintiff... . 246 Miss. at 20, 149 So.2d at 23. In Walker v. Brown, 501 So.2d 358 (Miss. 1987) we stated that "[c]onversion requires 589 an intent to exercise dominion or control over goods which is inconsistent with the true owner's right." Id. at 361. In the case sub judice, PACCAR employed Hawk to repossess the truck. It is undisputed that Hawk, through its personnel, peaceably obtained possession of the vehicle from Howard. It further is undisputed that Howard was given permission and the opportunity to remove his personal belongings from the truck. Howard related that he was told, and led to believe, that the truck and his property would be taken to Dossett Pontiac in Hattiesburg. The vehicle was removed, not to Hattiesburg, but to the Kenworth dealer in Wichita, Kansas. No one advised Howard of any change in plans. When Howard could not find the repossessed vehicle in Hattiesburg, he called Huff, PACCAR's credit representative, who was unaware that the truck had been repossessed. Howard called back and was told that the vehicle was in Wichita, Kansas. Although these conversations took place only a few days after the August, 1985, repossession, there is nothing in the record showing any significant effort by PACCAR to return the requested property. Howard's attorney called Huff within a week. Huff testified that PACCAR did not intend to keep Howard's property. She further related that Howard's attorney was supposed to call her back and give her instructions as to what to do with the personal property. She heard nothing more of the matter until June, 1986, when PACCAR received notice of the lawsuit. While PACCAR was not in wrongful possession of Howard's personal property at the time of repossession, we must assess its subsequent actions in the light most favorable to the jury verdict. PACCAR admitted possession of the property when Howard's attorney called shortly after the repossession. Its only excuse for not returning his property was Huff's statement that she was waiting for instructions from Howard's attorney. While this might suffice temporarily, absent further instructions, PACCAR should have made an additional effort to return the property. Instead, without Howard's prior consent or approval, PACCAR placed Freeman Windham in possession of the property and requested that he make delivery to Howard. PACCAR made no effort to ascertain what Windham did with Howard's belongings until approximately ten (10) months after the repossession upon receiving legal notice that the present action had been filed. Under these circumstances, it was not unlikely or unreasonable that a jury might find PACCAR's actions constituted an unlawful detention of the chattels without regard to the fact that original possession was lawfully obtained. Recognizing that, under the original circumstances of this case, one in possession of another's chattels is not ordinarily required to do more than permit the owner to retrieve his property, we cannot close our eyes to the fact that the chattels were removed to Wichita, Kansas, a foreign jurisdiction, far removed from the destination Howard was led to believe they would be taken. While the failure of Howard's attorney to respond to PACCAR's letters subsequent to institution of legal proceedings is neither approved nor condoned, this does not absolve PACCAR from the jury resolution. Upon reviewing the record, we cannot say, therefore, that the trial court erred in denying PACCAR a directed verdict or peremptory instruction. III. PACCAR next questions the sufficiency of Howard's pleading to authorize the injection of an agency issue for jury resolution. While Miss.R.Civ.P. 8 abolishes many technical requirements of pleadings, it does not eliminate the necessity of stating circumstances, occurrences, and events which support the proffered claim. Although Miss.R.Civ.P. 15(b) permits trial of issues not raised by the pleadings with the express or implied consent of the parties, the Comment to the Rule states: [i]t is an invariable principle of practice that the admissible proof in any case must come within the allegations of the pleadings and that it avails nothing to prove what is not charged. 590 A party, however, is entitled to have jury instructions given regarding all material issues presented in the pleadings or evidence. Glorioso v. Young Men's Christian Association of Jackson, 556 So.2d 293, 295 (Miss. 1989); Barkley v. Miller Transporters, Inc., 450 So.2d 416 (Miss. 1984). Likewise, a party is entitled to have his theory of the case presented to the jury through instructions, provided there is evidence to support it. Alley v. Praschak Mach. Co., 366 So.2d 661 (Miss. 1979). Having reviewed the record, we find, therefore, that despite any deficiencies in the pleadings, there was sufficient evidence introduced at trial to show that Hawk acted as PACCAR's agent to warrant the complained of instruction to the jury. IV. Relying on Surrette v. B & M Building Supply, 441 So.2d 551 (Miss. 1983), Hawk argues that the default judgment rendered against it is void because the complaint upon which the judgment was based failed to state a claim upon which relief can be granted. In Surrette, a default judgment, which ordered the enforcement of a materialmen's lien, was declared void because the complaint was so deficient in substance as to negate a cause of action. While the complaint in this case is, indeed, short and concise, we find that there is sufficient compliance with Miss.R.Civ.P. 8 to state a claim for relief. V. Finally, Hawk maintains that if the default judgment is valid, the amount of damages awarded by the jury is contrary to the overwhelming weight of credible evidence and a remittitur should be required. The measure of Howard's damages is the value of the personal property at the time and place of conversion. Masonite Corporation v. Williamson, 404 So.2d 565 (Miss. 1981). Howard claimed that the total value of his personal property in the truck when it was repossessed was $1,576.16. There is no evidence that Howard's allegations that he suffered between $20,000.00 and $25,000.00 in lost wages was placed before the jury. Furthermore, tires valued at $2,224.64, which Howard had mounted on the truck, became fixtures of the collateral and thus the amount expended on them was not recoverable as damages. Miss. Code Ann. § 75-9-314 (1972). We find, therefore, that the jury's award of $25,000.00 is unsupported by the evidence. While we are authorized, pursuant to Miss. Code Ann. § 11-1-55, to affirm the judgment against Hawk upon condition of remittitur, we believe justice would be better served by remanding the case to the trial court for reconsideration of the damages. VI. Having carefully reviewed the record, we find that the circuit court did not err in refusing to grant PACCAR's motion for a directed verdict or a peremptory instruction. Further, the circuit court did not err in granting Jury Instruction P-7. However, finding that the jury's award of $25,000.00 is unsupported by the evidence, we reverse and remand for trial on damages only. REVERSED AND REMANDED FOR TRIAL ON DAMAGES ONLY. HAWKINS, C.J., DAN M. LEE and PRATHER, P.JJ., and SULLIVAN, PITTMAN, BANKS, ROBERTS and SMITH, JJ., concur. NOTES [1] The jury verdict resolved all conflicting facts in favor of Howard. The facts stated are, for the most part, undisputed. [2] Nothing contained in the order affected that part of the previous judgment of the court against Hawk. However, Hawk's failure to answer or respond to the complaint spawned another motion for, and rendition of, default judgment upon termination of trial testimony and prior to submission of the case to the jury.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619185/	248 N.W.2d 92 (1976) John A. PETERS, Appellee, v. IOWA EMPLOYMENT SECURITY COMMISSION et al., Appellants. No. 57559. Supreme Court of Iowa. December 15, 1976. Walter F. Maley and Blair H. Dewey, Des Moines, and Richard C. Turner, Atty. Gen., and Richard E. Haesemeyer, Solicitor Gen., for appellants. H. M. Coggeshall, Des Moines, for appellee. Heard before MOORE, C. J., and MASON, UHLENHOPP, HARRIS and McCORMICK, JJ. MASON, Justice. The Iowa Employment Security Commission (hereinafter Commission) appeals from 93 a decree of the Polk District Court sustaining a writ of certiorari issued upon the petition of John A. Peters. Peters filed the certiorari action December 13, 1973, and a writ was issued the same day. Peters alleged in his petition for writ of certiorari that he was honorably discharged from the armed forces of the United States following wartime service and was therefore entitled to the benefits of the Soldiers Preference Law, chapter 70, The Code, 1973. He further alleged his impending discharge was in violation of section 70.2, The Code, in that his age was the only ground for his discharge and was in violation of section 70.6, in that notice and hearing were not afforded him. The trial court, on its own motion, issued an order December 20 enjoining the Commission from terminating Peters' employment and from failing to pay him his usual salary. The Commission in answer filed December 24 denied any illegal action on its part and asserted sections 97B.45 and 97B.46, The Code, were controlling as to Peters' retirement. In reply Peters denied that sections 97B.45 and 97B.46 were controlling, alleged the Commission's retirement policy violated his rights of due process and equal protection under Amendment 14 to the United States Constitution and stated the denial of his extension request was arbitrary resulting in an equal protection deprivation. July 22, 1974, a decree was entered sustaining the writ and enjoining Peters' compulsory retirement. The Commission's appeal followed. Peters, director of the Unemployment Insurance Division of respondent Commission, was 70 years of age at time of trial and had been employed by the Commission since August 25, 1936. Peters' public employment was interrupted when he was inducted into the armed forces June 20, 1942. He was honorably discharged March 31, 1943. In 1973 the legislature reduced the retirement age for public employees covered by the Iowa Public Employees' Retirement System from 70 to 65 years of age, subject to the power of public employers to adopt a policy prescribing retirement for their employees at any age not less than 65 years. 1973 Session of the Sixty-fifth General Assembly, chapter 149, sections 7 and 8. In response to the legislature's action the Commission issued Administrative Letter No. 184 October 4, 1973, outlining a revised retirement policy. The provision of that revised policy pertinent hereto provided that all employees 65 years of age or older on June 30, 1973, would be retired effective December 31, 1973. Allowing for a nine-month transition period 65 years of age was established as the mandatory retirement age for all Commission employees unless an extension was granted. The employee's position, work performance, attendance and physical well-being were denominated as factors to be considered in granting or denying extensions. Under the provisions of the Commission's new retirement policy Peters was scheduled to retire December 31, 1973. December 3 he requested an extension of employment until April 30, 1974. That request was denied by the Commission the next day. At trial it was established that at or near the time of the denial of Peters' extension request five other Commission employees received extensions. In addition, subject to the Commission's relevancy and materiality objection, H.F. 1109, 1974 Session, Sixty-fifth General Assembly, was introduced in evidence at trial. That bill would have amended section 70.2 by adding thereto the following: "However, this section shall not prevent the mandatory retirement of a veteran because of age where such retirement is pursuant to a retirement policy or plan adopted by the public department or agency employing the veteran as authorized by law." No mention of that bill was included in the trial court's findings of fact, conclusions of law or decree. The trial court concluded in part as follows: 94 "Unless Sec. 70.2 was impliedly repealed by Sec. 97B.45, Plaintiff may not be compulsorily retired by the Commission, and the Court concludes that Sec. 70.2 has not been impliedly repealed. Sec. 4.7 of the Code of Iowa provides that conflict between general and special statutes `shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision.' "As between Sec. 70.2 and Sec. 97B.45, Sec. 70.2 is a special statute, whereas Sec. 97B.45 is a general statute." The facts presented in this appeal are undisputed. The Commission only appeals from the trial court's ruling as a matter of law that section 70.2 and not section 97B.45 is controlling. I. In seeking reversal the Commission initially directs this court's attention to the alleged fact that the actuarial soundness of a pension fund is dependent upon a fixed retirement age for the employees covered by the pension system. Assuming arguendo that fact was established, although no evidence was presented in support thereof, the significance bestowed upon it by the Commission would be unjustified in light of the fact the legislature did not deem it necessary to enact a fixed mandatory retirement age. The establishment of 65 years as the retirement age for public employees is subject to the previously noted option of public employers to prescribe retirement at any age not less than 65 years. The Commission's initial contention is of little, if any, assistance in the resolution of this appeal. II. The scope of this court's review is set forth in State v. Cullison, 227 N.W.2d 121, 126 (Iowa 1975), in this manner: "Certiorari is not an equitable proceeding. The action is by ordinary proceedings, rule 317, R.C.P., which means it is a law action. * * * [citing authority]. Consequently, our review ordinarily is not de novo and we do not review fact findings of the lower tribunal further than to ascertain if they are sustained by competent and substantial evidence. * * * [citing authorities]. "* * * "Where there is no factual dispute and no conflicting inferences may be drawn from the facts it is for us to review trial court's conclusions as a matter of law. * * * [citing authority]. And in reviewing law issues, this court is not bound by trial court's ruling. * * * [citing authorities]." See also Collier v. Denato, Iowa, 247 N.W.2d 236, 238 (Filed November 17, 1976). The present case is unencumbered by factual dispute and although multiple contentions are urged the precise issue presented can be stated as follows: As a matter of law, in litigation precipitated by the compulsory retirement of an honorably discharged veteran public employee, is chapter 70, The Code, controlling or do the provisions of sections 97B.45 and 97B.46 prevail? Section 70.1, The Code, 1973, provided in part as follows: "In every public department and upon all public works in the state, and of the counties, cities, towns, and school corporations thereof, honorably discharged men and women from the military or naval forces of the United States in any war in which the United States was or is now engaged, * * , who are citizens and residents of this state shall be entitled to preference in appointment, employment, and promotion over other applicants of no greater qualifications. * ." Section 70.2, The Code, 1973, provided: "The persons thus preferred shall not be disqualified from holding any position hereinbefore mentioned on account of age or by reason of any physical disability, provided such age or disability does not render such person incompetent to perform properly the duties of the position applied for." Section 97B.45, The Code, 1973, as amended by chapter 149, section 7, chapter 150, section 1 and chapter 151, section 1, 1973 Session of the Sixty-fifth General Assembly, provided in part as follows: "A member's normal retirement date shall be the first of the month coinciding 95 with or next following his sixty-fifth birthday. A member may retire after his sixty-fifth birthday except as otherwise provided in section ninety-seven B point forty-six (97B.46) * * . "Notwithstanding the provisions of this section and section ninety-seven B point forty-six (97B.46) of the Code, an employer may adopt policies which prescribe retirement at an age not less than sixty-five years." III. The Commission maintains in its second assignment the trial court's conclusion plaintiff may not be compulsorily retired by the Commission which is based on its determination that Code section 70.2 is a special statute whereas section 97B.45 is a general statute is erroneous for one of the following reasons: (1) chapter 97B, The Code, is a special statute and thus prevails over the provisions of a general statute or (2) if it is determined both chapter 70 and chapter 97B are general the latter statute, as the latest legislative enactment, is controlling. The Commission in support of its position points out that this court has held chapter 70, The Code, is a general statute. Peters, on the other hand, insists the issue is whether section 70.2 was impliedly repealed by sections 97B.45 and 97B.46 as amended. The contentions of both parties proceed from the assumption there is a conflict between the statutes involved herein. That assumption is based upon a determination that retirement under the provisions of sections 97B.45 and 97B.46 is the equivalent of a section 70.6 "removal." At least one court has refused to equate the two terms. In Geary v. Phillips, 53 Misc.2d 337, 278 N.Y.S.2d 506, 509, the court said: "The thrust of plaintiffs' argument appears to be that Section 4 of the challenged Local Law purports to provide for the removal of police officers of the Village in contravention of the Laws or Statutes of New York of general application which prevent such removals except for incompetency or misconduct, that is to say, that Local Law No. 3 in effect `removes' plaintiffs from their Civil Service positions without a disciplinary hearing or trial, in violation of Section 891, of the Unconsolidated Laws. We are unable to agree with plaintiffs' contention. The language of Section 4 of Local Law No. 3 speaks unequivocally of termination of employment at age 62, and not of `removal' from the office. The whole act is concerned with retirement for age of police officers from service, at a certain age determined by the Board of Trustees in the public interest of the Village, and not with their removal for incompetency or misconduct. `Retirement' does not constitute `removal' within the meaning of Section 891 of the Unconsolidated Laws * * [citing authority]." (Emphasis in original). See also Coopersmith v. City and County of Denver, 156 Colo. 469, 399 P.2d 943, 948; Gardner v. Nation, 522 P.2d 1281, 1283 (Wyo.1974); and authorities cited in these opinions. It is at least questionable whether there is in fact a statutory conflict in the instant case. However, that issue need not be resolved here. In either event the trial court's conclusion was erroneous as a matter of law under the following analysis. The Commission maintains chapter 70 is a general statute, relying heavily upon this court's opinion in Andreano v. Gunter, 252 Iowa 1330, 110 N.W.2d 649. Under well-settled principles of statutory construction sections 97B.45 and 97B.46 are therefore controlling herein no matter what statutory classification they are assigned. If they are determined to be special statutes they clearly prevail under the principle that special statutes override conflicting general statutes. Llewellyn v. Iowa State Commerce Commission, 200 N.W.2d 881, 884 (Iowa 1972); Chicago, R. I. & P. R. Co. v. Iowa State Highway Com'n., 182 N.W.2d 160, 162 (Iowa 1970); Andreano v. Gunter, 252 Iowa at 1335, 110 N.W.2d at 651. If sections 97B.45 and 97B.46 are classified as general statutes they are likewise controlling in that they would be the most recently enacted of the conflicting statutes. Llewellyn, 200 N.W.2d at 884, and authorities cited therein. 96 Peters contends section 70.2 is a special statute in that it only applies to public employees preferred thereunder. On the other hand, sections 97B.45 and 97B.46 relate to all public employees and are therefore general statutes. Thus, it is argued section 70.2 prevails herein. Andreano v. Gunter, supra, involved the conflicting removal provisions of sections 70.6 and 365.19, The Code, 1958. Following a historical survey of the two statutes the court said: "We must start with the holding that chapter 70 is a general statute governing all appointments and removals to and from positions in the public service in Iowa; and chapter 365 is a special statute relating only to civil service appointments and removals in cities. * * It is * * * well settled law that when a general and a special statute are in conflict and cannot be reconciled the special one prevails. * * * [citing authority]. "Nor do we think it can fairly be held that there is no conflict between sections 70.6 and 365.19. * * * The first statute says no one may be removed without notice and hearing; the second, special and later enacted, says anyone under civil service may be summarily discharged. Many persons under civil service will also have rights under the soldiers' preference law, as has the plaintiff here. This must have been understood by the legislature when it enacted and amended the present section 365.19; yet, although it would have been easy to say that section 365.19 did not apply to those qualified under the soldiers' preference law, it did not do so. * * * We are concerned with the intent of the legislature; but in determining such intent, we apply certain rules and one of these, well defined and often applied, is that a special statute takes precedence if the two cannot be reconciled. The only way in which these two statutes under consideration could be reconciled is by ignoring the plain language of the special one, section 365.19, and reading into it an exception which the legislature did not see fit to place there." 252 Iowa at 1335-1336, 110 N.W.2d at 651-652. See also Richards v. Board of Control of State Institutions, 170 N.W.2d 243, 245 (Iowa 1969), where this court recognized again that "Chapter 70, Soldiers Preference Law, is a general statute governing all appointments to and removals from positions in the public service in Iowa." The Andreano analysis is dispositive of this appeal. Chapter 70 governs all appointments to and removals from public employment and is therefore a general statute. Sections 97B.45 and 97B.46 apply only to public employees covered by the Iowa Public Employees' Retirement System but no matter what type of statutes they are deemed to be they are controlling herein. In Llewellyn, 200 N.W.2d at 884, this court said: "* * * When a general statute is in conflict with a specific statute, the latter generally prevails whether enacted before or after the general statute. * * * [citing authority]. And, in case of irreconcilable conflict between two statutes, the later one controls. * * * [citing authorities]." The trial court's conclusion herein was erroneous as a matter of law. The Commission's actions in compulsorily retiring Peters pursuant to the provisions of sections 97B.45 and 97B.46 were not illegal within the meaning of rule 306, Rules of Civil Procedure. This is not a dismissal based upon misconduct, incompetency or political affiliation, but retirement based upon age limitation. In view of our determination of the issue considered in this division we deem it unnecessary to reach the questions presented by the Commission's third and fourth assignments. In this connection we point out that in reaching our conclusion we have considered each of the contentions urged by Peters in support of the trial court's ruling and find none with merit. The action of the trial court in sustaining the writ of certiorari issued in this matter and in issuing the order granting the injunction was erroneous. *97 The case is therefore Reversed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619204/	615 So.2d 199 (1993) DEPARTMENT OF CORRECTIONS, Appellant, v. W. Gerry HARGROVE, Jr., Appellee. No. 92-725. District Court of Appeal of Florida, First District. March 2, 1993. Rehearing Denied April 1, 1993. 200 Robert A. Butterworth, Atty. Gen., Claire D. Dryfuss, Asst. Atty. Gen., Tallahassee, for appellant. Appellee, pro se. WOLF, Judge. The Department of Corrections (DOC) appeals from a determination by a hearing officer of the Division of Administrative Hearings that proposed rule 33-5.006(8)(c), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. The hearing officer determined that the restrictions on prison visitation promulgated within the proposed rule were unnecessary to protect the security, order, or rehabilitative objectives of the prison system, and was thus arbitrary and capricious. The DOC raises three issues on appeal: (1) Whether the hearing officer erred by failing to dismiss the administrative petition for lack of jurisdiction, (2) whether the hearing officer erred in finding the agency had exceeded its grant of rulemaking authority, and (3) whether the hearing officer erred in finding that the inmate had standing to bring the rule challenge. We determine that the hearing officer did not err in his determinations concerning jurisdiction or standing, and affirm as to those issues without further discussion. See Department of Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984). We do find, however, that the proposed rule is within the broad grant of authority given to DOC to regulate relations between prisoners and the outside world, and therefore reverse as to issue II. DOC proposed an amendment to rule 33.056(8) which provided in pertinent part as follows: (c) Married or unmarried inmates may have non-immediate family member couples on the visiting list after approval but the member of the couple who is the opposite sex of the inmate may not visit the inmate without the spouse. Appellee, who had several married female visitors on his visitors' list, filed a challenge to the proposed rule, pursuant to section 120.54, Florida Statutes. Appellee alleged that the proposed rule violated section 120.52(8)(a) and (b), which states that a proposed rule constitutes an invalid exercise of delegated legislative authority where "(a) the agency has failed to follow the applicable rulemaking procedures set forth in s. 120.54, or (b) the agency has exceeded the grant of rulemaking authority, citation to which is required by s. 120.54(7)."[1] The pertinent statutory authority cited by DOC includes section 944.09, Florida Statutes, and section 944.23, Florida Statutes. Among other things, section 944.09, Florida Statutes, requires that rules be adopted by DOC, governing visiting hours and privileges and all other aspects of the operation of the prison system in Florida. Section 944.23, Florida Statutes, provides in pertinent part as follows: 944.23 Persons authorized to visit state prisons. The following persons shall be authorized to visit at their pleasure all state correctional institutions: The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person not otherwise authorized by law shall be permitted to enter a state correctional institution except under such regulations as the department may prescribe. Permission shall not be unreasonably withheld from those who give sufficient evidence to the department that they are bona fide reporters or writers. During the hearing on the rule challenge, DOC presented testimony concerning the security risk involved in allowing married 201 visitors of the opposite sex to visit without their spouses. These security concerns included the following: a. One spouse (i.e., the wife) may be visiting an inmate without the knowledge of the other spouse (i.e., the husband). If the husband becomes aware of the fact that his wife is visiting an inmate the husband may become alarmed and complain to the Respondent and his wife about the visitation. b. When the husband complains to his spouse or the Respondent and the inmate learns of the problem, the inmate may become upset. DOC indicated that there have been a few instances where inmates who, upon learning that husband of the inmate's visitor has been making it difficult for the visiting spouse to continue with visitation, have attempted to escape to get to the husband. The representative of DOC further testified that it was determined, based on questioning of recaptured inmates, that such reasons were the cause of at least five to ten escape attempts in the last 30 years. At the conclusion of the hearing, the hearing officer found that the rule was arbitrary and capricious as well as being beyond the scope of delegated legislative authority.[2] A challenge to agency rules based on the fact that an agency has exceeded the grant of rulemaking authority from the Legislature will not be sustained as long as the rules are reasonably related to the purpose of the enabling legislation. General Tel. Co. of Florida v. Florida Public Serv. Comm'n, 446 So.2d 1063 (Fla. 1984); Florida League of Cities v. Department of Environmental Regulation, 603 So.2d 1363 (Fla. 1st DCA 1992). In addition, an agency is given broad discretion in the exercise of its lawful authority, and the burden is on the petitioner to demonstrate that a rule is arbitrary and capricious. Cataract Surgery Center v. Health Care Cost Containment Bd., 581 So.2d 1359 (Fla. 1st DCA 1991); Department of Professional Regulation, Bd. of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984). The Legislature by statute has granted broad discretion to DOC to regulate the activities of prisoners. In section 944.23, this broad power was specifically extended over the visitation rights of prisoners. This court has on several occasions recognized the great deference to be given to prison officials to regulate the relations between prisoners and the outside world. Lambrix v. Dugger, 610 So.2d 1366 (Fla. 1st DCA 1992); State v. Olson, 586 So.2d 1239 (Fla. 1st DCA 1991). This deference is at least in part based upon the significant security concerns facing prison officials. Clearly, the proposed rule is within the grant of legislative authority and is reasonably related to the purpose of the enabling legislation. It is also inappropriate for this court or the hearing officer to second-guess DOC on the extent of the security risk involved. We, therefore, find that the rule proposed by DOC is legislatively authorized, and is not arbitrary or capricious. The decision of the hearing officer is reversed. WIGGINTON and MINER, JJ., concur. NOTES [1] The hearing officer found no violation of the rulemaking procedures. It is unnecessary for us to discuss this issue any further. [2] DOC contends that the issue of arbitrariness was not properly presented to the hearing officer. We need not reach this issue as we find the rule to be neither beyond the scope of delegated legislative authority nor arbitrary or capricious.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618930/	792 S.W.2d 106 (1990) Ralph Antonio COURET, Appellant, v. The STATE of Texas, Appellee. No. 987-89. Court of Criminal Appeals of Texas, En Banc. June 27, 1990. John H. Hagler, on appeal only, Dallas, for appellant. John Vance, Dist. Atty., and Teresa Tolle, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for State. Before the court en banc. OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW PER CURIAM. A jury convicted appellant of burglary of a building. After finding that appellant had once before been convicted of a felony, 107 the jury assessed punishment at confinement for forty (40) years. The Court of Appeals affirmed the conviction. State v. Couret, No. 05-88-00668-CR (Tex.App. Dallas, delivered April 19, 1989). We granted appellant's petition for discretionary review to examine the Court of Appeals' determination that admission of a hypodermic needle found in appellant's possession at the time of his arrest was proper. We borrow liberally from the Court of Appeals' rendition of the facts. On December 27, 1987, at 6:00 a.m., two Dallas police officers responded to a silent burglar alarm call at a warehouse. The officers found that a back door of the warehouse had been pried open. When backup officers arrived, the police entered the warehouse. Appellant was found hiding behind a pile of wood. The officers arrested him and searched him. The officers found a hypodermic needle in appellant's pocket. Later, they also found a crowbar and a screwdriver inside the building, which the warehouse manager testified were not property of the warehouse. A soft drink machine inside the warehouse was damaged. During trial appellant objected to testimony regarding the hypodermic needle as "going into any kind of extraneous things." The State responded that this information was "res gestae of this arrest.... It's an offense contemporaneous with this arrest." The trial court overruled the objection. The Court of Appeals relied upon Maddox v. State, 682 S.W.2d 563 (Tex.Cr.App. 1985), and upheld the admission of the testimony as showing the context of the criminal offense because the arrest was contemporaneous with the commission of the offense. The general rule is that an accused is entitled to be tried for the offense for which he is charged and not for some collateral crime or for being a criminal generally. Maynard v. State, 685 S.W.2d 60 (Tex.Cr.App.1985), and cases cited therein. Exceptions to this rule allow extraneous matters to be admitted if the extraneous matter is relevant to a material issue and the relevancy value outweighs the prejudicial potential. See Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App.1985), Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983), and Albrecht v. State, 486 S.W.2d 97 (Tex. Cr.App.1972). A related rule that has often been stated by this Court is that the State is entitled to show the circumstances surrounding an arrest. Maddox, supra; Hernandez v. State, 484 S.W.2d 754 (Tex. Cr.App.1972). However, this rule is restricted by the same test as any extraneous matter, that is, the evidence must be relevant to a material issue in the case and the probative value must outweigh the prejudicial value. Therefore, to simply state that something is admissible merely because it is a circumstance of the arrest is too broad a statement. In Hernandez, this Court stated the rule and added an illustrative footnote, noting that because the defendant in Hernandez was charged and convicted of unlawful possession of a narcotic drug, the recovery of a stolen television during the search and arrest of the defendant at the time of the commission of the offense was inadmissible since it did not relate to proving that the defendant possessed heroin. Hernandez, 484 S.W.2d at 755, n. 2. Similarly, in Powell v. State, 478 S.W.2d 95 (Tex.Cr.App.1972) a defendant was arrested for theft, committed the day before the arrest. After stating the general rule barring the admission of extraneous offenses, but noting the exception for "context of the offense," we held that an officer's testimony concerning the appearance of fresh needle tracks on the defendant's arm at the time of arrest was inadmissible. The State's theory that these tracks showed motive for the theft because appellant needed money to support his narcotic habit was too speculative. Cf. Riley v. State, 168 Tex.Crim. 417, 328 S.W.2d 306 (1959) in which a defendant took drugs and hypodermic needles in a burglary. In Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973), the defendant was charged and convicted of robbery by assault. The robbers had used pistols in the commission of the offense. The defendant 108 was arrested a short time after the robbery and, in addition to the pistols, a shot-gun was recovered. This Court cited and quoted from Hernandez and held that admission of the shot-gun was error because it had no connection to the robbery. See also Stanley v. State, 606 S.W.2d 918 (Tex.Cr. App.1980) and Maynard, supra. But cf. Ross v. State, 169 Tex.Crim. 313, 334 S.W.2d 174 (1960), decided before Hernandez. In Maddox, relied upon by the Court of Appeals, an undercover officer bought methamphetamine from the defendant who was sitting in his truck and who handed the contraband to a cohort to give to the officer. The defendant was immediately arrested and a rifle was seized from the floorboard of the pickup truck in which he had been seated. This Court held that the rifle was admissible because it "was shown to have been directly connected with, and contemporaneous to, and inseparable from the arrest of the appellant." This language, taken by itself, flies in the face of Hernandez and the general relevancy requirement for extraneous matters. However, although the majority in Maddox does not so state, the arguable implication from the facts and from the concurring opinion is that the rifle was admissible to show the context of the offense because during the drug transaction the defendant possessed a weapon, whether the weapon was for protection or threat or security during the offense. Where possession of a weapon is involved when an offense is committed, such fact is usually relevant as a circumstance of the offense because arguably the weapon is intended by the defendant to be used, exhibited, or simply possessed for protection or threat during the offense. To interpret the statement in Maddox literally would mean that anything recovered during an arrest would be admissible, regardless of its lack of connection to the charged offense. For example, if the defendant in Maddox possessed pornographic magazines when he was arrested, they would be admissible in a prosecution for delivery of methamphetamine. This is certainly not permissible under the law governing admission of extraneous matters. See Hernandez, 484 S.W.2d at 755, n. 2. When an arrest is made during or immediately after the commission of an offense, the "context of the offense" rationale usually permits admission of matters pertaining to the arrest, including a defendant's acts and possessions, because such matters set the stage for the events of the offense and aid the jury's comprehension of the whole criminal transaction. See Maddox, 682 S.W.2d at 566 (concurring opinion, Clinton, J.). But, those extraneous matters must still meet the extraneous offense test, which includes that they be relevant to the offense. See generally, Tx.R. Crim.Evid. art. IV. In the instant case, appellant was arrested during the commission of a burglary of a building. Extraneous matters which occurred during this arrest which were relevant to place the offense in a proper setting and to show the jury the whole transaction would certainly be admissible to show the context of the offense. But, possession of a hypodermic needle does not meet this test. There is no suggestion or indication that appellant burglarized the warehouse to obtain money or property to support a drug habit. Cf. Riley, supra, and Powell, supra. Despite the broad language in Maddox the mere fact that possession of the hypodermic needle was contemporaneous with the arrest does not permit admission. Since there is nothing to show any relevance to the context of the offense or to any other issue in the case, the evidence of appellant's possession of the hypodermic needle should not have been admitted. Having determined that evidence of appellant's possession of the hypodermic needle should not have been admitted, we reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals to decide whether such evidence was harmful to appellant. See Tex.R.App.Pro. 81(b)(2).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618952/	248 N.W.2d 363 (1976) Roger KIERSTEAD, Grievant and Appellant, v. CITY OF RAPID CITY, Employer and Respondent. No. 11704. Supreme Court of South Dakota. December 22, 1976. Robert L. O'Connor, Sioux Falls, Harry H. Smith, Smith & Smith, Sioux City, Iowa, for grievant and appellant. W. A. McCullen, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for employer and respondent. RIES, Circuit Judge. Grievant-appellant Roger Kierstead filed a grievance with the South Dakota Department 364 of Manpower Affairs, Division of Labor and Management Relations, alleging that he had been fired from his position as patrolman for the City of Rapid City, South Dakota, because he had completed an application for leave without pay incorrectly and requesting in the application that he wanted "to be reinstatedrecords put back in orderback paysalary for July and months until I am reinstated." While language used in the statement of grievance concerned itself only with reinstatement and back pay, at the hearing before the Deputy Director, the grievant testified that when he was hired by the acting Chief of Police for the city in September of 1973, the Chief promised him a monthly wage of $575, which was $50 more per month than the rate paid "rookie" patrolmen, because grievant had had prior experience in law enforcement. At the hearing before the Deputy Director, in addition to the request for reinstatement, grievant requested that he be paid the additional $50 per month that had been promised him at the time of hiring but which he had never received. A hearing on the grievance was held before the Deputy Director of the Division of Labor and Management Relations and the Director made findings of fact and conclusions of law and an order requiring that the grievant be immediately reinstated as a patrolman, that he not be denied any advancement in pay, position or other benefits he might have attained had he been in continuous service to the date of reinstatement, that he be paid all back pay from the date of his termination to the day before his reinstatement mitigated by any salary that he may have earned during said period, and ordering that grievant be paid the sum of $50 per month promised to him by the acting Chief of Police at the time he was employed. A petition for review of the decision of the Deputy Director was thereupon made to the Director by respondent City of Rapid City for the reason that there had been an oversight as to legal requirements in force during all of the time of Kierstead's employment and that if properly applied the decision would be reversed. The Director of the Division of Labor and Management Relations reviewed the record and affirmed the decision of the Deputy Director. Thereafter notice of appeal and notice of petition for review was filed in circuit court by the city. The petition for review requested a review of the decision of the Deputy Director for the reasons that the decision was not supported by the law for municipal corporations nor was it consistent with the rules and regulations of the city in vogue at the time of the alleged incident. The appeal was held before the Seventh Judicial Circuit Court with that court reversing and setting aside the order of the Division of Labor and Management Relations for the reasons: (1) that the decision of the Director was unsupported by substantial evidence; (2) that the decision was based upon actions of the grievant who did not follow established and lawful procedure in taking leave of absence without first securing permission and that therefore his discharge was justified, and (3) that the decision was based upon actions of the grievant which did not conform to established and lawful procedures with respect to prosecution of grievances and therefore the Division of Labor and Management Relations had no jurisdiction to hear and determine the matter. Appeal by grievant was thereupon made to this court from the order of the circuit court reversing the decision of the Director. A summary of the factual background as well as the applicable statutory law is necessary for an understanding of this matter. Rapid City is a municipality governed by a mayor and common council and has no civil service system. Grievant was hired as a patrolman for the City of Rapid City in September 1973, and continued in his employment as a patrolman until he was suspended by the Chief on July 1, 1974. The mayor of Rapid City in a letter of August 20, 1974, to the grievant affirmed the action taken by the department on July 1, 1974, for the reason that the application of grievant for leave of absence without pay did not conform to Article XIV of the Personnel 365 Manual of the city. Article XIV provided, among other things, that "[a] leave of absence may be granted upon application by the employee and approval by his immediate supervisor and the Mayor, or his designee * * ." The application was signed by the grievant and recommendation of the request was signed by grievant's immediate supervisor. The application was never signed by the mayor or his designee. Grievant's basic argument with regard to the firing is that he was fired not for taking the leave of absence without prior approval of the proper authority but because he had dated and married a police woman on the force and the Chief frowned upon fraternization within the department between male and female employees. Grievant argues additionally that he had submitted his application for leave without pay to his immediate supervisor and had been advised by his supervisor that such leaves once recommended by the supervisor were considered granted if no disapproval was forthcoming and that as there was no disapproval, in accordance with accepted procedures, he took his leave. Grievant's basic argument with regard to the $50 back pay because of his prior law enforcement experience is that when originally hired he was promised the additional $50 per month; that the police department had an unwritten policy that a starting policeman with substantial prior law enforcement experience would start at $50 per month higher than a "rookie" policeman; that other policemen with prior law enforcement experience received the extra $50 and that he was entitled to the increased rate; that when he found that he was not receiving the additional $50 he made his grievance through the proper chain of command, but that through no fault of his own his request never reached the proper party for a determination and was never acted upon by anyone with decision-making authority. The Deputy Director concluded as a matter of law that the Division of Labor and Management Relations had jurisdiction over the matter by virtue of SDCL 3-18-1.1 and 3-18-15.2, and his findings of fact favored the grievant on all the factual issues raised. The determination issue to be initially decided is whether the Director of Labor and Management Relations had the legal authority under existing law to order reinstatement and awarding of back pay. If the Director had such authority it would have to come from the provisions of SDCL 3-18. The pertinent sections of Chapter 3-18 are: SDCL 3-18-1.1. "`Grievance' defined. The word `grievance' as used in this chapter shall mean a complaint by a public employee or group of public employees based upon an alleged violation, misinterpretation, or inequitable application of any existing agreements, contracts, ordinances, policies, rules or regulations of the government of the state of South Dakota or the government of any one or more of the political subdivisions thereof, or of the public schools, or any authority, commission, or board, or any other branch of the public service, as they apply to the conditions of employment. Negotiations for, or a disagreement over, a nonexisting agreement, contract, ordinance, policy, rule, or regulation is not a `grievance' and is not subject to this section." SDCL 3-18-15.2. "If, after following the grievance procedure enacted by the governing body, the grievance remains unresolved, it may be appealed to the department of manpower affairs, which shall conduct an investigation and hearing and shall issue an order covering the points raised, which order shall be binding on the employees and the governmental agency." Grievant argues that SDCL 3-18-15.2 by implication provides ample authority for the Director to make his order of reinstatement and back pay, otherwise the Division would have hearing officers conducting hearings around the state concerning discharges and not have any jurisdiction to render decisions relating thereto. 366 Respondent argues that nowhere in SDCL 3-18 is there any grant of authority with respect to the ability of the Director to order reinstatement or award back pay, and that without such authority he had no jurisdiction to hear and determine the grievances presented. The nearest approach is SDCL 3-18-15.2, which provides for a hearing and the issuance of an order covering the points raised, which order shall be binding on the employees and the governmental agency. To have the authority claimed by the grievant and assumed by the Director would require that the Director has the authority to: (1) Repeal the force of SDCL 9-14-13: "In an aldermanic-governed city the mayor shall have power except as otherwise provided to remove from office any officer appointed by him, whenever he shall be of the opinion that the interests of the city demand such removal, but he shall report the reasons for his removal to the council at its next regular meeting." (2) Repeal the force of SDCL 9-23-1: "Before any claim against any municipality for any property or services for which it is liable shall be allowed, the person asserting the same, either by himself or agent, shall reduce the claim to writing and shall verify the same to the effect that such claim is just and true; that the money therein charged was actually paid for the purposes therein stated; that the property therein charged for was actually delivered or used for the purposes therein stated and was of the value therein charged; that the services charged for were actually rendered and of the value as charged; or, in case such services were official for which fees are prescribed by law, that the fees or amounts charged therefor are such as are allowed by law; and that no part of such claim has been paid." (3) Repeal the force of SDCL 9-24-1: "No suit shall be instituted against any municipality to enforce the collection of a claim against it unless such claim shall first have been presented to and acted upon by the governing body in the manner prescribed by § 9-23-1. In case the governing body, having had such claim before it at a regular meeting, shall fail or neglect to act upon such claim, then the owner of such claim may bring suit to enforce the collection thereof." (4) Repeal the force of SDCL 9-14-28: "Except as otherwise specially provided, the governing body of every municipality shall fix and determine by ordinance the amount of salaries and compensation of all municipal officers and the times at which the same shall be paid." The grievances raised by the grievant involve the question of removal from office of an appointed officer of the city and the question of the setting of salaries and compensation of municipal officers, both of which powers and functions are delegated by statute to the mayor and to the governing body of the municipality. SDCL 9-14-13 and 9-14-28. We believe that under SDCL 3-18-15.2 the Director has authority to act only on grievances that do not involve the exercise of an executive or legislative power of the governmental agency or the performance of a governmental function. SDCL 9-14-13 is an executive power vesting in the mayor the power of removal of any officer appointed by him. This power is absolute. State v. Williams, 1894, 6 S.D. 119, 60 N.W. 410. The grievant was effectively removed from office when the mayor affirmed the action of the police department when he was suspended by the Chief. Likewise, the setting of salaries and compensation of municipal officers by ordinance by the governing body of the municipality is a legislative function and cannot be delegated to any other body or department. Schryver v. Schirmer, 1969, 84 S.D. 352, 171 N.W.2d 634. The grievant's argument requires the interpretation that SDCL 3-18 impliedly repeals all employment sections of our municipal code herein set forth, and makes the Division of Labor and Management Relations a civil service board. This is in direct 367 conflict with the avowed purpose of the municipal code and is inconsistent with the expressions of this court with respect to repeals by implication. Security State Bank v. Breen, 65 S.D. 640, 277 N.W. 497, and State v. Christian, 85 S.D. 92, 177 N.W.2d 271. The legislature had the power, had it so desired to exercise it, of granting to the Director in SDCL 3-18 the authority to order reinstatement and back pay. It is noted that in the National Labor Relations Act in 29 U.S.C.A., § 160(c), the authority claimed by the grievant is specifically set out and not left to implication. Grievant's argument that the phrases "except as otherwise provided" as stated in SDCL 9-14-13 and "[e]xcept as otherwise specially provided" as stated in SDCL 9-14-28 gives to the Director the implied authority to reinstate and order back pay is not persuasive. We could find no cases in point dealing with the use of the quoted phrases and similar phraseology, but we conclude that the phrases mean exactly what they say and absent such statutory authorization the Director is without jurisdiction to order reinstatement and back pay. We find no specific statutory authorization nor any implied authority. The decision of the circuit court is affirmed based on lack of jurisdiction of the Director of Labor and Management Relations to hear and determine the grievances presented. In view of our decision on the matter of jurisdiction, it is unnecessary for us to decide upon the other assignments of error presented. WOLLMAN and COLER, JJ., concur specially. DUNN, C. J., and WINANS, J., dissent. RIES, Circuit Judge, sitting for DOYLE, J., who, prior to his death, disqualified himself from taking part in the decision in this action. ZASTROW, J., not having been a member of the court at the time this case was orally argued, did not participate. COLER, Justice (concurring specially). I would affirm the order of the trial court reversing the decision of the department of labor and management relations solely on the basis of the trial court's findings on review pursuant to SDCL 1-26-36. As stated in the order of the trial court, in the nature of a finding, "(1) The decision of the Director of Labor and Management Relations is unsupported by substantial evidence on the whole of the record; (2) The decision of the Director of Labor and Management Relations was based upon actions of the grievant which did not follow established and lawful procedure in taking leave of absence without first securing permission and therefore his discharge was justified; (3) The decision of the Director of Labor and Management Relations was based upon actions of the grievant which did not conform to established and lawful procedures with respect to prosecution of grievances and therefore the Division of Labor and Management Relations has no jurisdiction to hear and determine the matter." I am satisfied that the trial court properly applied the standard of review set forth in subdivision (5) of SDCL 1-26-36 as construed by this court in Application of Ed Phillips & Sons Co., 1972, 86 S.D. 326, 195 N.W.2d 400, on the matter of appellants having taken leave without authorization. Contrary to the department's finding, the record is devoid of evidence that applications for leave without pay were not regularly submitted and necessarily formally approved by the appropriate authority as contrasted to the prevailing practice concerning taking of leave with pay, for a few days time, which was merely approved by the immediate superintending authority. As to the authority for the commissioner to award back pay based upon a claim of oral contract, it would appear that for several months and up until the time of his discharge the appellant accepted warrants 368 of the city. The department's conclusion of law numbered 3, to wit: "That when the grievant found that he was not receiving the proper wage he made his grievance through the proper `chain of command,'" is totally unsupported by the record. I do not agree that SDCL 3-18-1.1 or 3-18-15.2 are patently offensive to § 26 of Art. III of the South Dakota Constitution or that those statutes, properly applied, are contrary to SDCL 9-14-13, 9-23-1, 9-24-1 or 9-14-28. If we are to determine these issues, it should only be done when the issues are raised in the initial stages of the proceedings, which was not done here. The respondent city recognized the applicability of SDCL 3-18-1.1 and 3-18-15.1 to 3-18-15.4 by enacting on June 18, 1973, Article XVIII of their personnel manual entitled "Grievances" as required by SDCL 3-18-15.1. By adopting its own grievance procedure the city avoided the procedure that otherwise would be imposed upon it by the department. SDCL 3-18-15.3. Section 18.01 of the city's rules states: "GRIEVANCES: 18.01 Right of Employees. Employees shall have the right to present grievances, individually, as a group, or through their designated representatives. In so doing, employees shall be assured of freedom from restrain [sic], interference, discrimination and reprisal. Such grievances shall be presently only through the established lines of authority. Section 3-18-1.2 [sic] & 3-18-15.2 SDCL as amended." The remaining provisions of Article XVIII set forth procedures to be followed in presenting grievances, which were not complied with by appellant. The trial court properly found that the appellant herein did not exhaust his administrative remedies by adhering to the grievance procedures adopted by the city under the mandate of the law and that, therefore, the department of labor and management relations was without jurisdiction. We need not go beyond the statutes and the personnel rules of the city to resolve this case, and I would affirm the trial court on the basis of its holding. I am authorized to state that Justice WOLLMAN joins in this special concurrence. DUNN, Chief Justice (dissenting). I would reverse. I do not believe that our legislature by enacting SDCL 3-18-15.2 intended to repeal the power of a mayor to remove officials appointed by him, SDCL 9-14-13, or to repeal the power of a municipal governing body to set salaries and compensation for its officers, SDCL 9-14-28, or to allow the Department of Manpower Affairs to "perform any municipal functions whatever," § 26, Article III, South Dakota Constitution. By Ch. 27, S.L.1970, "An Act relating to SDCL 3-18 and providing for grievance procedures and their enactment by the political subdivisions of, and the state of, South Dakota," the legislature defined "grievance" as it was to be used in SDCL 3-18 as, among other things, "a complaint by a public employee * * based upon an alleged violation, misinterpretation, or inequitable application of any existing agreements, contracts, ordinances, policies, rules or regulations of * * * the government of any one or more of the political subdivisions [of the state of South Dakota] * * * as they apply to the conditions of employment. * * " Section 1, Ch. 27, S.L.1970 (SDCL 3-18-1.1). (emphasis supplied) SDCL 3-18-15.2, which was a part of § 1, Ch. 27, S.L.1970, read at the time this grievance arose as follows: "If, after following the grievance procedure enacted by the governing body, the grievance remains unresolved, it may be appealed to the department of manpower affairs, which shall conduct an investigation and hearing and shall issue an order covering the points raised, which order shall be binding on the employees and the governmental agency." (emphasis supplied) By enacting these laws, the legislature provided a procedure through which public employees could complain for wrongful or inequitable treatment by the state or local 369 governments. To make governmental action terminating a grievant's employment immune from such procedure would be both unconscionable and contrary to the clear legislative intent behind these provisions. Similarly, to hold that a determination upon an oral salary agreement cannot be made by the department because municipal governing bodies are solely empowered to set salaries and compensation would be contrary to the express terms of SDCL 3-18-1.1 and 3-18-15.2. This court has held that the legislature can "delegate quasi-legislative power or functions to executive or administrative officers or agencies, provided it adopts understandable standards to guide its delegate in the exercise of such powers." Boe v. Foss, 1956, 76 S.D. 295, 313, 77 N.W.2d 1, 11. I feel sufficient standards to guide the investigation and hearing are provided by SDCL 3-18-1.1 in that before a determination in favor of the grievant can be made and an order issued "covering the points raised" a "violation, misinterpretation, or inequitable application of any existing agreements, contracts, ordinances, policies, rules or regulations" of the governing body must be found. Furthermore, I believe the determination here by the department that the "grievant * * * was hired * * * at a starting wage of $575.00 per month" and that "the written personnel policy * * * was either ignored or misinterpretated (sic)" was supported by substantial evidence. SDCL 1-26-36(5); Valley State Bank of Canton v. Farmers State Bank of Canton, 1973, 87 S.D. 614, 213 N.W.2d 459; McKinnon v. State Banking Comm., 1960, 78 S.D. 407, 103 N.W.2d 179. I am authorized to state that Justice WINANS joins in this dissent.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618965/	915 F.Supp. 776 (1996) Karl DAVID and John David, Plaintiffs, v. Kenneth G. MOSLEY, in his personal capacity and Taylor V. Blanton, in his personal capacity, Defendants. Civil Action No. 3:95cv346. United States District Court, E.D. Virginia, Richmond Division. February 16, 1996. 777 778 Richard E. Gardiner, Fairfax, Virginia, for plaintiffs. Robert W. Jaspen, Assistant U.S. Attorney, Richmond, Virginia, for Mosley. Francis W. Pedrotty, III, Grace M. Diliberto, Office of the Attorney General, Richmond, Virginia, for Blanton. MEMORANDUM OPINION PAYNE, District Judge. Karl David ("Karl"), a federally-licensed firearms dealer, and his son, John David ("John") initiated this action for monetary damages against Kenneth G. Mosley, Jr. ("Mosley"), a Special Agent employed by the Bureau of Alcohol Tobacco and Firearms ("BATF"), pursuant to Bivens v. Six Unknown 779 Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and against Taylor V. Blanton ("Blanton"), a Virginia State Police officer on special assignment to BATF, pursuant to 42 U.S.C. § 1983.[1] The Complaint alleges that the defendants violated the constitutional rights of Karl and John to be secure against unreasonable searches and seizures. STATEMENT OF FACTS On October 6, 1993, Karl, who was then a federally licensed firearms dealer, was indicted by a Caroline County grand jury for embezzlement, a crime punishable by a term of imprisonment for up to 20 years.[2] On March 23, 1994, as required by 18 U.S.C. § 924, Karl submitted BAFT Form 8, Renewal of Firearms License, to the BATF in an effort to renew his federal firearms license for Karl's Gun Shop in Milford, Virginia. One question on that form asked: "Are you presently under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one year?" Notwithstanding the pending state court indictment on charges of embezzlement, Karl responded in the negative. On April 19, 1994, Mosley received information that Karl was receiving guns in interstate commerce. Because Karl was under indictment for a felony, receipt of such weapons violated federal law. 18 U.S.C. § 922(n). Mosley decided to monitor Karl's actions and, in furtherance of that objective, Mosley instructed Blanton to have the United Parcel Service ("UPS") notify Mosley or Blanton when UPS received any packages for Karl's Gun Shop. On April 21, 1994, Robert Martinson, the UPS Loss Prevention Supervisor in Richmond, informed Blanton that UPS in Fredericksburg had received two packages destined for Karl's Gun Shop, one from a gun shop in Norfolk and another from a gun collector in North Carolina. Kenneth Tickle, manager of the Fredericksburg UPS office, decided to open the package from the Norfolk gun shop[3] and discovered a Smith and Wesson .38 caliber pistol. On April 24, 1994, Blanton went to the Fredericksburg UPS office to x-ray the package from North Carolina, but found that it had already been delivered to Karl's Gun Shop. On April 26, 1994, Martinson reported to Mosley and Blanton that UPS had received two more packages for Karl's Gun Shop, one from a firearms dealer in Ohio and one from a firearms dealer in Iowa. Mosley and Blanton determined in a telephone conversation with the Ohio shop that the Ohio package contained a Russian Makarov 9 × 18 caliber pistol. From the Iowa firearms dealer, they learned that the Iowa package contained gunsmithing supplies and equipment. Also, on April 26, 1994, Mosley obtained permission to make a "controlled delivery" to Karl's Gun Shop while posing as a UPS delivery driver. An Assistant United States Attorney, George Metcalf ("Metcalf"), authorized the use of electronic surveillance during the "controlled delivery." Mosley and Martinson then delivered the packages to Karl while Blanton monitored the communications from a remote location. Karl acknowledged receipt of the packages by signing a UPS form. After Mosley informed Metcalf that the packages had been delivered, Metcalf presented the foregoing facts, including the receipt of the Makarov pistol, to a grand jury, which charged Karl with making a false statement in a firearms license renewal application in violation of 18 U.S.C. § 924(a)(1)(A), and for receipt of firearms in violation of 18 U.S.C. § 922(n). The indictment was returned on May 4, 1994. 780 Also, on May 4, 1994, Mosley applied for a search warrant on the basis that, in violation of 18 U.S.C. § 922(n), Karl was receiving guns while under indictment for a felony. Based upon Mosley's affidavit, United States Magistrate Judge David G. Lowe issued a warrant authorizing the search of Karl's Gun Shop. The warrant authorized seizure of documents, including firearms licenses, applications for licenses, firearms acquisition and disposition records, and other records denoting "the purchase, receipt, ordering, and shipment of firearms since October 6, 1993, and all firearms received and purchased since October 6, 1993." On May 5, 1994, Mosley and Blanton, along with three other officers, executed the search warrant at Karl's Gun Shop. According to Blanton and Mosley, they attempted to seize only firearms purchased after the date of the state court indictment (October 6, 1993) or firearms which were not listed in the Acquisition and Disposition ("A & D") Book maintained at Karl's Gun Shop. However, notwithstanding a four to six hour review of Karl's records, Blanton and Mosley were unable to match all the guns with A & D listings. According to Blanton and Mosley, Karl told them to "just take the guns." Mosley Aff. ¶ 7; Blanton Aff. ¶ 32. Karl, however, denies that he gave the officers permission to take the unidentified guns and, in fact, asserts that he told Blanton and Mosley that certain of the guns were purchased well before October 6, 1993. Karl David Aff. ¶ 8; John David Aff. ¶ 16. Out of approximately 50 guns on the premises of Karl's Gun Shop on May 5, 1995, 26 were seized. During the search, Mosley located documentary proof that Karl had acquired 11 of the 26 seized weapons after the October 6, 1993 state indictment. In addition, because of the April 26, 1994 "controlled delivery," Mosley already was aware that Karl had acquired a twelfth weapon, the Russian Makarov, from Ohio for which no acquisition documents were located in the A & D records. Review of the A & D records during the search failed to disclose documents reflecting the acquisition date of 14 other weapons. The failure of Karl's A & D records to disclose the information required by law for those "14 other weapons" even after a lengthy review of the records was, in Mosley's view, justification to seize the undocumented weapons pending further review of the records. Mosley also thought that Karl had consented to the removal of the weapons for that purpose. Subsequent review of the seized A & D records disclosed that 8 of these "14 other weapons" were, in fact, acquired by Karl after October 6, 1993. That review also disclosed that one of the "14 other weapons" had been purchased before October 6, 1993; and, because it was outside the scope of the warrant, it was returned to Karl. The subsequent examination of the A & D records failed to confirm an acquisition date for 5 of the "14 other weapons."[4] PROCEDURAL HISTORY On May 5, 1994, Karl was arrested and charged with the crimes set forth in the May 4, 1994 indictment. Subsequently, a gun shop in Ohio notified Metcalf that, on several occasions between November 2, 1993 and April 22, 1994, it had received orders for firearms from Karl's Gun Shop. Consequently, six additional counts were added in a superseding indictment which was returned on June 20, 1994. The superseding indictment, like the original indictment, charged Karl with making a false statement in a firearms renewal application in violation of 18 U.S.C. § 924(a)(1)(A) and with receiving on four occasions a firearm shipped in interstate commerce by a person under indictment for a crime punishable by a term of imprisonment exceeding one year in violation of 18 U.S.C. § 922(n). In addition, Karl was charged with making a false statement to the United States in violation of 18 U.S.C. § 1001. On July 8, 1994, the court, on the motion of the United States, dismissed the four counts of receiving a firearm while under indictment. On July 27, 1994, the court dismissed, 781 also at the instance of the United States, the count alleging that Karl falsely represented that he was not under indictment when he applied for renewal of his federal firearm dealer's license. On July 29, 1994, Karl was tried and convicted of the remaining count, the making of a false statement to the United States in violation of 18 U.S.C. § 1001. On May 4, 1995, Karl and John filed this seven count civil action alleging violation of their constitutional right to be secure against unreasonable searches and seizures. Apparently, John's only interest is that he resided in Karl's home which also housed Karl's Gun Shop at the time of the search. Count I alleges that the search was based upon a warrant which had been issued without probable cause. The theory of Count I is that there was no probable cause to apply for, or support issuance of, a search warrant because 18 U.S.C. § 925(b) provides an exception to § 922(n) for licensed firearms dealers, such as Karl, to continue operation under an existing license if a timely renewal application is made, even if the application contains false information. This theory is also the linchpin of Counts II and IV. Thus, Count II asserts that the seizure of the 26 firearms from the Davids' home was in violation of the Fourth Amendment because the warrant had been issued without probable cause for the reasons stated in Count I. And, Count IV asserts that all documents seized incident to the search were taken in violation of Karl's Fourth Amendment rights because the warrant had been issued without probable cause for the reasons set forth in Counts I and II. Counts III and V focus on acts allegedly exceeding the scope of the warrant. Count III claims that 6 of the 26 seized firearms had been received before October 6, 1993, and were thus outside the scope of the seizure authorized by the warrant.[5] Count V asserts that documents were seized relating to firearms transactions occurring before October 6, 1993, putting them outside the scope of the warrant.[6] Count VII asserts that Blanton violated Karl's Fourth Amendment rights by directing, under color of law, a UPS employee to open packages addressed to Karl's Gun Shop without legal authority to do so. Mosley asserts that, as to Counts I, II, and IV, he enjoys qualified immunity and therefore is entitled to judgment on the pleadings under Fed.R.Civ.P. 12(c). Mosley's motion for judgment on the pleadings relies, in part, on matters beyond the pleadings and hence must be considered as seeking summary judgment under Fed.R.Civ.P. 56. Mosley also seeks summary judgment on Counts III and V on the merits and because of qualified immunity. Blanton seeks summary judgment on the theory that he is entitled to qualified immunity for Counts I, II, III, IV, and V. Presumably pursuant to Fed.R.Civ.P. 12(b)(6), Blanton seeks dismissal of Count VII for failure to state a cognizable claim because the opening of a package by a UPS employee does not state a cause of action under § 1983, which requires state action. Because Blanton's motion respecting Count VII relies in part on matters beyond the pleadings, it too must be considered as seeking summary judgment under Fed.R.Civ.P. 56. DISCUSSION Although the motions of Mosley and Blanton overlap substantially, they are sufficiently different to warrant separate consideration. For the reasons which follow, the motions for summary judgment are granted. STANDARD FOR SUMMARY JUDGMENT Summary judgment is to be rendered "if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the 782 moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The rules further provide: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed.R.Civ.P. 56(e). It is the responsibility of the party seeking summary judgment to inform the court of the basis for its motion, and to identify the parts of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F.2d 211, 216 (4th Cir.1987). "[W]here the non-moving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories and admissions on file."' Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The moving party may also use affidavits to support its motion. In response, the nonmoving party must go beyond the pleadings and, by citing its own affidavits or by citing "`depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. Opposition to a properly documented summary judgment motion may not be based solely on the pleadings. Id. The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis added). It is the function of the district court not to weigh the evidence, but to determine whether there is a genuine issue for trial, and "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 249, 106 S.Ct. at 2511 (citations omitted). Hence, summary judgment is appropriate if the evidence is "merely colorable" or "not significantly probative." Id. at 249-50, 106 S.Ct. at 2511 (citations omitted). The standard for summary judgment mirrors the standard for directed verdict (now judgment as a matter of law) under Rule 50(a), Fed.R.Civ.P., the principal difference being procedural. Id. at 251, 106 S.Ct. at 2511-12. And, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted). The non-moving party, however, "need only present evidence from which a jury might return a verdict in his favor. If he does so, there is a genuine issue of fact that requires a trial." Anderson, 477 U.S. at 257, 106 S.Ct. at 2514. The district court also "must view the evidence presented through the prism of the substantive evidentiary burden." Id. at 254, 106 S.Ct. at 2513. Furthermore, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. at 2513. Summary judgment is appropriate only if, upon consideration of the record as a whole, a reasonable trier of fact could not find for the non-movant. Allstate Fin. Corp. v. Financorp, Inc., 934 F.2d 55, 58 (4th Cir.1991). But, where a faithful examination of the record establishes the absence of a genuine issue of material fact, it is "the affirmative obligation of the trial judge to prevent `factually unsupported claims and defenses' from proceeding to trial." Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987); see also Guinness PLC v. Ward, 955 F.2d 875, 883 (4th Cir.1992). With these principles in mind, the court will consider the motions filed by Mosley and Blanton. 783 A. Mosley's Claim Of Qualified Immunity: Counts I, II And IV Mosley seeks summary judgment on Counts I, II and IV, on the theory that he is entitled to qualified immunity. The Supreme Court of the United States has determined that law enforcement officials are entitled to a qualified immunity from personal civil liability under 42 U.S.C. § 1983 in large measure because of the complex tasks performed by such officials. Taylor v. Farmer, 13 F.3d 117, 120 (4th Cir. 1993).[7] Thus, in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court held that "government officials performing discretionary functions generally 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. Applying that principle to determine whether an official is entitled to qualified immunity in a suit alleging Fourth Amendment violations, the Supreme Court, in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), held that immunity from civil liability exists so long as the official's "actions could reasonably have been thought consistent with the rights they are alleged to have violated." Id. at 638, 107 S.Ct. at 3038. In that regard, the Court explained that: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in the light of preexisting law the unlawfulness must be apparent. Id. at 640, 107 S.Ct. at 3039. Thus, the doctrine of qualified immunity extends to law enforcement officers a margin of error "when they navigate uncharted areas at the margins of constitutional criminal law." Tarantino v. Baker, 825 F.2d 772, 774 (4th Cir.1987).[8] This is because "... there are two levels on which the immunity shield operates. First, the particular right must be clearly established in the law. Second, the manner in which the right applies to the actions of the official must also be apparent." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992), cert. denied, 506 U.S. 1080, 113 S.Ct. 1048, 122 L.Ed.2d 356 (1993). Therefore, "[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Id. The availability of qualified immunity is determined against a standard of objective reasonableness. See Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984). As the Court of Appeals for the Fourth Circuit has observed, "[t]he Supreme Court's decisions place a special emphasis on the reasonableness of an officer's actions, requiring courts to make an objective inquiry into the facts facing the officer at the time of the alleged improper act." Taylor v. Farmer, 13 F.3d at 120. Consequently, whether an official may be held personally liable for unlawful official action turns on "the `objective legal reasonableness' of the action ... assessed in light of the legal rules that were `clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. at 3038; see also Price v. Sasser, 65 F.3d 342, 345 (4th Cir.1995). And, the law "must be sufficiently clear that a reasonable officer would have known that his actions violated the law." Amato v. City of Richmond, 875 784 F.Supp. 1124, 1142 (E.D.Va.1994) (emphasis in original). Claims of qualified immunity are appropriate for resolution on summary judgment because immunity is an "entitlement not to stand trial or face other burdens of litigation." Turner v. Dammon, 848 F.2d 440, 443 (4th Cir.1988). The Supreme Court has explained the task of a district court presented with a claim of qualified immunity on a motion for summary judgment as follows: On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to `know' that the law forbade conduct not previously identified as unlawful.... If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738. Viewed, then, in the proper context, the determination of a defense of qualified immunity involves three distinct steps: (1) identification of the specific right allegedly violated; (2) determining whether at the time of the alleged violation the right was clearly established; and (3) if so, then determining whether a reasonable person in the officer's position would have known that doing what he did would violate that right. Simmons v. Poe, 47 F.3d 1370, 1385 (4th Cir.1995). In this action, the specific right allegedly violated is said to be found in an exception to 18 U.S.C. § 922(n), a general prohibition against the interstate shipment or transport of firearms by any person under indictment for a crime punishable by imprisonment for a term exceeding one year. The exception to this prohibition is found in 18 U.S.C. § 925(b) which provides that: [a] licensed ... dealer ... who is indicted for a crime punishable by imprisonment for a term exceeding one year, may ... continue operation pursuant to his existing license (if prior to the expiration of the term of the existing license timely application is made for a new license) during the term of such indictment and until any conviction pursuant to the indictment becomes final. 18 U.S.C. § 925(b) (emphasis added). The plaintiffs assert that the clear language of the exception merely required that Karl file a renewal application (which he did) without regard to whether the questions in the application were completed truthfully (which they were not). Mosley argues that, accorded a common sense construction, the statute can only be interpreted to permit an exception if a truthful application is filed. It is a fundamental rule of construction that statutes must be construed to avoid absurd results if that is at all possible. See e.g., Salomon Forex, Inc. v. Tauber, 8 F.3d 966, 975 (4th Cir.1993), cert denied, ___ U.S. ___, 114 S.Ct. 1540, 128 L.Ed.2d 192 (1994); Brown v. Virginia Dept. of Corrections, 886 F.Supp. 531, 535 (E.D.Va.1995). To this end, statutes applying to the same general conduct are to be read in paria matria. United States v. Morison, 844 F.2d 1057, 1064 (4th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 259, 102 L.Ed.2d 247 (1988). Section 922(n) is a clear statutory command prohibiting all persons under indictment for crimes carrying more than a year's imprisonment from shipping or transporting firearms in interstate commerce. Thus, the reach of Section 922(n) is quite extensive. Its broad purpose is to proscribe commerce in guns by those facing serious criminal punishment and its reach is correspondingly broad in an effort to protect the public. Excepted from this expansive proscription are licensed firearms dealers, persons who earn their living in whole or in part from commerce in firearms, if they have timely applied for a renewal of their license. In a related section of the statute, 18 U.S.C. § 926, the Secretary of the Treasury is authorized to "prescribe such rules and regulations as he deems reasonably necessary 785 to carry out the provisions of this chapter." In the exercise of this authority, the Secretary promulgated regulations which require an indicted firearms dealer to state in the renewal application that he is "under indictment for a crime punishable by imprisonment for a term exceeding one year." The regulation reads: Provided, That if the term of the license expires during the period between the date of the indictment and the date the conviction thereunder becomes final, such ... dealer ... must file a timely application for the renewal of his license in order to continue operations. Such application shall show that the applicant is under indictment for a crime punishable by imprisonment for a term exceeding 1 year. 27 C.F.R. § 178.143 (emphasis added). Although Section 925(b) itself does not explicitly condition qualification for the exemption upon the filing of a truthful application, it is within the authority conferred on the Secretary by Section 926 to issue regulations prescribing the form and the content of the application which is required by Section 925(b).[9] In addition, a logical common sense interpretation of the statute is that the dealer must somehow inform the licensing agency of the fact of the indictment and of the outcome of the proceedings. Otherwise, the licensing authority has no way of knowing that the narrow exception, rather than the broad rule, would apply. Moreover, it would produce an absurd result to construe the statute as authorizing untruthful applications. For the foregoing reasons, the court concludes that Section 925(b), and the implementing regulations, cannot be interpreted to create in a licensed firearms dealer the right to operate under an existing license by filing a renewal application not in conformance with the Secretary's regulations which require, inter alia, disclosure of the fact of indictment. This, of course, means that the putative right allegedly violated by Mosley does not exist. Ordinarily, that would end the qualified immunity analysis. Moreover, it is preferable to articulate a single basis for decisions and thus refrain from making alternative holdings. Karsten v. Kaiser Found. Health Plan of the Mid-Atlantic States, 36 F.3d 8, 11 (4th Cir.1994). However, because of observations made by the court in earlier, related proceedings, the parties have focused their arguments on the second and third prongs of the qualified immunity calculus: whether the claimed right was clearly established and whether a reasonable officer would have realized his actions would violate that right. Hence, it is best that the court consider the arguments on those points also. As explained above, a reasonable reading of Section 925(b)'s language would permit law enforcement officers to conclude that a dealer must inform the Secretary of the fact of indictment in the application. Of course, as of May 1995, there was no reported judicial interpretation of Section 925(b) and hence, a reasonable reading of the statutory language would alone be sufficient to defeat the plaintiffs' assertion of the existence of a clearly established right to continue dealing in firearms after the submission of a false renewal application. However, that was not the sole interpretive device available to a reasonably well-trained officer because the regulations were extant on May 5, 1994. As duly promulgated regulations, they are entitled to be considered by the law enforcement officer as imbued with the full force and effect of law. Chrysler Corp. v. Brown, 441 U.S. 281, 282, 99 S.Ct. 1705, 1707-08, 60 L.Ed.2d 208 (1979); United States v. Mitchell, 39 F.3d 465, 471 (4th Cir.1994). Also, in 1994, the 1988-89 BATF agent's guide explained that an individual could receive a license "if the applicant ... has not willfully failed to disclose required material information or willfully made false statements in connection with his application." (Your Guide to) Federal Firearms Regulation 1988-89, June 1988, p. 83. This guide is appropriately considered in assessing whether 786 there existed a clearly defined right to secure the exemption of Section 925(b) by way of an untruthful renewal application. Moreover, a reasonably well-trained law enforcement officer is entitled to rely on the views of an Assistant United States Attorney who sought an indictment charging Karl with illegal receipt of firearms while under indictment for a felony and to take into account the fact that Karl had been in fact indicted by a federal grand jury for violating Section 922(n). Finally, Mosley acted pursuant to a search warrant issued by a federal magistrate judge after a successful demonstration of probable cause to search Karl's Gun Shop.[10] Considering the absence of judicial decisions interpreting Section 925(b), the language of the statute itself, the regulations implementing the statute, the BATF publication, the views of the Assistant United States Attorney assigned to the investigation, the fact of the grand jury indictment for a violation of Section 922(n), and the action of the magistrate judge, it simply cannot be said that the right on which the plaintiffs fasten their claim was clearly established, even if the statute accorded them the right on which they fasten their claims (which, as explained above, it does not). And, it certainly would not be known by a reasonably well-trained officer that applying for or executing a search warrant in this case violated a clearly established right. Counts I, II and IV all depend upon the theory that Section 925(b) created a clearly applicable exception to Section 922(n) and therefore that the search (Count I), the seizure of weapons (Count II) and the seizure of documents (Count IV) were without probable cause. The findings that: (i) there is no exception under Section 925(b) absent a properly completed application; and (ii) even if there was, any right created by that exception was not so clearly established as of May 5, 1994 that a reasonable officer in Mosley's position would have known that his actions violated that right, thus put to an end the claims asserted against Mosley under Counts I, II and IV. Mosley will be granted summary judgment as to those counts. B. Blanton's Claims Of Qualified Immunity Under Counts I, II And IV Blanton's Motion for Summary Judgment on Counts I, II and IV are controlled by the same rationale which supports the disposition of Mosley's motion on those counts. C. The Claims Against Mosley And Blanton: Counts III And V Mosley and Blanton also seek summary judgment on Counts III and V.[11] In those counts, the plaintiffs allege that, notwithstanding the fact that the search warrant authorized only the seizure of firearms purchased after October 6, 1993 and documents relating to the receipt of firearms after that date, 6 of the 26 firearms seized were purchased before that date and several documents seized related to transactions occurring before that date. 1. Firearms During the search, it was confirmed from Karl's own records and from Mosley's personal knowledge that 12 of the 26 guns seized had been acquired after October 6, 1993, the date of the state indictment which was pending 787 when Karl filed the application for renewal of his license. Investigative efforts after the search revealed that 8 others were also acquired after that date. The plaintiffs assert that Mosley and Blanton improperly seized the remaining 6 guns because they lacked probable cause to believe that those unrecorded firearms had been acquired by Karl after October 6, 1993. Probable cause in the seizure context means that "the facts available to the officer would `warrant a man of reasonable caution in the belief,' [citation omitted] that certain items may be ... useful as evidence of a crime...." Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983). "A `practical, nontechnical' probability that incriminating evidence is involved is all that is required." Id.; see, also, United States v. Jones, 31 F.3d 1304, 1313 (4th Cir. 1994). Of course, the seizure must be within the scope authorized by the warrant, but that does not preclude the need to assess what evidence is, and is not, within that scope where, as here, the scope is defined by a purchase date and the seized item bears no facial indication of the date of purchase. Applying this standard to the circumstances presented on May 5, 1994, it must be remembered that Karl was required to maintain acquisition records and that, using those records, he had helped Mosley and Blanton locate documentation for each of the other guns, but was unable to do so for the 6 firearms in question. This rightly struck Mosley as unusual given Karl's cooperation during the search and his ability to track down the acquisition dates of other guns. Indeed, it strongly suggested that the records would not provide proof of acquisition at all. Moreover, Mosley "had personal knowledge that 8 of the weapons [h]e located on the premises had been acquired by [Karl] as a firearms dealer subsequent to October 6, 1993, but that this information had not been recorded in his Acquisition & Disposition (A & D) books." Supplemental Declaration, at 3. In this context, Mosley had valid reasons to believe that the 6 unrecorded weapons were also received after October 6 and were not listed in the A & D records. This is not, as Karl asserts, a "guilt by association" theory for firearms seizures. Rather, it is merely one factor that contributed to Mosley's assessment that there was probable cause to seize the weapons. Assessing these factors together, "a man of reasonable caution" could have determined that these weapons were evidence of a crime, namely receipt of firearms while under indictment for a felony. In addition, Mosley concluded that there existed independent grounds for the seizure of the weapons, notwithstanding the search warrant, because Karl willfully had failed to comply with the recordkeeping requirements imposed upon firearms dealers by 18 U.S.C. § 922(m). That section makes it unlawful for a licensed firearms dealer "to fail to make appropriate entry in or to fail to properly maintain, any record which he is required to keep pursuant to section § 923 ..." Failure to maintain such records subjects the weapons to seizure under 18 U.S.C. § 924(d)(1). At the time of the search, Mosley knew the following facts indicating a willful recordkeeping violation: firearms licensees are provided information about the obligation to maintain A & D records; such information was found in Karl's possession; firearms dealers are instructed to keep proper records after recordkeeping violations are uncovered during inspections; Karl's Gun Shop had been the subject of two compliance inspections where violations were discovered;[12] and Karl had been advised on March 8, 1995 of his obligation to keep proper records. In addition, while firearms acquired outside a dealer's capacity as a licensee need not be recorded, Mosley asserts that the location of firearms in Karl's home did not "provide[] any clues as to whether they had been acquired by Karl as a licensee or for personal use." Supplemental Declaration, at 4. The absence of a means to identify the firearms as personal, which would have rendered the guns unseizable, left Mosley unable to rule 788 out the possibility that the guns were evidence of a crime, namely the willful failure of a dealer to record firearms. Armed with such knowledge and finding no records respecting the guns in question, it was not unreasonable for Mosley to suspect willful recordkeeping violations in contravention of federal law. This provided an independent ground for seizure of the weapons. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Finally, the exigencies of a search permit law enforcement officers to seize articles, subject to later verification as to their status, when probable cause supports a belief that the items fall within the purview of a search warrant or are otherwise evidence of a crime. See e.g., United States v. Fawole, 785 F.2d 1141, 1144-46 (4th Cir.1986) (seizure of items found within a briefcase in order to make an inventory at agent's office and later returned was not violation of Fourth Amendment). Such a procedure is permitted in order to reduce the intrusiveness of the search and the time required to conduct it. See, e.g., United States v. Schandl, 947 F.2d 462, 465-66 (11th Cir. 1991). 2. Documents In Count V, the plaintiffs contest the seizure of "documents relating to the purchase, receipt, ordering, or shipment of firearms prior to October 6, 1993." Originally, the plaintiffs conceded that Mosley was entitled to qualified immunity with respect to Count V because he had seized only documents relating to firearms acquired after October 6, 1993 as required by the warrant. Plaintiffs' Opposition to Motion of Defendant Mosley for Summary Judgment, at 12 n. 14. However, the plaintiffs now challenge the seizure of certain additional items, which Mosley admitted to seizing in his deposition, specifically, a Report of Violations, copies of expired licenses, and three BATF-published firearms regulation books. However, none of these documents "relat[e] to the purchase, receipt, ordering and shipment of firearms prior to October 6, 1993," which are the only documents which are contested by Count V of the Complaint. There has been no motion to amend the Complaint to contest the seizure of these items, and the record shows that they are not the subject of the Complaint as to which judgment is now sought. Moreover, even if the plaintiffs were permitted to thus expand the Complaint, Mosley has raised independent justification for the seizure of each of the objectionable items: (1) the Report of Violations was evidence of knowing and willful disregard of recordkeeping obligations; (2) the search warrant specifically authorized the seizure of "Federal firearms licenses;" (3) one BATF publication, the "Green Book," was seized as evidence that Karl's false statement that he was not under indictment for a crime punishable by imprisonment for a term exceeding one year had been made "knowingly" in violation of 18 U.S.C. § 924(a)(1)(A); and (4) two copies of a second BATF publication were seized because Karl's possession of them constituted evidence both that his firearms license renewal application was knowingly false and that his recordkeeping violations were knowing and willful. Accordingly, the seizure of these documents was lawful. Hence, Mosley and Blanton are entitled to summary judgment on Counts III and V on the merits. D. The Claim Against Blanton: Count VII In Count VII, Karl alleges that Blanton violated his Fourth Amendment rights by directing a UPS employee to open a package addressed to Karl's Gun Shop without obtaining Karl's permission. Blanton maintains that he cannot be held liable for the behavior of a private citizen which he did not authorize. For purposes of deciding this issue, it will be assumed that Blanton was a state, rather than a federal employee. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts which show (1) a deprivation of a right, privilege, or immunity secured by the Constitution or federal law; and (2) that the deprivation was caused by a person while acting under color of state law. Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 155-57, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d *789 185 (1978); see also Davis v. Hudgins, 896 F.Supp. 561, 569 (E.D.Va.1995). The right allegedly deprived was the right to be secure against unlawful searches. However, there must also be state action for a deprivation of an individual's constitutional rights to occur, and state action can be found only when it can be said that the state is responsible for the specific conduct about which the plaintiff complains. Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982). The state is accountable for a private decision only when it has exercised coercive power or has provided such significant encouragement that the choice, by law, must be deemed to be that of the state. The state's mere acquiescence in private action does not in itself, convert private action to that of the state. Id. at 1004-05, 102 S.Ct. at 2785-86. According to Blanton's affidavit, he did not compel the opening of the UPS package by a private citizen. In fact, he states there were other options available to him if he wanted to discover the contents of the packages. In reality, the plaintiffs' charge rests only on the contrary, but conclusory, allegations of the pleadings. When those conclusory allegations are measured against the facts that: (i) the plaintiffs have no way of knowing what Blanton told UPS; (ii) they have produced no evidence from UPS, whose representative they could have deposed; and (iii) Blanton denies making an instruction to open the packages, the record will not support this claim. There being no genuine issue of material fact respecting Count VII, Blanton is entitled to judgment as a matter of law. CONCLUSION For the reasons set forth above, the Motion of Mosley for Summary Judgment on Counts I, II, and IV on the basis of qualified immunity and on the merits with respect to Counts III and V is granted. The Motion of Blanton for Summary Judgment on Counts I, II, and IV on the basis of qualified immunity and on the merits with respect to Counts III, V and VII is granted. The Clerk is directed to send a copy of this Memorandum Opinion to all counsel of record. It is so ORDERED. NOTES [1] The Complaint also named Caroline County, the Caroline County Sheriff and a deputy as defendants. The plaintiffs voluntarily agreed to dismiss the action as to those defendants. At the same time, the plaintiffs abandoned their request to add the Sheriff's Office as a defendant. [2] Virginia Code § 18.2-111. Karl was acquitted of this charge on September 14, 1994. [3] The plaintiffs allege that Tickle acted pursuant to instructions from Blanton. Blanton states that he never instructed Tickle to open either package because he had alternative methods of determining their contents. The record contains no statement from Tickle. However, the plaintiffs have offered no refutation to Blanton's affidavit. Hence their unfounded, conclusory assertions to the contrary are defeated by Blanton's specific affidavit. [4] On June 19, 1995, the court dismissed the civil action of the United States seeking forfeiture of the 14 unrecorded firearms seized from Karl's Gun Shop because it was untimely filed. The United States appealed from the June 19 Order and the court stayed the matter pending appeal. [5] Count III originally alleged that the seizure of 7 firearms exceeded the scope of the warrant. However, in the course of discovery, the plaintiffs determined that there were only 6 such firearms. [6] Count VI originally asserted that Caroline County failed to train and supervise employees of the Sheriff's Department in the execution of federal warrants but that count has since been abandoned. [7] The claims against Mosley (and, in reality, those against Blanton) are against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), but the principles applicable in § 1983 actions also apply in Bivens actions. [8] The Supreme Court's decision in Horton v. California, 496 U.S. 128, 130, 110 S.Ct. 2301, 2304, 110 L.Ed.2d 112 (1990) abrogated Tarantino insofar as Tarantino limited the plain view doctrine to inadvertent discoveries. Horton does not, however, affect those parts of Tarantino's holding cited herein. [9] During the related criminal proceedings, the court expressed the view that the regulations appeared to be an impermissible expansion of the requirements of 18 U.S.C. § 925(b). Upon further reflection, it appears that view was in error. [10] A magistrate's finding of probable cause receives "great deference," Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637 (1969), and an officer executing a warrant issued by a magistrate is entitled to rely upon the validity of that warrant except in limited instances of obvious irregularity. These include, for example, (1) where the magistrate wholly abandoned his judicial role; (2) where the warrant is based upon an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; (3) where the warrant is facially deficient in failing to particularize the place to be searched or the objects to be seized; or (4) where an officer submitted an affidavit that contained knowingly false statements and he should not have applied for the warrant. United States v. Leon, 468 U.S. 897, 923-24, 104 S.Ct. 3405, 3421, 82 L.Ed.2d 677 (1984); Amato v. City of Richmond, 875 F.Supp. at 1144-45. The Court finds that none of those exceptions are presented by this record. [11] While Blanton's actual Motion for Summary Judgment purports only to seek summary judgment on Counts III and V on the basis of qualified immunity, the Memorandum in Support of his motion addresses these counts on the merits. [12] This is not probative of a pattern of lawbreaking, but rather of Karl's knowledge that failure to keep records was illegal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618974/	71 Mich. App. 275 (1976) 248 N.W.2d 232 ADAMS v. WAYNE COUNTY TREASURER Docket Nos. 20365, 20433. Michigan Court of Appeals. Decided September 27, 1976. 277 Karbel, Eiges, Rothstein & Karbel, for plaintiffs. Aloysius J. Suchy, Corporation Counsel, and John K. Godre, Assistant Corporation Counsel, for defendants Wayne County, Wayne County Treasurer and the Wayne County Probate Judges. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Robert R. Roesch, Assistant Attorney General, for defendant Michigan State Treasurer. Before: BRONSON, P.J., and M.J. KELLY and M.F. CAVANAGH, JJ. M.F. CAVANAGH, J. Plaintiffs commenced a class action in Wayne County Circuit Court challenging the constitutionality of § 17 of Chapter 1 of Michigan's Probate Code, MCLA 701.17; MSA 27.3178(17) as amended through 1969 (the probate inventory fee).[1] Plaintiffs claimed that the statutory 278 fee schedule, in which the fee was based on 279 the size of the estate, was in fact a tax or revenue raising scheme rather than a reasonable expense of administration in probating decedent's estates. Plaintiffs alleged that those provisions of the statute, subparagraphs (1) and (3) of § 17, as such a tax or revenue raising scheme, were unconstitutional, in violation of Const 1963, art 4, § 24; art 9, § 3; and art 4, § 32. In the alternative, plaintiffs argued that even if the fee was held not to be a tax, the provisions were nevertheless unconstitutional, in violation of the title-body clause, Const 1963, art 4, § 24, and the equal protection clauses of the Federal and state constitutions, US Const, Am XIV and Const 1963, art 1, § 2. They sought relief ordering the Wayne County Treasurer, the State Treasurer, and the Wayne County Probate Judges to cease collecting or enforcing such fees and to return certain fees already paid. Both plaintiffs and defendants moved for summary judgment. The trial court granted plaintiffs' motion for summary judgment and all of their requested relief. Defendants appeal of right. In its written opinion the trial court ruled the suit a proper class action and then held that, on the face of the statute, the fee was a tax. The court relied on Vernor v Secretary of State, 179 Mich 157; 146 NW 338 (1914), in which the Supreme Court held that the amount of an automobile licensing fee, graduated according to horsepower, was unreasonably disproportionate to the 280 expense involved and, therefore, a tax. The trial court stated: "We need take judicial notice that quantity and nature of services by the Court is relatively similar regardless of the size of the estates considered in this action." The court determined that the provisions violated Const 1963, art 4, § 32, ("Every law which imposes, continues or revives a tax shall distinctly state the tax"), and were therefore unconstitutional. The trial court also held that the statutory fee schedule was an improperly assessed ad valorem tax and hence unconstitutional under Const 1963, art 9, § 3. The court concluded that, whether the sums to be collected were fees or a tax, the provisions were unconstitutional under Const 1963, art 4, § 24, since the title of the act mentioned nothing about a fee or tax or the collection of the fee or tax. The court declined to decide the other constitutional issues raised by plaintiff. We determine initially that the trial court erred in taking judicial notice of the fact that the quantity and nature of the services performed by the probate court were similar regardless of the size of the estates involved. That proposition may very well be true, but it was not a fact of which the circuit court could properly take judicial notice. See McCormick, Evidence (2d ed), § 328 et seq., p 757, et seq., (1972), also, 9 Wigmore, Evidence (3d ed), § 2569, pp 539-540 (1940). The trial court also stated: "This Court must take judicial notice that the Wayne County Probate Court receives the bulk of its funds for operation from the County of Wayne." 281 This too was not a matter of which the circuit court could properly take judicial notice. Vernor v Secretary of State, supra, is not to the contrary. In that case, the Supreme Court emphasized that the Legislature had converted a prior system of taxation of automobiles into a registration system, with the fee geared to the horsepower of the automobile. There, the legislative intent to tax appeared in the statute, and the sole expenses of the state related to registration were the same for each registrant, despite imposition of a graduated "fee" schedule. The Vernor court carefully noted that, "[i]t has been held that what is a reasonable fee must depend largely upon the sound discretion of the legislature, having reference to all the circumstances and necessities of the case. It will be presumed that the amount of the fee is reasonable, unless the contrary appears upon the face of the law itself, or is established by proper evidence." Vernor, supra, 179 Mich 168. (Emphasis added.) In this case, the statute upon its face seems reasonable in gearing the probate inventory fee to the size of the estate. It is not obvious, as it was in Vernor, that the expenses to the state connected with the fee will be equal for each estate. A legislative purpose to tax does not otherwise appear in this statute. This Court considered almost identical issues in Foreman v Oakland County Treasurer, 57 Mich App 231; 226 NW2d 67 (1974), and held that the probate inventory fee was not unconstitutional on its face. We agree with that judgment, but remand to allow plaintiffs the opportunity to produce competent evidence to support their claim. Absent such evidence, plaintiffs' challenge to the probate inventory fee as an unconstitutional 282 tax must fail. Vernor v Secretary of State, supra. To provide guidance on remand, however, we shall address certain other issues raised. I The probate inventory fee does not violate the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24, which provides: "No law shall embrace more than one object, which shall be expressed in its title." The constitution seeks to minimize two dangers via the title-object clause. First, that legislators approve statutes that are not fully understood and, second, that the public be unaware of the laws of this state. People v Stanton, 69 Mich App 495; 245 NW2d 106 (1976). Neither of those dangers is present in the context of the probate inventory fee. The Legislature has amended the section of the Probate Code providing for the probate inventory fee three times since the creation of the fee in 1966. It seems clear that the Legislature took some care in creating and revising the probate inventory fee: it plainly was not the product of careless consideration. The public is not likely to be misled by the title to the section dealing with the fee. People v Milton, 393 Mich 234, 246-247; 224 NW2d 266 (1974), provides a guideline for analysis of this issue: "It is now well established that the title need not serve as an index of all that the act contains: "`An abridgement of all those sections is not essential to a sufficient title. While it contains various related provisions not directly indicated or enumerated in 283 the title, under the construction of this constitutional requirement, as many times reviewed by this court, if the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose, the constitutional requirement is met.' Loomis v Rogers, 197 Mich 265, 271; 163 NW 1018 (1917)." The Michigan probate code is entitled: "An Act to revise and consolidate the statutes relating to the organization and jurisdiction of the probate courts of this state; the powers and duties of such courts, and the judges and other officers thereof; the statutes of descent and distribution of property, and the statutes governing the probating of estates of decedents, disappeared persons and wards, change of name of adults, the adoption of children and the jurisdiction of the juvenile division of the probate courts over children; to prescribe the manner and time within which claims against estates and other actions and proceedings may be brought in said courts; pleading, evidence, practice and procedure in actions and proceedings in said courts; appeals from said courts; to provide remedies and penalties for the violation of certain provisions of this act; and to repeal certain acts and parts of acts." (Emphasis added.) 1939 PA 288. Provision of the fee is "germane, auxiliary, or incidental" to the general purpose of providing for "practice and procedure" in the probate courts. Or, to put it in terms of the purpose of this constitutional provision, the title indicates that this is where to look for provisions such as filing fees. We agree with Foreman v Oakland County Treasurer, supra, that the probate inventory fee does not violate the title-object clause. The trial court's ruling on that issue is reversed. 284 II Appellees argue that the probate inventory fee violates equal protection of the law under Const 1963, art 1, § 2 and US Const, Am XIV. The trial court found it unnecessary to rule on this issue, and in our disposition of the case, we deem it unnecessary as well, allowing the plaintiffs to offer proof to sustain their heavy burden as recognized in Foreman v Oakland County Treasurer, supra. III The trial court was correct in finding this suit to be a proper class action under GCR 1963, 208.1(3). Our Supreme Court has recently examined the requirements for a valid class action under GCR 1963, 208.1(3) in Northview Construction Co v St Clair Shores, 395 Mich 497, 508-509; 236 NW2d 396 (1975), reh granted, 395 Mich 924 (1976): "With reference to spurious class actions the courts focus on two general requirements. `First, the representatives must share common issues and interests with the unnamed class members. Second, the court must be assured that the representatives will vigorously prosecute the rights of the class through qualified counsel.' Epstein v Weiss, 50 FRD 387, 392 (ED La, 1970)." In this action, each of the three named plaintiffs represents a different division of the affected class. Plaintiff Mary Blackburn represents fiduciaries of estates of decedents who were required to pay the fee imposed by the statute in order that they be discharged of their fiduciary duty by the probate court. Plaintiff Stuart A. Goldfarb represents those fiduciaries of estates who have already paid the required fee, but have not yet been discharged from their fiduciary responsibility by the court. 285 Plaintiff Irven Adams represents fiduciaries of estates who have not yet paid the required fee, but who will be required to do so before the estate is closed and the fiduciaries discharged. The named plaintiffs have continued their representation over the six years since the suit's inception, and there has been no showing that they have failed in their duty to adequately represent their respective divisions of the class. The common issues of fact and law between the class and the named parties are apparent. Merely because other members of the class have failed to intervene is no reason to disqualify the present named plaintiffs as class representatives. In Northview Const Co v St Clair Shores, supra, the fact that the original parties had accepted judgments and satisfaction did not prevent subsequent named parties from continuing to represent the class. This case shows even less danger of inadequate representation. IV If the circuit court finds the probate inventory fee to be unconstitutional, it has the power to order restitution of fees already collected. Although appellant State Treasurer argues that mandamus is the proper action, a suit for recovery of fees collected under a disputed statute is not the suit for enforcement of a clear legal duty on the part of a state official that is the kernel of mandamus. Bills v Grand Blanc Twp, 59 Mich App 619, 622; 229 NW2d 871 (1975), Iron County Board of Supervisors v Crystal Falls, 23 Mich App 319; 178 NW2d 527 (1970). The appellees need not show absence of good faith on the part of the appellants in order to recover upon a holding of unconstitutionality. Although good faith of the defendants may be a 286 factor relevant in considering proper equitable relief, Bond v Ann Arbor School Dist, 383 Mich 693; 178 NW2d 484 (1970), it is not a defense per se to an action for restitution. Appellants claim that the small size of the recovery of individual class members should preclude recovery. That argument lacks merit. "If the class action was properly brought, the fact that the fees to be recovered are small for each member of the class, or that expense may be entailed in making a refund, or that the funds have been used by defendant, ought not to bar recovery. It is in the very nature of a class action that the claim of each individual member of the class may be such as to alone scarcely warrant pursuit of repayment. If an action is successful, the fruits of the action should not be denied to the class unless the reasons for denial are most cogent." Bond v Ann Arbor School Dist, 383 Mich at 702. Reversed and remanded. No costs, a public question being involved. NOTES [1] "Sec. 17. (1) In all decedents' estates in which proceedings are instituted for probate on and after January 1, 1970, the probate judge shall charge and collect the following fees as an expense of administration: In small estates under section 41 of chapter 8, $6.25; in small estates under section 39 of chapter 8, $18.75; in other estates, on the value of all assets, real and personal, as of the date of the death of the decedent, as follows: Estates of value of less than $3,000.00, $25.00; on value of $3,000.00 and less than $10,000.00, $25.00 plus 5/8 of 1% over $3,000.00; on value of $10,000.00 but less than $25,000.00, $68.75 plus 1/2 of 1% over $10,000.00; on value of $25,000.00 but less than $50,000.00, $143.75 plus 3/8 of 1% over $25,000.00; on value of $50,000.00 but less than $100,000.00, $237.50 plus 1/4 of 1% over $50,000.00; on value of $100,000.00 to $500,000.00, $362.50 plus 1/8 of 1% over $100,000.00; for each additional $100,000.00 value or large fraction thereof, over $500,000.00, $62.50; for each additional $100,000.00 value, or larger fraction thereof, over $1,000,000.00, $31.25. "(2) The probate judge or the probate register shall make 1 certified copy or exemplification of any record, paper or proceeding in such probate court, and shall furnish the same to the fiduciary of the estate or his attorney of record on request therefor, except as shall be hereinafter specifically provided; and shall charge and collect fees for such exemplifications and certified copies as follows: For letters of authority, $2.50; for order confirming adoption, $2.50; for order authorizing waiver of 3-day waiting period and immediate issuance of marriage license, $3.75; for performing a marriage ceremony, $6.25; and for all other exemplifications and certified copies in closed estates, guardianships, and in matters not connected with estates in process of administration or for any other exemplifications and certified copies which the probate judge may issue, at the rate of $2.50 for the first page and $1.25 for each additional page thereof, such charge to cover the entire cost of such certified copy or exemplification, including the certification thereof; issuance of commission to take testimony, $6.25, which fees shall accrue 2/5 to the county treasurer and 3/5 to the state treasurer, to be deposited in the general fund of the county and of the state. Such court, where such order shall necessarily be entered in the administration of an estate, shall deliver to the printer or publisher a certified copy of each order for publication. Such court may in its discretion waive the fee for performing a marriage ceremony where the parties thereto are indigent and the prospective bride is pregnant. No charge shall be made nor shall any fee be collected on account of or by reason of the furnishing of certified copies in connection with proceedings for the admission and commitment of persons to mental hospitals or any facility or institution maintained or operated by the state of Michigan or the federal government for the care of mentally ill persons, or for determining inheritance tax. Fees for taking, certifying, sealing and forwarding depositions shall be $5.00, and 10 cents per folio, which shall be considered as costs in the case, and for each copy of the deposition furnished 3 cents per folio. The probate court stenographer may collect for transcripts of testimony requested by any interested party, unless ordered by the probate judge, other than depositions, the sum of 25 cents per original folio and 10 cents for each copy thereof unless a lower rate is agreed upon, and such fees collected shall be paid to such probate court stenographer by the party ordering him, which shall accrue to him in addition to his salary. This section shall not be so construed as to modify or repeal Act No. 243 of the Public Acts of 1919, being section 35.41 of the Compiled Laws of 1948. "(3) All fees received by the probate court during each month shall be paid to the county treasurer and the state treasurer on or before the tenth day of the succeeding month and shall be credited to the general fund of such county and the state. All fees chargeable under paragraph (1) of this section shall be due and payable to the probate judge before the filing of the final account or within a period of 1 year after the commencement of probate proceedings, whichever occurs first, and no such final accounting shall be accepted by the probate judge until such fees have been paid in full and shown as part of the final accounting; an official receipt shall be issued to the payer at the time of each collection of fees."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618978/	915 F.Supp. 556 (1996) JANUS PETROLEUM COMPANY, INC., Plaintiff, v. UNITED STATES of America, Defendant. No. 94 CV 0624. United States District Court, E.D. New York. February 20, 1996. Uncyk, Borenkind & Nadler (Eli Uncyk, of counsel), New York City, for plaintiff. Zachary W. Carter, U.S. Attorney (Thomas A. McFarland, of counsel), Brooklyn, NY, U.S. Dept of Justice, Tax Div. (Peter Sklarew, of counsel), Washington, DC, for defendant. 557 MEMORANDUM AND ORDER NICKERSON, District Judge: Plaintiff Janus Petroleum Company, Inc. ("Janus"), a wholesale distributor of gasoline, brought this action against the United States under section 7422 of the Internal Revenue Code (the "Code"), 26 U.S.C. § 7422, seeking a credit or refund of alleged overpayments of federal gasoline excise taxes for the quarters ending March 31, June 30, and September 30 of 1989. Janus claims jurisdiction pursuant to 28 U.S.C. § 1346(a)(1), giving the court jurisdiction in an action against the United States for "recovery" of any tax alleged to have been erroneously or illegally assessed or "collected." Plaintiff moves for summary judgment, and defendant cross-moves for partial summary judgment. The case raises an issue the government says is of first impression. I The following facts are undisputed. In the first three quarters of 1989 Janus bought gasoline from various suppliers. Janus says the amount of the federal excise sales tax on gasoline was included in the price it paid these suppliers. Janus later sold some of the gasoline to the City of New York (the "City"), which is exempt from the tax. On October 19, 1989, Janus filed with the Internal Revenue Service (the "Service") three claims for refund of alleged overpayments in 1989, $125,080.98 in the first quarter, $279,603.87 in the second, and $9,512.37 in the third, attributable to tax exempt sales to the City. The Service denied the claims because Janus had not shown that the upstream suppliers liable for the tax had paid the Service. Janus then claimed the same alleged overpayments as tax credits against federal gasoline excise taxes it incurred in 1990 and 1991. The Service disallowed these credits and assessed a deficiency. II To put the case in context requires a brief review of the recent history of the federal gasoline excise tax. Before 1988, the Code imposed the tax on the sale of gasoline by an importer or "producer," see § 4081, but exempted a sale by one "producer" to another provided that other producer registered with the Service under § 4101. "[P]roducer" was defined in § 4082 to include "wholesale distributors." Because wholesale distributors generally did register as producers, the tax was typically deferred until they sold gasoline to a retail gas station. A registered wholesale distributor could sell tax-free to state and local governments but had to pay the tax on sales to commercial customers. See § 4221(a). These earlier provisions led to the evasion of huge amounts of tax revenues. Because the Service had a hard time tracking gasoline after its removal from terminals, dishonest wholesale distributors would tell their customers they were registered for tax-free purchases, invoice those customers for the amount of tax allegedly payable to the Service by the wholesale distributor, and then dissolve or disappear before the Service could catch up with them. See United States v. Musacchia, 900 F.2d 493, 495-96 (2d Cir. 1990), cert. denied, 501 U.S. 1250, 111 S.Ct. 2887, 115 L.Ed.2d 1052 (1991) (describing a typical "daisy chain" scheme for evading the tax). The United States was robbed of literally multimillions of dollars. See H.R.Rep. No. 127, 103d Cong., 1st Sess. (1993), 1993 WL 209639, at 73 (citing estimates that gasoline excise tax evasion has resulted in losses of between $250 million and more than $1 billion since 1986). To minimize such unscrupulous schemes, the Tax Reform Act of 1986 (the "1986 Act") amended the Code to move the point of taxation upstream as of 1988. See H.R.Rep. No. 391 (II), 100th Cong., 1st Sess. (1987), reprinted in 1987 U.S.C.C.A.N. 2313-378, XXXX-XXXX. Beginning in that year, § 4081(a)(1) imposed a single tax on the earlier of the removal of gasoline from a terminal or its sale by a refiner, importer, or terminal operator. Further legislation was passed in 1990 in order to try to prevent continued evasion. See H.R.Rep. No. 247, 101st Cong., 1st Sess. (1989), reprinted in 1989 U.S.C.C.A.N. 1906, 558 2794. But that legislation is not applicable here. III The 1986 legislation, effective in 1988, did not change various other provisions in the Code. Even before 1988, § 6416 had allowed, and it still allowed, taxpayers, on certain conditions, to recover overpayments of taxes. For example, under § 6416(b)(2)(C), "[t]he tax paid" on the sale of gasoline "shall be deemed to be an overpayment" if the gasoline has been sold to a state or local government for its exclusive use. This case concerns a subsection added by the 1986 legislation to § 6416. That subsection provides that a "wholesale distributor who purchases any gasoline on which tax imposed by section 4081 has been paid and who sells the product to its ultimate purchaser shall be treated as the person (and the only person) who paid the tax." § 6416(a)(4)(A). Janus says that because it made a payment to a supplier that purported to include the tax in its invoice Janus thereby "paid" the tax. That argument strikes the court as meritless, indeed fatuous. Manifestly, someone has to have "paid" the tax not to a private party but to the Service before a "refund" is justified. Janus may "be treated" as the payor only if the tax "has been paid" to the Service. Given the history of evasion of the gasoline excise tax, Congress could hardly have been so naive as to make payments to suppliers the equivalent of payments to the Service. There is also not the slightest warrant for Janus' contention that the tax is imposed on and paid by the purchaser and merely collected by the seller. Section 4081(a)(1), referred to above, imposes a single tax and imposes it solely on the refiner, importer, or terminal operator, not on the buyer. Cf. United States v. Victoria-21, 3 F.3d 571, 573 n. 4 (2d Cir.1993) ("Federal excise tax law requires a one-time payment of $.141 per gallon on all gasoline sold. 26 U.S.C. § 4081.") (emphasis added). When Congress has sought to impose collected excise taxes it has used appropriate language to do so. See, e.g., 26 U.S.C. § 4251(a) (tax on amounts paid for telecommunications "shall be paid by the person paying for such services"). IV The issue remains as to whether the burden is on Janus to show that the Service has actually received payment of the tax. The Service says that this court has no jurisdiction unless Janus makes that showing. Under 28 U.S.C. § 1346(a)(1), the court has jurisdiction over actions against the United States for the "recovery" of any "tax alleged to have been erroneously or illegally assessed or collected." The Supreme Court has held that under this section a condition precedent to the right to sue to "recover" a tax is full payment to and collection by the United States of the tax due. See Flora v. United States, 357 U.S. 63, 74, 78 S.Ct. 1079, 1086, 2 L.Ed.2d 1165 (1958). See also Magnone v. United States, 902 F.2d 192, 193 (2d Cir.), cert. denied, 498 U.S. 853, 111 S.Ct. 147, 112 L.Ed.2d 113 (1990). Ordinarily only a party legally liable for a tax may bring suit for a refund under 28 U.S.C. § 1346(a)(1). See Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States Internal Revenue Serv., 845 F.2d 139, 142 (7th Cir.1988). Section 6416(a)(4)(A) creates an exception to that rule. It permits a person who buys gasoline on which a tax "has been paid," that is, a tax the Service has "collected," to "be treated" as the payor for purposes of a claim for a refund. Janus argues that the Service presumably knows whether or not it "has been paid" the tax and that the Service may not defeat the refund claim unless it shows the tax has not been paid. This is quite contrary to the judicial decisions cited above requiring the person suing for a refund to establish that the tax has been paid in full to the United States. Moreover, the argument makes no sense. To allow wholesale distributors such as Janus to obtain a refund merely by stating that 559 they paid a price that included the cost of the tax would invite further hemorrhaging of gasoline tax revenues. Gasoline purchasers would have little incentive to ensure that the taxes had been paid by an upstream supplier. To require those purchasers to provide proof that the tax "has been paid" makes it less likely they will participate in schemes of evasion. Janus is also in a better position than the Service to obtain documentation of payment of the tax. A buyer of gasoline may readily demand as a condition of purchase that its seller provide that proof. Because payments to the Service are often made not by the direct supplier of the party seeking the refund, but by upstream suppliers, the Service may have difficulty identifying the payor of the tax. In addition, even if the Service can verify that a particular supplier has paid the tax in a particular quarter, it may not be able to determine whether those payments were attributable to the gasoline for which the refund is sought. Indeed, the Code's confidentiality provisions may prevent the Service from disclosing any information it does obtain. See § 6103. Janus' claim will be dismissed for lack of jurisdiction to the extent that it seeks refunds of taxes whose payment it has not established. V The Service says it will allow refunds to the extent it has received payments of tax for gasoline sold by Janus to the City. But the Service says that some of the refunds it granted in the first two quarters of 1989 were erroneous because there is no proof that taxes were paid on the sales of all the gasoline on which those refunds were based. The Service wishes to reduce the refund payments due in this action by the amount that its previous refunds were excessive. If sums already refunded remain after this reduction, the Service seeks to offset them against the deficiencies assessed when the Service disallowed the credits by Janus in subsequent quarters. The Service is authorized, within the applicable limitations period, to credit the amount of any overpayment against "any liability" for federal taxes of the person who made the overpayment. See § 6402(a). After offsetting the overpayment against any outstanding tax liability, the Service "shall" refund any remaining balance to that person. See id. Any refunds to Janus for sales of gasoline on which the excise taxes had not been paid were erroneous. Janus is liable for the amount of these refunds as well as for the deficiency that resulted when the Service disallowed the credits that it had claimed in 1990 and 1991. But there is a question whether the applicable period of limitations has expired. Section 6532(b) provides that a suit under § 7405 for recovery of an erroneous refund must be brought within two years after the making of the refund, or five years if any part of the refund was induced by fraud or misrepresentation. The erroneous refunds were issued in 1989. The Service has not yet brought suit. Even if the refund had been induced by fraud or misrepresentation which the government has not allegedthe limitations period has expired. But suit under § 7405 is not the only remedy by which the Service may recover an erroneous refund. See Brookhurst, Inc. v. United States, 931 F.2d 554, 556-57 (9th Cir.), cert. denied., 502 U.S. 907, 112 S.Ct. 299, 116 L.Ed.2d 242 (1991); Tucker v. United States, No. 87 Civ. 3349, 1989 WL 58012, at 3-4 (S.D.N.Y. May 23, 1989). It may also use the Code's assessment provisions, which have a different limitations period. Section 6501(a) provides that the amount of tax imposed shall be assessed within three years after the filing of the return. If a tax has been assessed within this period, the Service may collect it by levy or court proceeding within ten years after the assessment. See § 6502(a). The Service's papers show that it has assessed deficiencies against Janus for its disallowed credits in 1990 and 1991. It may set off Janus' refunds in this action against these deficiencies. The record does not show that the Service has made assessments for the *560 refunds erroneously issued in 1989. If the Service did so in a timely fashion, it may set off any refunds due to Janus against this liability. VI Plaintiff's motion for summary judgment is denied. The Service's cross-motion for partial summary judgment is granted in part and denied in part as detailed above. The government may have thirty days from entry of this order to submit documentation of such assessments against Janus as it made concerning the amounts it claims were erroneously refunded in 1989, and to submit computations showing the amounts of refunds allowed and disallowed in each quarter. Janus may file objections in the following thirty days. So Ordered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618979/	248 N.W.2d 21 (1976) 197 Neb. 180 Mark A. BUCHHOLZ, Appellee, Cross-Appellant, v. Cleone S. BUCHHOLZ, Appellant, Cross-Appellee. No. 40496. Supreme Court of Nebraska. December 15, 1976. 22 Paul E. Galter, Lincoln, for appellant. Barney & Carter, P. C., Herbert M. Brugh, Lincoln, for appellee. Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ. PER CURIAM. This is an action to dissolve a marriage brought by Mark A. Buchholz against his wife Cleone S. Buchholz. The principal thrust of the respondent wife on appeal is the assertion that the Nebraska divorce statutes are unconstitutional. She also contends that the award of alimony is insufficient. We affirm the District Court judgment. Respondent's first contention is that she has a property right in the marriage. Although not entirely clear from her brief, she apparently believes that the decree of divorce deprives her of a substantial property interest in violation of the Fourteenth Amendment's due process clause. Respondent cites no case in point but seeks to compare the situation with that of a tenured job holder who loses his position "without fault." See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570. It is generally held that marriage is not an ordinary civil contract. Its nature is well expressed in the following quotation from 55 C.J.S. Marriage § 1b, p. 806: "Marriage is generally considered a civil contract differing in notable respects from ordinary contracts, but it is also and specially a status or personal relation in which the state is deeply concerned and over which the state exercises exclusive dominion." See, also, 52 Am.Jur.2d, Marriage, s. 5, p. 867; Ritzer v. Ritzer, 243 Mich. 406, 220 N.W. 812; Willits v. Willits, 76 Neb. 228, 107 N.W. 379, 5 L.R.A.,N.S., 767. In Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654, it was held: "Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change; and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, 23 therefore, affecting this institution and annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts by state legislation." The proposition here presented was directly in issue in In re Marriage of Walton, 28 Cal.App.3d 108, 104 Cal.Rptr. 472. The California law is similar to our own. The court stated: "Similarly, Wife's contention that the dissolution of her marriage on the ground of irreconcilable differences under The Family Law Act unconstitutionally deprives her of a vested interest in her married status cannot be sustained. Certainly a wife has a legitimate interest in her status as a married woman, but, separate and apart from marital property and support rights as to which Wife makes no contention, we entertain some doubt whether her interest in her status as a married woman constitutes property within the purview of the due process clauses of article I, section 13 of the California Constitution and the Fourteenth Amendment to the United States Constitution. In any event, in view of the state's vital interest in the institution of marriage * * * and the state's plenary power to fix the conditions under which the marital status may be created or terminated * * , it is clear that Wife could have no vested interest in the state's maintaining in force the grounds for divorce that existed at the time of her marriage. Her interests, however it be classified, was subject to the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. * * "Even if Wife is said to have some constitutionally protected vested right, she has not been deprived thereof without due process of law. `Vested rights, of course, may be impaired "with the due process of law" under many circumstances. The state's inherent sovereign power includes the so called "police power" right to interfere with vested property rights whenever reasonably necessary to the protection of the health, safety, morals, and general well being of the people * * .'" See, also, In re Marriage of Franks (Colo.), 542 P.2d 845. We agree that the marriage contract does not create a property right in the marital status. A marriage is not a property interest but is, in essence, a personal relationship subject to dissolution on terms fixed by state law. It is asserted that the Nebraska statutes discriminate against women and are in violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States in that women, after a divorce, are not as capable of supporting themselves as are men. Section 42-365, R.S.Supp., 1976, provides: "When dissolution of a marriage is decreed, the court may order payment of such alimony by one party to the other and division of property as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, * * and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party." Section 42-366, R.R.S.1943, provides that the parties may agree on a property settlement and, in the absence of an agreement, the court may decree a property division with due regard for the economic circumstances of the parties and any other relevant evidence. In addition to an award of property, the court may make an award of alimony. It is evident that the law is designed to meet the question of ability of either party to provide for himself or herself and to offset it as nearly as can be done considering the economic situation of the parties. The respondent would have us rule, in substance, that once a marriage is effected a wife has a lifetime lien on her husband for support. Such a rule would be a two-edged sword as often the wife is much wealthier than the husband. We are unable to perceive any discrimination against women; on the contrary, the statutes are designed for their protection. The alimony and division of property provisions *24 are rarely, if ever, invoked in behalf of men. In some instances husbands have asserted that statutes which grant alimony to a wife but not to a husband are discriminatory. Such contentions have been rejected. See, Saraceno v. Saraceno (Mass.), 341 N.E.2d 261; Hendricks v. Hendricks (Tex. Civ.App.), 535 S.W.2d 668; Williams v. Williams (La.), 331 So.2d 438. In the latter case it was held: "Equal protection clause of Fourteenth Amendment to United States Constitution does not deny the state power to make legislative classification based on sex, provided that classification is reasonable, not arbitrary, and rests upon some ground of difference having fair and substantial relation to object of legislation." Respondent's final assignment of error is that the award of alimony was insufficient or inadequate. The parties were married September 6, 1953, and have been separated since October 27, 1972. They have a son now 20 years of age and a daughter 18 years of age. Petitioner Mark A. Buchholz is a Judge of the Nebraska Workmen's Compensation Court whose salary at the time of trial was $30,500 per year. Respondent is a registered nurse. Each of the parties received property valued at approximately $27,000; support for the minor daughter was fixed at $150 per month, payable to respondent who received physical custody; and petitioner was ordered to pay alimony of $500 per month for 24 months and of $400 per month for an additional 95 months, terminable on the death of either party or the remarriage of respondent. In addition, petitioner was ordered to pay the expense of respondent's retraining as a registered nurse within 3 years of the decree, not exceeding $2,000, should respondent desire such training. Costs including an attorney's fee of $2,500 were taxed to petitioner. Petitioner cross-appeals on the ground that alimony and attorney's fees allowed are excessive. He points out that he will desire to finance the two children through college. The cross-petition is denied. The judgment is affirmed in all respects and respondent is allowed an attorney's fee of $500 to be taxed to petitioner with other costs. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618890/	38 So. 3d 153 (2010) LEBEAU v. LEBEAU. No. 5D09-1004. District Court of Appeal of Florida, Fifth District. June 25, 2010. Decision Without Published Opinion Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1618905/	38 So. 3d 1258 (2010) STATE of Louisiana v. Benny Christopher KIMBROUGH. No. 09-1564. Court of Appeal of Louisiana, Third Circuit. June 2, 2010. 1259 Don M. Burkett, District Attorney, Ronald D. Brandon, Assistant District Attorney, Many, LA, for Appellee, State of Louisiana. James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant, Benny Christopher Kimbrough. Court composed of OSWALD A. DECUIR, MARC T. AMY, and JAMES T. GENOVESE, Judges. DECUIR, Judge. The Defendant, Benny Christopher Kimbrough, was charged with attempted armed robbery, in violation of La.R.S. 14:27 and 14:64. The State invoked the firearm enhancement provision of La.R.S. 14:64.3 in the bill of information. The Defendant pled guilty and was subsequently sentenced to serve twelve years at hard labor without benefit of probation, parole, or suspension of sentence. The Defendant now appeals. At the guilty plea proceeding, the factual basis offered by the State shows that on March 25, 2009, the Defendant and a codefendant entered the Roundup Grocery in Zwolle, Louisiana. The codefendant was armed with a rifle, and the Defendant attempted to take a money tray from behind the counter, but he was unsuccessful. After pleading guilty to the crime of attempted armed robbery based on these facts, the Defendant filed the instant appeal, raising two assignments of error. The Defendant contends that prior to entering his guilty plea, he was not properly apprised of his constitutional rights. He also argues that the trial court failed to give sufficient consideration to certain mitigating factors and imposed an excessive sentence in this case. Because we find merit to the constitutional issues raised by the Defendant, we need not address the appropriateness of the sentence imposed. The record before us contains the transcript of the guilty plea proceeding during which the trial court discussed with the Defendant the consequences of his decision to enter a plea of guilty. The Defendant now argues that the trial court failed to properly apprise him of his right to counsel and his right against self-incrimination, two core constitutional rights as stated in State v. Casson, 07-1081 (La.App. 3 Cir. 2/4/09), 2 So. 3d 1246, writ denied, 09-501 (La. 11/20/09), 25 So. 3d 785. For this reason, he requests that his conviction be vacated. The State concedes the transcript does not reflect that the Defendant was apprised of his right against self-incrimination. Although the Defendant did not file a motion to withdraw his guilty plea in the lower court, we have determined that his claim is not procedurally barred from consideration on appeal. See Casson, 2 So. 3d 1246, and State v. Whiddon, 99-1 (La.App. 3 Cir. 6/2/99), 741 So. 2d 797. In the similar case of State v. Myers, 43,105 (La.App. 2 Cir. 3/19/08), 978 So. 2d 595, the defendant claimed on appeal that 1260 he was not apprised of his privilege against self-incrimination prior to the entry of his guilty plea. Just as in the instant case, the transcript in Myers reflected a detailed and thorough discussion between the trial court and the defendant which included the defendant's understanding and voluntary waiver of certain constitutional rights. The discussion did not include, however, any mention of the defendant's waiver of the privilege against self-incrimination. The second circuit, in reversing his conviction, held: The entry of a guilty plea must be a free and voluntary choice on the part of a defendant. State v. Garth, 622 So. 2d 1189 (La.App. 2d Cir.1993). A valid guilty plea requires a showing that the defendant was advised of his constitutional rights, including his privilege against compulsory self-incrimination, his right to a trial by jury, and his right to confront his accusers. There must also be an express and knowing waiver of those rights. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Indeed, an express and knowing waiver of those rights must appear on the record, and an unequivocal showing of a free and voluntary waiver cannot be presumed. State v. Morrison, 599 So. 2d 455 (La.App. 2d Cir.1992). Furthermore, the trial court cannot rely on an assumption that defense counsel adequately informed the defendant of his rights. State v. Williams, 384 So. 2d 779 (La.1980). In fact, appellate courts are mandated to indulge every reasonable presumption against waiver of these fundamental rights. State v. Dickson, 505 So. 2d 758 (La.App. 2d Cir.1987). In this case, the defendant concedes that the trial court informed him of his right to a jury trial and his right to confront and cross-examine the witness against him. However, the defendant alleges that the trial court failed to inform him of his privilege against self-incrimination. The minute entry for June 18, 2007, reflecting the taking of the defendant's guilty plea states: The Court informed the Defendant of his CONSTITUTIONAL RIGHTS as per Boykin v. Alabama (See Court Reporter's Transcript). The transcript indicates a colloquy during which the trial judge extensively questioned the defendant. In doing so, the trial judge determined that the defendant had an eighth grade education, had limited reading and writing skills, and that his financial affairs were handled in part by his sister. The trial judge also learned that the defendant was living with his mother at the time the incident in question occurred. The trial judge confirmed that the defendant's guilty plea had not been induced by any threats or promises. The trial judge also asked the defendant if he was on any drugs or medications which would affect his ability to understand the proceedings, to which the defendant gave an equivocal answer concerning a pain medication he takes at night. As to a waiver of rights, the trial judge asked the defendant if he was aware that by pleading guilty he was waiving his right to a trial by jury, his right to confront and cross-examine witnesses at a jury trial, and his right to appeal the proceedings for any reason except for excessiveness of the sentence imposed. The defendant answered all these questions in the affirmative. The colloquy lacks any express mention by the trial judge of the defendant's right against self-incrimination. Alternatively, the minute entry for June 18, 2007, reflecting the taking of the defendant's guilty plea, made a general reference 1261 to the defendant having waived his constitutional rights per Boykin, supra. Jurisprudence has established that in the event of a discrepancy between the minutes and the transcript, the transcript controls. State v. Lynch, 441 So. 2d 732 (La.1983). Furthermore, the record contains no other affirmative showing that a proper waiver of the defendant's right against self-incrimination ever took place. The record contains no guilty plea form indicating an understanding or waiver of the right against self-incrimination nor do the minutes of any of the hearings preceding the taking of the plea indicate that the defendant was informed of his right against self-incrimination. This assignment of error, therefore, has merit. The trial court has failed to comply with the requirements of Boykin v. Alabama, supra. Therefore, the plea of guilty and conviction shall be set aside, the sentence vacated, and the case remanded to the district court for further proceedings. Id. at 597-98. By contrast, in State v. Cole, 04-615 (La.App. 5 Cir. 3/1/05), 900 So. 2d 15, the fifth circuit rejected a challenge to the defendant's guilty plea on the basis that the trial judge failed to inform the defendant of his right against self-incrimination. Although the trial court failed to specifically apprise the defendant of his right against self-incrimination, it confirmed that defense counsel had reviewed the defendant's Boykin rights with him, including the right against self-incrimination. Additionally, the waiver of rights form, signed by both the defendant and his attorney, listed all of the defendant's Boykin rights. Beneath each section the defendant wrote "yes" indicating he understood his rights. Neither Myers nor the case before us included evidence of a waiver of rights form or a defense attorney's advice and counsel on the privilege against self-incrimination. In the present case, the trial court determined that the Defendant was twenty-seven years of age, that he could read, write, and speak the English language, and that he was not under the influence of any drugs, alcohol, or other medications. It then informed the Defendant of the elements of the crime as well as the penalty range for the offense. The Defendant's right to trial by jury and right to confront his accusers were explained to him, and he indicated that he understood that by pleading guilty, he was giving up those rights. After ensuring that the Defendant had not been promised anything or threatened to enter his plea, the court heard the factual basis recited by the State and accepted the Defendant's plea. As in Myers, the court minutes in the present case indicate the Defendant was apprised of his right against self-incrimination, but the transcript does not. In fact, the transcript of the proceeding reveals the court did not inform the Defendant of his right against self-incrimination. As in Myers, there was no guilty plea form utilized in the taking of the Defendant's guilty plea, and there is no reference in the court minutes to other hearings prior to the taking of the plea at which the Defendant was informed of this right. Additionally, there is no indication that this information may have been provided to the Defendant by his attorney. Under the facts of this case, the Defendant's conviction must be vacated and the matter remanded to the trial court for further proceedings. The Defendant's conviction and sentence are hereby vacated, and this matter is remanded to the trial court for further proceedings. 1262 CONVICTION AND SENTENCE VACATED; REMANDED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619009/	792 S.W.2d 617 (1990) 303 Ark. 188 Lester BROOKS, Petitioner, v. STATE of Arkansas, Respondent. No. CR 90-9. Supreme Court of Arkansas. July 16, 1990. 618 Lester Brooks, pro se. PER CURIAM. The petitioner was convicted of two counts of theft of property and sentenced to six years for one charge and eight years for the other, to be served concurrently. The Arkansas Court of Appeals affirmed the conviction in an opinion not designated for publication. Brooks v. State, CA CR 88-290, 1989 WL 111707 (September 27, 1989). The petitioner now seeks permission to proceed in circuit court for post-conviction relief pursuant to Rule 37. The petitioner claims that he was denied effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner argues that his attorney was ineffective because he failed to investigate prior to trial and interview potential witnesses. The petitioner fails to say what witnesses or relevant facts the attorney could have found had he adequately investigated and prepared the case. Therefore, the allegations are conclusory and will not provide a basis for post-conviction relief. Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978). The petitioner's chief claim is that his counsel was ineffective for failing to object to two security guards' testimony of the value of the stolen merchandise because the information was taken from the price tag. The petitioner argues that had his attorney objected, the value of the property would have been excluded and the state would not have had sufficient proof to prove the felony theft of property. Ark. Code Ann. § 5-36-103(b)(2)(A) (1987) provides that theft of property is a Class C felony if the value of the property is less than $2,500 but more than $200; otherwise, theft of property is a class A misdemeanor. Ark.Code Ann. § 5-36-103(b)(4) (1987). A security guard from M.M. Cohn testified that the value of the shirts that the petitioner took from the store was $257.00. A security guard from Montgomery Ward testified that the value of the sheets taken from the store totalled $214.96. The price tags were admitted into evidence. In considering the petitioner's argument on appeal that there was insufficient evidence of felony theft of property, the court of appeals conceded that the value of the items was established by hearsay testimony; however, because there was no objection at trial to the testimony, the court considered the evidence as sufficient to establish that the value of the items was in excess of $200.00. It is necessary to show that the market value of the property stolen was more than the statutory minimum for a felony conviction. Hammond v. State, 232 Ark. 692, 340 S.W.2d 280 (1960), see also Ark.Code Ann. § 5-36-103(b) (1987). This court has found in a case similar to the case at bar that a security guard's testimony as to value, based on a price tag, is hearsay and is inadmissible to prove the value of the stolen property. Lee v. State, 264 Ark. 619 384, 571 S.W.2d 603 (1978). See also Doby v. State, 28 Ark.App. 23, 770 S.W.2d 666 (1989). It is necessary in a case like this to have someone testify who has actual knowledge of the property's fair market value. Since no such witness testified in this case, and the evidence of value was hearsay, we grant the petition so that the trial court can determine whether the petitioner's attorney was ineffective in failing to make a hearsay objection. The petitioner also claims that his counsel should have requested a jury instruction on misdemeanor theft. Since this was a case tried to the bench, jury instructions were not used so the allegation is without merit. Moreover, counsel did ask the court to reduce the theft counts to misdemeanors, but the motion was denied. The petitioner asks that he be furnished a copy of the transcript, record, files and docket sheets relating to his case to assist in preparation for the Rule 37 hearing. A petitioner is not entitled to a free copy of the trial record or other material on file with this court unless he demonstrates some reasonably compelling need for specific documentary evidence to support an allegation contained in a petition for postconviction relief. See Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985); see Chavez v. Sigler, 438 F.2d 890 (8th Cir.1971); see also United States v. Losing, 601 F.2d 351 (8th Cir.1979). Indigency alone does not entitle a petitioner to a transcript at public expense. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). As the petitioner here has cited no specific compelling reason for requiring a copy of the trial transcript, the motion is denied. It should be noted that when an appeal has been lodged in either this court or the Court of Appeals, the appeal transcript remains permanently on file with the Clerk of the Supreme Court. Counsel may check a transcript out through the Clerk's office for a period of time, and persons who are not attorneys may review a transcript in the Clerk's office and photocopy all or portions of it. An incarcerated person desiring a photocopy of pages from a transcript may write this court and request that the copy be mailed to the prison. All persons, including prisoners, must bear the cost of photocopying. Austin v. State, supra. The petitioner has also filed a motion asking that counsel be appointed for him. Since post-conviction proceedings under Rule 37 are civil in nature, there is no constitutional right to appointment of counsel to prepare a petition under Rule 37. Fretwell v. State, 290 Ark. 221, 718 S.W.2d 109 (1986). Rule 37.3 provides for the appointment of counsel by the circuit court where a hearing is granted and where the petitioner is unable to afford counsel. Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988). Petition granted; motions denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1920214/	471 Pa. 1 (1977) 369 A.2d 1164 JOHN G. BRYANT CO., INC. and Overhead Materials Handling, Inc. v. SLING TESTING AND REPAIR, INC. and William H. Crochiere, Appellants. Supreme Court of Pennsylvania. Argued April 10, 1975. Decided February 28, 1977. 4 Arthur L. Jenkins, Jr., Richard L. Grossman, Smith, Aker, Grossman, Hollinger & Jenkins, Norristown, for appellants. Thomas J. Burke, Fred B. Fromhold, Ardmore, for appellees. Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. OPINION OF THE COURT NIX, Justice. The instant appeal challenges the propriety of a Decree of the Chancellor granting a preliminary injunction to enforce a restrictive covenant in an employment agreement. William H. Crochiere, the individual appellant herein, accepted employment under an oral contract of employment with John G. Bryant Co., and Overhead Lifts Company in March 1963. The oral agreement of employment did not provide for a restrictive covenant not to compete. The two companies involved specialized in the field of selling and servicing of devices used in industrial 5 material lifting. This is a highly technical field requiring specialized skills and methods of doing business. In June 1963 John Bryant, who was in fact the sole proprietor of the two companies, entered into two written employment contracts with Crochiere under which Crochiere was appointed as a sales representative for both companies. Each agreement provided that upon the termination of the employment, Crochiere would not engage in a competitive business within the sales territory of the two companies for a period of three years following the termination of employment. The sales territory was specifically defined and essentially included Eastern Pennsylvania, South Jersey and the State of Delaware. Thereafter, the Bryant Company and Overhead Materials Company, incorporated under the respective names of John G. Bryant Company, Inc., and Overhead Materials Handling, Inc., these corporations being the instant appellees. Following the incorporation in August of 1968, new agreements were entered into between the newly formed corporations and Crochiere essentially incorporating the terms of the 1963 agreements of employment. On January 1, 1973, a third written agreement was entered into between the parties as a result of Crochiere's expressed desire to go into business on his own. The 1973 agreement provided that Crochiere would be permitted to form a company (to be designated Sling Testing and Repair, Inc.) and to solicit new business within the defined sales territory. However, Sling Testing and Repair, Inc. was prohibited from selling directly to established accounts of Bryant and Overhead Materials. The agreement specifically set forth the prohibited accounts which were customers of Bryant's and Overhead Materials' as of March 1, 1973. The agreement further provided that Crochiere would remain in the appellees' employ until February 28, 1973, at which time Bryant Company was to become the manufacturer's agent for 6 Crochiere's newly formed company and that Crochiere's company was to become sales agent for Overhead Materials. The term of this agreement was for a period of three years and was expressly binding on successors and assigns. Crochiere formed and incorporated a business under the name of Sling Testing and Repair, Inc. and had begun to engage in business. It is admitted on this record that Sling Testing made direct sales to accounts of appellees in violation of the 1973 agreement. Sling Testing is now defunct. However, Crochiere has undertaken a new corporate venture under the name of Sling Manufacturing, Inc., which engages in the same business as Sling Testing and Repair, Inc. The appellees filed an action in equity requesting, inter alia, a preliminary injunction to restrain Crochiere and Sling Testing from continuing direct sales to those accounts protected under the covenant. After hearing, a Decree granting the preliminary injunction was entered on January 15, 1975, and an appeal to this Court followed. The first question raised is the scope of our review in appeals from a Decree providing for a preliminary injunction enforcing an employee's covenant not to compete with his former employer and the essential prerequisites that must be shown to justify the issuance of the restraining order. This subject was discussed in our decision in Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 207 A.2d 768 (1965). There we observed: "The scope of our review on an appeal from a decree either granting or denying a preliminary injunction is to examine the record only to determine if there were any apparently reasonable grounds for the action of the court below. . . ." Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-44, 123 A.2d 626, 627 (1956). (Emphasis supplied). Summit Township v. Fennell, 392 Pa. 313, 140 A.2d 789 (1958). Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical 7 Corp., 410 Pa. 214, 215, 189 A.2d 180, 181 (1963). And the essential prerequisites for the issuance of a preliminary injunction are: first, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct. Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., supra. Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless the plaintiff's right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded: Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 159 A.2d 681 (1960), and Herman v. Dixon, 393 Pa. 33, 141 A.2d 576 (1958)." Id. at 181, 207 A.2d at 770. See also, Sidco Paper Company v. Aaron, 465 Pa. 586, 599-602, 351 A.2d 250, 257-58 (1976) and cases cited therein. Appellants argue that the record fails to establish irreparable harm. They note that appellees were only able to demonstrate actual damages in the amount of $427.00 in loss of commission and argue that this meager amount cannot possibly constitute irreparable harm. This reasoning however, ignores the nature of the violation herein involved. It is not the initial breach of a covenant which necessarily establishes the existence of irreparable harm but rather the threat of the unbridled continuation of the violation and the resultant incalculable damage to the former employer's business that constitutes the justification for equitable intervention. This misconception is also reflected in appellants' further contention that their continued sales to accounts on 8 the prohibited list would not cause irreparable harm because of their agreement to maintain a record of earnings generated by such sales. It is asserted that since any loss would be ascertainable, it would be compensable in damages. The covenant seeks to prevent more than just the sales that might result by the prohibited contact but also the covenant is designed to prevent a disturbance in the relationship that has been established between appellees and their accounts through prior dealings. It is the possible consequences of this unwarranted interference with customer relationships that is unascertainable and not capable of being fully compensated by money damages. It is for this reason we noted in Bettinger v. Carl Berke Associates, Inc., 455 Pa. 100, 103, 314 A.2d 296, 298 (1974), that where a covenant of this type meets the test of reasonableness, it is prima facie enforceable in equity. See also, Jacobson & Company v. International Environment Corp., 427 Pa. 439, 452, 235 A.2d 612, 620 (1967). In Sidco, supra, we again recognize the employer's right to protect, by a covenant not to compete, interests in customer relationships that have been acquired through the efforts of the employee. There, quoting from Professor Blake, we described the nature of the interest as follows: "In almost all commercial enterprises . . . contact with customers or clientele is a particularly sensitive aspect of the business. . . . In most businesses. . . as the size of the operation increases, selling and servicing activities must be at least in part decentralized and entrusted to employees whose financial interest in the business is limited to their compensation. The employer's sole or major contact with buyers is through these agents and the success or failure of the firm depends in part on their effectiveness.. . . [t]he possibility is present that the customer will regard, or come to regard, the attributes of the employee as more important in his business dealings 9 than any special qualities of the product or service of the employer, especially if the product is not greatly differentiated from others which are available. Thus, some customers may be persuaded, or even be very willing, to abandon the employer should the employee move to a competing organization or leave to set up a business of his own. . . . "The employer's point of view is that the company's clientele is an asset of value which has been acquired by virtue of effort and expenditures over a period of time, and which should be protected as a form of property. Certainly, the argument goes, the employee should have no equity in the custom which the business had developed before he was employed. Similarly, under traditional agency concepts, any new business or improvement in customer relations attributable to him during his employment is for the sole benefit of the principal. This is what he is being paid to do. When he leaves the company he should no more be permitted to try to divert to his own benefit the product of his employment than to abscond with the company's cashbox." Blake, Employee Agreements Not to Compete, 73 Harv.L.Rev. 625, 653-54 (1960). It is clear that the interest sought to be protected by the issuance of the preliminary injunction was that relationship which had been established on behalf of appellees' companies through the efforts of the former employee, Crochiere. This is clearly an interest which is incapable of adequate protection by monetary damages and the use of equitable relief is needed to avoid the threatened harm. Our cases have made clear that equitable enforcement of post-employment restraints may only be enforceable where they are incident to an employment relation (i.e., ancillary to) between the parties to the covenant, that the restrictions be reasonably necessary for 10 the protection of the employer and that the restrictions are reasonably limited in duration and geographic extent. See, e.g., Sidco Paper Company v. Aaron, supra; Kistler v. O'Brien, 464 Pa. 475, 347 A.2d 311 (1975); Jacobson & Company v. International Environment Corporation, 427 Pa. 439, 235 A.2d 612 (1967); Beneficial Finance Company of Lebanon v. Becker, 422 Pa. 531, 222 A.2d 873 (1966). Appellant Crochiere contends that the covenant not to compete contained in the 1963 agreement, was not ancillary to his employment because it was not executed simultaneously with the initial commencement of employment. Jacobson & Co. v. Int'l Environment Corp., supra; Beneficial Finance Co. of Lebanon v. Becker, supra. The challenge to the ancillary nature of the covenant is founded on the fact that Crochiere became an employee by virtue of an oral agreement, prior to the first written contract containing the covenant. While recognizing the problem that would be presented if we were called upon to consider the propriety of injunctive relief based upon the 1963 agreement, we need not reach this question since it is clear that there is adequate support for the enforcement of the covenant set forth in the 1973 agreement. In Maintenance Specialties v. Gottus, 455 Pa. 327, 330, 314 A.2d 279, 281 (1974), we had occasion to observe: "[A] restrictive covenant is enforceable if supported by new consideration, either in the form of an initial employment contract or a change in the conditions of employment. In the instant case, if appellee's employment status had changed beneficially when the parties reduced their agreement to writing, the law enunciated in [Jacobson & Co., Inc. v. International Environment Corp., supra] would dictate that the restrictive covenant, if reasonable, would be enforceable." 11 See also, Kistler v. O'Brien, supra; Capitol Bakers, Inc. v. Townsend, 426 Pa. 188, 231 A.2d 292 (1967); Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. 222, 206 A.2d 59 (1965); Pennsylvania Funds Corporation v. Vogel, 399 Pa. 1, 159 A.2d 472 (1960); Morgan's Home Equipment Corporation v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957); Srolowitz v. Roseman, 263 Pa. 588, 107 A. 322 (1919). Under the 1973 agreement, a new relationship, at Crochiere's request and for his benefit, was created.[1] This post-employment covenant was clearly ancillary to that agreement and the mutual promises set forth therein provided the supportive consideration for the enforcement of the covenant. To argue that there was no subsequent change in Crochiere's employment status in 1973 ignores the facts of this case. Appellant Crochiere also contends that the geographic area proscribed by the 1973 contract was overbroad and unreasonable. The contract contained a list of approximately 560 established customer accounts as existed on March 1, 1973, to which Sling Testing could not directly sell. Crochiere insists that some of the corporate customers are so large that the effective area of restriction "span[s] the entire nation." The Chancellor correctly decided that the geographic extent of the agreement was necessarily limited by the two prior written contracts which were incorporated into the 1973 agreement. Plunkett Chemical Company v. Reeve, 373 Pa. 513, 95 A.2d 925 (1953). We therefore agree with his finding that the covenant not to compete was applicable 12 only to the limited area of Southern New Jersey, Eastern Pennsylvania and the State of Delaware. We further note that the clear intention of the parties was to limit the covenant to the geographic area specified in the 1968 agreement. The scope of the covenant therefore was not enlarged, but was in fact reduced. Cf. Capitol Bakers, Inc. v. Townsend, supra. Additionally, where any account on the list specified a particular office of the company, the restriction applied only to the named office or plant and did not extend to the other branches of the large corporation. See Harris Calorific Co. v. Marra, 345 Pa. 464, 29 A.2d 64 (1942). In Harris Calorific Co., supra, the challenge to a restrictive covenant centered on a customers' list containing approximately 800 names of manufacturing companies. This Court held that a reasonable interpretation of the contractual agreement clearly required us to uphold the validity of the covenant. We stated: "We are here dealing with a situation where under the admitted facts the business or trade of both parties extended beyond state lines and where the restriction if enforced would leave open to the defendant all territory in this or other countries outside a radius of approximately two hundred miles and also leave defendant free to sell his own tips to many customers even within that area. It follows that the restriction as to area is limited. Broader restrictions have frequently been held enforceable." Supra at 468, 29 A.2d at 67 (citations omitted). The law is clear that the burden is on him who sets up unreasonableness as the basis of contractual illegality to show how and why it is unlawful. Jacobson & Co., Inc. v. International Environment Corp., supra; Seligman & Latz of Pittsburgh v. Vernillo, 382 Pa. 161, 114 A.2d 672 (1955); Maxwell v. Schaefer, 381 Pa. 13, 112 A.2d 69 (1955); Plunkett Chemical Co. v. Reeve, supra; 13 Harris Calorific Co. v. Marra, supra. Appellant has presented no evidence demonstrating to what extent the total alloy chain sling market has been restricted. Nor has he shown that he was unable to establish business relationships with companies not on the list although within the tri-state area. Thus, we find that appellant has failed to meet his burden of proving the 1973 covenant was unreasonable in territorial extent. In a related argument, appellant questions the three year term of the 1973 contract as constituting an unreasonable time period for prohibiting sales. In the absence of any evidence to the contrary, we have no doubt that the duration of time of this covenant is entirely reasonable. The nature of the transactions in the materials lifting industry involves continuous but infrequent customer contact. Crochiere had been appellees' principal sales representative for ten years, personally servicing the numerous accounts. Under these circumstances, three years was reasonably necessary for the protection of the employers to strengthen and reaffirm their business contacts. See, Jacobson & Co., Inc. v. International Environment Corp., supra, 427 Pa. at 453, 235 A.2d 612; Bettinger v. C. Berke Assoc., Inc., supra; Hayes v. Altman, 424 Pa. 23, 225 A.2d 670 (1967); Plunkett Chemical Co. v. Reeve, supra. There is nothing present in this cause to suggest the covenant was in any manner an imposition of undue hardship on the employee. Restatement, Contracts, § 516(f) (1932); Harris Calorific Co. v. Marra, supra. Similarly, we find no merit to the assertion that the restraint imposed on Crochiere was greater than required for the protection of appellees. It is not necessary that an employee receive specialized training before we enforce a restrictive covenant for the benefit of the employer. Girard Investment Co. v. Bello, 456 Pa. 220, 14 318 A.2d 718 (1974); Hayes v. Altman, supra; Morgan's Home Equipment Corp. v. Martucci, supra. Thus, we find the restrictive covenant reasonably limited as to duration of time and geographical extent and is prima facie enforceable. Jacobson & Co. v. International Environment Corp., supra, 427 Pa. at 452, 235 A. 2d 612; Barb-Lee Mobile Frame Co. v. Hoot, supra.[2] Mr. Crochiere has also advanced the concomitant argument that the entire 1973 contract is unenforceable because it is allegedly an unlawful and illegal restraint of trade. Appellant asserts that this was an agreement between two independent contractors to divide the market in an effort to prohibit competition. We cannot agree. It is clear that the 1973 contract simply established Sling Testing as the sales agent for appellees, allowing Sling Testing to receive a commission on certain sales. Appellant has presented no evidence to warrant the suggestion that a monopoly was intended to be created or that antitrust laws were violated. See Harris Calorific Co. v. Marra, supra. Finally, appellant asserts that the preliminary injunction was erroneously granted against Sling Manufacturing, Inc., arguing that Sling Manufacturing, Inc. was never personally served with process[3] or substituted as a party defendant[4] in this action, and further, that 15 the evidence failed to establish that Sling Manufacturing, Inc. was a successor in interest to any defendant in the action. Thus, appellant contends that the court below was without authority to enter the injunction against Sling Manufacturing, Inc. These contentions, however, have not been properly raised in this Court, and our review would therefore be inappropriate. The only party aggrieved by the injunction against Sling Manufacturing, Inc. is the corporate entity: Sling Manufacturing, Inc. However, that entity has not appealed to this Court from the Chancellor's decree. In addition, our decisions have long recognized that standing to raise an issue on appeal lies only in those parties who have a "direct interest in the particular question litigated, [which is] immediate and pecuniary, and not a remote consequence of the judgment." Keystone Raceway Corporation v. State Harness Racing Commission, 405 Pa. 1, 8, 173 A.2d 97, 100 (1961). See also Scientific Living, Inc. v. Hohensee, 440 Pa. 280, 270 A.2d 216 (1970); Ritter Finance Co., Inc. v. Myers, 401 Pa. 467, 165 A.2d 246 (1960); Elliot's Estate, 388 Pa. 321, 131 A.2d 357 (1957); Easton Transit Company's Petition, 270 Pa. 136, 112 A. 917 (1921); Pa.R.App.P. 501. While the individual appellant, William A. Crochiere, as an officer and stockholder of Sling Manufacturing, Inc., may be said to have an interest in litigation affecting the corporation, his participation in this action is in a personal capacity and on behalf of Sling Testing. Since the record does not disclose that Crochiere was in any way authorized by Sling Manufacturing, Inc. to appeal on its behalf, and further, since it has not been established that he is a party "aggrieved" in the legal sense by the restraint on Sling Manufacturing, Inc., he is without the requisite standing to raise the issues asserted. For this same reason, we note that although Sling Testing and Repair, Inc. was a named defendant in *16 this cause, and has appealed from the order below, it has not in any way been enjoined or restrained. The Chancellor's decree stated in pertinent part: "Upon the entry of said security the defendants William H. Crochiere and Sling Manufacturing, Inc. as successor to Sling Testing and Repair, Inc., are enjoined and restrained, until further order of this Court, from selling directly to accounts which as of March 1, 1973 were established accounts of plaintiffs as specifically listed in Annex "A" to the agreement between the parties dated January 1, 1973." (emphasis added). It is clear from a plain reading of the decree that while Sling Testing and Repair, Inc. is referred to for the purpose of defining the status of Sling Manufacturing, Inc., the former entity is not bound by or subject to the decree. Under these circumstances, Sling Testing is not a party aggrieved by the decree. In re: Conveyance of Land Belonging to Dubois, 461 Pa. 161, 335 A.2d 352 (1975); Louden Hill Farm, Inc. v. Milk Control Commission, 420 Pa. 548, 217 A.2d 735 (1966). Decree affirmed. Each party bear own cost. JONES, C.J., took no part in the consideration or decision in this case. POMEROY, J., concurs in the result. NOTES [1] As noted by the Chancellor, there was consideration in the 1973 agreement to support the promise not to compete: "Consideration for the 1973 agreement is found in the lessening of the restrictions of the 1968 covenants resulting in Crochiere and the defendant corporation now being permitted to compete in plaintiff's territory for accounts not claimed by plaintiffs in the agreement. Secondly, Crochiere's employment status changed radically in that the 1973 agreement provided for his forming the defendant corporation with agency ties to the plaintiffs' well established businesses." [2] Appellant, Mr. Crochiere asserts that the 1973 covenant is not binding on him as an individual, because that provision specifically refers to Sling Testing as the party prohibited from engaging in direct sales. However, we must reasonably and realistically construe the contractual agreement. The contract incorporated the 1963 and 1968 agreements, in which Mr. Crochiere, as an individual, was a party. Furthermore, the 1973 contract was signed twice by Mr. Crochiere, once as an individual and also as president of Sling Testing and Repair, Inc. This contention is meritless. Seligman & Latz of Pittsburgh, Inc. v. Vernillo, 382 Pa. 161, 114 A.2d 672 (1955). [3] See Pa.R.C.P. 1504. [4] See Pa.R.C.P. 2351-2375.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619072/	615 So. 2d 701 (1992) Theresa H. CARMAN, Appellant, v. Roy GILBERT, Basil Santana, and Nenet C. Heiser n/k/a Nenet M. Catle, Appellees. No. 92-00832. District Court of Appeal of Florida, Second District. November 25, 1992. Rehearing Denied January 8, 1993. 702 Richard C. Langford, St. Petersburg, for appellant. George M. Osborne, St. Petersburg, for appellees Santana and Catle. James C. Runyon, St. Petersburg, for appellee Gilbert. PER CURIAM. The appellant challenges orders of the trial court determining that she had renounced her interest in the estate of Charles K. Carman, Jr., and awarding attorney's fees to the appellees' attorneys. We affirm the order for renunciation of benefits, reverse the award of attorney's fees, and remand for further findings. RENUNCIATION OF BENEFITS Charles K. Carman, Jr., the appellant's brother, died on January 10, 1991, and his last will and testament was admitted to probate on January 28, 1991. Under the terms of the decedent's will, the appellant was to receive a one-half interest in their father's former residence and the balance of the estate was devised to four individuals, none of whom were related to the decedent. On April 5, 1991, the appellant filed a petition for revocation of probate, asserting that her brother, who was hospitalized at the time of execution of his will, lacked testamentary capacity and that the will was the product of undue influence on the part of the residual beneficiaries. The petition contained the following language: 703 6. Petitioner, Theresa H. Carman, disclaims any and all interest which she may have under the last will and testament of Charles K. Carman, Jr. dated December 21, 1990. On July 30, 1991, the appellant voluntarily dismissed the revocation proceeding. On September 11, 1991, the appellees filed a "Petition for Determination of Renunciation of Benefits" requesting the court to rule that the appellant had forfeited her rights in the estate by reason of paragraph 6 of her petition. After hearing, the trial court found the "renunciation was unconditioned in its terms and intent, and upon the facts herein cannot be withdrawn." The court then ordered that the appellant take nothing by the will and that her share of the estate be divided among the residual beneficiaries. It is a judicially created doctrine that a beneficiary who files a petition to revoke probate must renounce the benefits under the will. In re the Estate of Filion, 353 So. 2d 1180 (Fla. 2d DCA 1977). The doctrine requires the renunciation as a condition precedent to the remedy. 353 So.2d at 1181. The solidification of the doctrine in Florida can be traced back to Pournelle v. Baxter, 151 Fla. 32, 36, 9 So. 2d 162, 163 (1942), where the court said: "It appears to be well settled that a beneficiary under a will who desires to contest that will must first divest himself of any beneficial interest which he has under the will." Later, in Barnett National Bank of Jacksonville v. Murrey, 49 So. 2d 535, 537-38 (Fla. 1950), an action to set aside a trust, the court held that the required renunciation would not necessarily result in total forfeiture: By renouncing his right to the property as a condition to contesting the instrument the beneficiary does not thereby forfeit all right or interest regardless of the outcome of the litigation.... [H]e will be free to contest the validity of the instrument and thereafter to take under it, if, after all the evidence is in, he finds himself unable to prove that fraud, duress or some other vitiating influence was present... . Thus was born the doctrine of "qualified" renunciation, which was endorsed by this court in In re Estate of Harby, 269 So. 2d 433 (Fla. 2d DCA 1972), and which remains the law of this state. The appellant argues that the language of paragraph 6 of the petition, which facially appears to be an absolute renunciation, should be construed to be "qualified" or "conditional." Support for this position is found in In re Estate of Stein, 301 So. 2d 120 (Fla. 3d DCA 1974). In Stein, the renunciation language of the petition to revoke probate reads: "The Petitioners disclaim any and all interest which they have under the Last Will and Testament instrument dated September 8, 1972.' 301 So.2d at 121. In reversing the trial court's determination that this language constituted an "absolute" renunciation, the court stated: We hold that the trial judge committed error in finding that a qualified renunciation is only one that contains certain magic words. It is clear from reading appellant's [sic] petition to revoke probate of the will and the amendment thereto that the renunciation was put in solely for the purpose of complying with the statute and that no further purpose was intended. Therefore, the renunciation must be considered as qualified, and appellants are entitled to take under the will. 301 So.2d at 122. The Florida Supreme Court acknowledged early on that the pleading of renunciation is a matter of form rather than substance. See Medary v. Dalman, 69 So. 2d 888, 890 (Fla. 1954). We cannot formulate an example in which a qualified renunciation would have any legal effect whatsoever. If the revocation proceeding fails, the renunciation is of no effect and the petitioner takes under the will. If, on the other hand, the trial court revokes the probate of the will, then there is nothing left to renounce. In this context, the conclusion reached in Stein is a matter of common sense. Nonetheless, we are unable to follow Stein in this case. This 704 court made it clear in Harby that the pleading of a qualified renunciation was sufficient when we said: Appellant was a beneficiary under the will sought to be probated herein but apparently stood to gain more under a prior will. Appellant's petition for revocation of probate of the will was dismissed on the ground that appellant made a "qualified" but not an "absolute" renunciation ... of the benefits accruing to appellant under the will being attacked. We hold that the "qualified" renunciation was all that was necessary and, therefore, reverse.[1] 269 So.2d at 433. In fact, The Florida Bar's form, "Petition For Revocation Of Probate Of Will," contains the following sample paragraph: 4. Petitioner renounces any devise or interest that he may have under the purported will. This renunciation is made as a condition to contesting the will of the decedent and is a qualified renunciation under the case law of Florida. Continuing Legal Education, The Florida Bar, Litigation Under Florida Probate Code, § 3.33 (2d ed. 1991). Confronted with these circumstances, we have no alternative but to conclude that the appellant must be bound by her chosen words of "absolute" renunciation. Thus, we affirm the trial court's ruling in this regard. We are of the view that the issue presented in this case may be worthy of the consideration of the Florida Supreme Court. We therefore certify this decision to be in direct conflict with Stein. ATTORNEY'S FEES The appellant attacks the award of attorney's fees to the appellees' attorneys on two grounds. First, the appellant argues that a request for fees was not properly pled as required by Stockman v. Downs, 573 So. 2d 835 (Fla. 1991). Second, the appellant contends that the trial court, in making the award, did not comply with the procedural requirements of Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). It is the appellant's position that the appellees' request for fees must be found in their responses to the appellant's petition to revoke probate. We disagree. "A party seeking attorney's fees pursuant to statute or contract must plead entitlement to such fees." Stockman, 573 So.2d at 838. Such pleading must demonstrate: (a) the contractual or statutory basis for an award, (b) why the opposing party should be obligated to pay the award, and (c) the obligation of the moving party to pay his or her attorney. See Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 775, 124 So. 41 (1929). In this case, appellee Gilbert filed a letter pro se in response to the petition and made no reference to attorney's fees. Appellees Santana and Heiser filed a response through their attorney which contained a general request for fees "pursuant to ... the law of the State of Florida." Both of these pleadings fail the Stockman test. Here, however, we are dealing with a request for fees to be paid from the estate of Charles K. Carman, Jr., pursuant to section 733.106(3), Florida Statutes (1989). The prevailing attorneys did file a subsequent pleading entitled "Petition of Named Respondents For Attorneys' Fees" which factually meets the requirements of Stockman. Because the fees sought were predicated on having provided a benefit to the estate, which could encompass more than merely having defended the petition to revoke probate, and section 733.106 permits an attorney to make such an application at any time during the pendency of the estate, we determine that the petition provided timely notice of the request for fees to all affected parties. Nonetheless, the fee awards must be reversed. The principles of Rowe apply in probate proceedings. In re Estate of Platt, 586 So. 2d 328 (Fla. 1991). In making its award of attorney's fees, the trial court failed to make the findings required by 705 Rowe. Thus, we remand for the trial court to make the requisite findings and enter an order on attorney's fees consistent with its findings. Affirmed in part, reversed in part, and remanded. FRANK, A.C.J., and PARKER and PATTERSON, JJ., concur. NOTES [1] See also In re Estate of Gaspelin, 542 So. 2d 1023, 1025 (Fla. 2d DCA), review denied, 547 So. 2d 1209 (Fla. 1989).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619133/	615 So.2d 135 (1992) Randy Joe SARTIN v. STATE. CR-91-1032. Court of Criminal Appeals of Alabama. November 25, 1992. Rehearing Denied January 22, 1993. Certiorari Denied March 19, 1993. Kenneth Looney, Scottsboro, for appellant. James H. Evans, Atty. Gen., and Randall McNeill, Asst. Atty. Gen., for appellee. Alabama Supreme Court 1920676. 136 TAYLOR, Judge. The appellant, Randy Joe Sartin, was convicted of rape in the first degree, in violation of § 13A-6-61, Code of Alabama 1975, and of sodomy in the first degree, in violation of § 13A-6-63, Code of Alabama 1975. The appellant was sentenced to 99 years' imprisonment for each offense. The evidence tended to show that the appellant was a customer at The Barn, a nightclub in Scottsboro, Alabama, on July 7, 1990. He needed a ride home so a waitress who worked at the club offered to drive him part of the way when she went home. After he got in her car, he placed a knife on her neck, threatened to kill her and forced her to drive down a deserted road near the Tennessee River. He then pushed her out of the car and cut off her clothes and bra with the knife. The appellant forced the victim to perform oral sex on him. He then had sexual intercourse with her and performed oral sex on her. This continued for several hours. At one point, the appellant made the victim urinate in his mouth, and he tried to urinate in her mouth. After several hours, he had the victim drive him to an intersection, where he got out of the car. I The appellant argues that the circuit court erred in refusing to instruct the jury on the lesser included offense of sexual misconduct. The essential difference between rape in the first degree and sexual misconduct is that rape requires that the act be done "by forcible compulsion" and sexual misconduct requires that it be done "without ... consent." §§ 13A-6-61 and 13A-6-65, Code of Alabama 1975. To be guilty of sodomy in the first degree, the act must be "deviate sexual intercourse ... by forcible compulsion;" however, a person is guilty of sexual misconduct if he simply engages in "deviate sexual intercourse." §§ 13A-6-63 and 13A-6-65, Code of Alabama 1975. "An accused is entitled to have the jury charged on a lesser included offense only where there is a reasonable theory from the evidence to support the lesser offense." Myers v. State, 401 So.2d 288 (Ala.Cr.App. 1981). Here the evidence tended to show that the appellant held a knife to the victim's neck, cut her clothes off her body, slapped her, threatened to cut her heart out and her head off, and forced her to have sexual intercourse and oral sex with him. The offense of sexual misconduct specifically excludes those acts which are defined by §§ 13A-6-61 and 13A-6-63 as rape and sodomy. Section 13A-6-65, Code of Alabama 1975, provides: "(a) A person commits the crime of sexual misconduct if: "(1) Being a male, he engages in sexual intercourse with a female without her consent, under circumstances other than those covered by sections 13A-6-61 and 13A-6-62; or with her consent where consent was obtained by the use of any fraud or artifice; or "(2) Being a female, she engages in sexual intercourse with a male without his consent; or "(3) He or she engages in deviate sexual intercourse with another person under circumstances other than those covered by sections 13A-6-63 and 13A-6-64. Consent is no defense to a prosecution under this subdivision." The evidence tended to show that the appellant had sex with the victim by forcible compulsion. Therefore, the appellant's conduct was of the type prohibited by §§ 13A-6-61 and 13A-6-63; thus there was no reasonable theory to support giving an instruction on the lesser included offense of sexual misconduct. II The appellant argues that there was insufficient evidence to support the jury verdict. The appellant was convicted of rape in the first degree and of sodomy in the first degree. "A male commits the crime of rape in the first degree if ... [h]e engages in sexual intercourse with a female by forcible compulsion...." § 13A6-61, Code of Alabama 1975. "A person commits the crime of sodomy in the first degree if ... [h]e engages in deviate sexual 137 intercourse with another person by forcible compulsion...." § 13A-6-63, Code of Alabama 1975. The appellant contends that there was insufficient evidence of forcible compulsion. The testimony of the victim alone is sufficient to establish the element of forcible compulsion. Smelcher v. State, 520 So.2d 229 (Ala.Cr.App.1987). Because of the nature of these crimes, it is common that the only eyewitness is the victim. Here, the victim's testimony that the appellant held a knife to her neck and forced her to have both oral and vaginal sex with him was sufficient to support the jury's verdict. III The appellant also argues that the circuit court erred in receiving evidence concerning the appellant's escape from custody after his arrest on these charges, his "flight," and his recapture. "In a criminal prosecution the state may prove that the accused engaged in flight to avoid prosecution. This principle is based upon the theory that such is admissible as tending to show the accused's consciousness of guilt. The flight of the accused is admissible whether it occurred before or after his arrest. "The state is generally given wide latitude or freedom in proving things that occurred during the accused's flight. This is especially true of those acts of the accused which tend to show that the flight was impelled by his consciousness of guilt." C. Gamble, McElroy's Alabama Evidence § 190.01(1) (4th ed. 1991) (citations omitted). See also 2 Wigmore, Evidence § 276(4) (Chadbourn rev. 1979); Chandler v. State, 555 So.2d 1138 (Ala.Cr.App.1989). The circuit court did not err in receiving evidence of the appellant's escape from custody, his flight, and his recapture, following his arrest on these charges. IV The appellant argues that the circuit court erred in denying his motion for a change of venue. The appellant contends that publicity concerning his prior rape and sodomy convictions could have prejudiced the jury. One "way to ascertain whether adverse publicity may have biased the prospective jury is through the voir dire examination." Thomas v. State, 452 So.2d 899, 902 (Ala.Cr.App.1984). After voir dire examination, the court found that only 8 of the 58 veniremembers knew anything about the appellant, this case, or this victim. Of those eight, the court concluded that the judgment of four of them might have been affected by their knowledge. The court stated that it was prepared to grant challenges for cause as to those four jurors. The court did, in fact, grant challenges for cause as to six of the veniremembers. From the voir dire examination of the remaining veniremembers, it does not appear that any of them were prejudiced by pretrial publicity so that a change of venue was warranted. The circuit court did not err in denying the appellant's motion for change of venue. For the above stated reasons, the judgment in this cause is due to be affirmed. AFFIRMED. All the Judges concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619150/	248 N.W.2d 24 (1976) 197 Neb. 211 John J. MARFISI, Appellant, v. Alfred SPAGNOLA, Appellee. No. 40745. Supreme Court of Nebraska. December 15, 1976. 25 Smith & Hansen, Omaha, for appellant. Robert G. Spagnola, Omaha, for appellee. Heard before WHITE, C. J., BOSLAUGH, NEWTON and BRODKEY, JJ., and KUNS, Retired District Judge. WHITE, Chief Justice. This is an appeal in an equity action in which the plaintiff sought a decree from the District Court setting aside a purported bill of sale by which the plaintiff allegedly transferred all right, title, and interest in the Hollywood Spots-Lite Company to the defendant, requiring the defendant to return the assets and records of the company to the plaintiff, and restraining the defendant from doing business as the Hollywood Spots-Lite Company. The issue was tried before the District Court. On February 13, 1976, the District Court, in its decree, found that the bill of sale was a valid instrument and as such transferred all right, title, and interest to the assets, good will, trade name, patents, and patent rights held in connection with the operation of the Hollywood Spots-Lite Company, and dismissed the plaintiff's petition. The plaintiff appeals. We affirm the judgment of the District Court. In an appeal in an equity action, it is the duty of this court to try issues of fact de novo upon the record and to reach an independent conclusion thereon without reference to the findings of the District Court. Kolc v. Krystyniak, 196 Neb. 16, 241 N.W.2d 348 (1976); Campbell v. Buckler, 192 Neb. 336, 220 N.W.2d 248 (1974). However, when credible evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying and must have accepted one version of facts rather than the opposite. Pinney v. Hill, 191 Neb. 844, 218 N.W.2d 212 (1974); Parkhurst v. Parkhurst, 184 Neb. 687, 171 N.W.2d 243 (1969). The sole factual determination presented in this case is whether or not the plaintiff did knowingly and willfully execute a bill of sale, which operated to transfer all his right, title, and interest in the Hollywood Spots-Lite Company to the defendant. We find that he did. The plaintiff, in 1949, started up a small one-man business known as the Hollywood Spots-Lite Company. Prior to 1949, the plaintiff had been in the ballroom business in Omaha, Nebraska. The plaintiff's company, which operated out of a location in North Omaha, manufactured a revolving, global light fixture which cast off beams of colored light, and which was used primarily 26 by skating rinks and ballrooms. The plaintiff had developed this device over a period of 7 years and had received a patent on it. Around 1959, the defendant, the plaintiff's nephew by marriage, began helping the plaintiff in his business. Over the next 4 years, the defendant spent several evenings per week and many Saturdays assisting his uncle. On June 3, 1963, the plaintiff's wife of 40 years died of a sudden heart attack. The plaintiff was admitted to the hospital that day and remained there for 2 days. On June 4, 1963, the plaintiff while in the hospital, asked Samuel Caniglia, who was at that time a practicing attorney in Omaha, to prepare a bill of sale for the transfer of the Hollywood Spots-Lite Company to the defendant. Caniglia was also directed by the plaintiff to prepare a will at the same time. Caniglia testified that the plaintiff told him to omit any reference to his business in the drafting of the will because the bill of sale had taken care of this. The bill of sale recited a consideration of one dollar, and this sum was handed over by the defendant to the plaintiff's brother, who in turn handed the money to the plaintiff. Caniglia testified that both documents, the bill of sale and the will, were signed by the plaintiff in his presence and in the presence of two nurses acting as witnesses. The plaintiff testified that he signed the will on June 4, 1963, at the hospital, but denied having signed the bill of sale. In his pleadings, the plaintiff states that the signature on the bill of sale appears to be his, but that he recalls only the execution of the will. Several months after his wife's death and the execution of the bill of sale, the plaintiff accompanied the defendant to the North Side Bank in Omaha, and placed the defendant's signature on the company account. In 1964, the plaintiff helped the defendant move the business from its location in North Omaha to the defendant's basement. The defendant offered the plaintiff a key to his house at this time, but the plaintiff refused, not wanting to be involved if anything would be missing from the defendant's house. In 1965, the plaintiff wrote to the Danbury State Fair, a former business customer of the company. In that letter he stated: "* * * I would like to call your attention to a change that has been made in the management of the firm, about 20 months ago my wife passed away with a sudden heart attack and as I am now near 76 years of age it has been such a shock that I did not feel I could carry on the business. "For the past 8 years I have had one of my nephews helping me and he is a very good mechanic so I decided to turn the business over to him and he has done a very fine job of carrying on the same policy and service as I had done. "He has asked me to write you personally on account of our past contact * * ." In 1969, the plaintiff had another will made. Caniglia testified that the plaintiff again instructed him to make no reference to the business since it was the defendant's and had been transferred to him a long time ago. The plaintiff admitted on cross-examination that he has not personally constructed a "Spots-Lite" since the execution of the bill of sale in 1963. He also admitted that, since 1963, he has written no further checks on the company account. There was testimony that for 6 to 9 months after his wife's death, the plaintiff did not even come around or show up at the business location. In late 1964, the plaintiff purchased a 1965 automobile, placed title in Hollywood Spots-Lite Company, and licensed it each year. The defendant testified that after 1963, he continued to let the plaintiff deposit money received from company sales in the North Side Bank. He stated that he did this because the plaintiff enjoyed going to the bank, and it gave him something to do. The defendant testified that in 1971, the plaintiff told him that he no longer wanted to make deposits and that he then had the company business account transferred to the Center Bank due to its more convenient 27 location. The North Side Bank made out a cashier's check in the amount of $2,576.17 to the Hollywood Spots-Lite Company. This check was endorsed and deposited by the defendant. The defendant testified that he offered to have the plaintiff co-sign the new account, but that he refused, stating that he wanted no part of it; that it belonged to the defendant as the sole owner; and that he could do with it as he saw fit. In 1971, the defendant gave the plaintiff a check for $150 from the company account at the plaintiff's request. The plaintiff accepted the check, endorsed it, and cashed it. The plaintiff testified that he periodically received money from the company account around Christmas time, or on other occasions, an example of one being when he wanted to go on a fishing trip. The above-reviewed evidence supports a finding that the plaintiff did knowingly turn over his business to the defendant on June 4, 1963. In his brief, the plaintiff intimates that undue influence surrounds the execution of the bill of sale, pointing out the traumatic time in the plaintiff's life that the bill of sale was executedin a hospital, while the plaintiff was in shock and grief following the sudden death of his wife of 40 years, and the fact that the defendant was the plaintiff's nephew by marriage and they had worked closely together for a number of years. The plaintiff's turning over of his business to a nephew, who had worked with him and helped him in that business for the previous 4 years, is not an unnatural disposition. The plaintiff's attorney was present at the time the bill of sale was executed, and the plaintiff's attorney drafted the bill of sale. Even if the plaintiff's condition at the time of execution could be legitimately questioned, there remains the lengthy continued relationship between the parties following the execution of the bill of sale, which contained the numerous factors, mentioned previously, all indicative of an intention by the plaintiff for the defendant to have the business and an acknowledgment on the plaintiff's part of the defendant's ownership. The plaintiff was not moved to assert his claim against the defendant until many years after the bill of sale was executed. We note that a family argument between the parties seems to have precipitated the events which led to this lawsuit. It is true that the change in ownership between the parties was not as clean or clear-cut as might be expected between total strangers. Given, however, the facts that the parties were related, had worked together for a number of years, and that the plaintiff was quite elderly during this period, we do not find it unusual or inconsistent with the defendant's position that the plaintiff received minor sums periodically from the business account, was allowed to remain on the company account until 1971, was allowed to make company deposits, and was in other ways permitted to relate to the business. The judgment of the District Court is correct and is affirmed. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1620335/	294 S.W.2d 706 (1956) ASSOCIATED EMPLOYERS LLOYDS, Petitioners, v. Joe B. HOWARD, Respondent. No. A-5828. Supreme Court of Texas. October 24, 1956. Rehearing Denied November 21, 1956. 707 Cantey, Hanger, Johnson, Scarborough, & Gooch, Howard Barker and Ed Reichelt, Ft. Worth, Fred Minor, Denton, Black & Stayton, Austin, for petitioners. Boyd & Boyd, Denton, W. C. Culp, Gainesville, for respondent. CALVERT, Justice. Respondent, Joe B. Howard, sued petitioner, Associated Employers Lloyds, to set aside a compromise settlement agreement and a release, executed by him, in order that he might seek recovery of additional benefits under the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq. Trial was by the court without a jury and resulted in a judgment for respondent. The judgment was affirmed by the Court of Civil Appeals. 288 S.W. 2d 861. A chronological history of events leading up to the suit will make the issues more understandable. The events related will be those shown by undisputed evidence and those assumed from viewing the evidence in its light most favorable to respondent. On January 5, 1952, respondent, an employee of Kimbell-Diamond Milling Company, sustained an injury in the course of his employment. As a result of the injury respondent was forced to undergo an operation and was absent from his employment for approximately three and onehalf months. During his absence from his employment petitioner, Kimbell-Diamond's insurance carrier, paid him weekly compensation benefits in the sum of $24.75. On April 18, 1952, respondent returned to work. On April 22, 1952, an adjuster for petitioner, by representing that it was only a "release to go back to work", induced respondent, who could not read and could only write his name, to sign a Compromise Settlement Agreement by which he acknowledged payment of compensation benefits to that date in the sum of $321.75 and agreed to settle his claim for additional compensation benefits for the sum of $35. On April 25, 1952, the purported compromise settlement agreement was approved by the Industrial Accident Board. On April 30, 1952, respondent procured from the post office at Sanger, Texas, where he lived, an envelope from petitioner containing a check for $35 and a Compromise Settlement Receipt. The face of the check contained the statement that it was "In payment of compromise settlement agreement entered into and approved by the Industrial Accident Board." On the back of the check, above the line for the signature of the payee, was the following writing: "When Properly Endorsed This Draft Becomes and Constitutes a Receipt for Compensation Benefits Stated on the Face Hereof." The Compromise Settlement Receipt which was to be and was executed by respondent acknowledged receipt from petitioner of the sum of $35 "in full compromise settlement, accord and satisfaction of all compensation and claims for compensation" which he had or could have against petitioner by reason of injuries received by him. Respondent took the contents of the envelope to his bank 708 where he endorsed the check and had it cashed by an employee of the bank who signed the Compromise Settlement Receipt as a witness to respondent's signature. Shortly thereafter respondent, being physically unable to continue to do the heavy work to which he was assigned, left his employment permanently. On January 20, 1953 this suit was filed. Respondent seeks to set aside the Compromise Settlement Agreement and the Compromise Settlement Receipt on the ground that the same were procured by fraud. His contention with respect to the Compromise Settlement Agreement signed by him on April 22nd is that he was unable to read it and that he was induced to sign it by the false representation of petitioner's adjuster that it was only a "release to go back to work." His contention with respect to the Compromise Settlement Receipt executed by him at the time he received and cashed the check for $35 on April 30th is set out in a trial amendment as follows: "Plaintiff alleges that due to his unlettered condition and his illiterate condition Defendant was under a duty to inform him of what he was asked to sign, but that in furtherance of the fraud and as a part of said fraud previously perpetrated on plaintiff, defendant did not even send a covering letter or an explanatory letter, although defendant required said release to be witnessed, and had such letter been sent said witness could have explained to plaintiff what he was signing." Respondent's testimony did not support his pleading that the instruments he was asked to sign on April 30th were in furtherance of or a part of the fraud perpetrated on him on April 22nd. To the contrary he testified that at the time he received the check for $35 on April 30th he thought it was for back compensation due him from petitioner. He testified further that he did not know what the papers were that were attached to the check and made no inquiry with respect thereto. Assuming that the evidence is such as to support the presumed finding of the trial court that respondent's execution of the Compromise Settlement Agreement on April 22nd was procured by fraud the judgments of the courts below must, nevertheless, be reversed and judgment be rendered for petitioner. There is absolutely no evidence showing or tending to show any fraud on the part of petitioner or its agents or representatives in inducing respondent to accept and cash the check for $35 and execute the Compromise Settlement Receipt on April 30th. It is to be noted that respondent does not contend that any false representations were made to him by petitioner on April 30th to induce him to cash the check and execute the Compromise Settlement Receipt. On the contrary, his pleading is that the cashing of the check and execution of the Compromise Settlement Receipt were the result of the conduct of petitioner in preying on his ignorance by failing to send him a covering and explanatory letter. Moreover, his testimony is that he thought the check represented payment of past due compensation benefits. Petitioner was under no duty to send along an explanatory letter or to otherwise explain the contents of the Compromise Settlement Receipt and the notations on the check. Those instruments were plain, clear and unambiguous and if respondent endorsed the check and signed the receipt without knowing or ascertaining their contents that dereliction cannot be charged to petitioner. Respondent's illiteracy will not relieve him of the consequences of his contract. Indemnity Ins. Co. of North America v. W. L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553, 557. Inasmuch as respondent has wholly failed to plead or prove grounds for invalidating his release of April 30th the same is a bar to the recovery of additional compensation benefits and it is immaterial that he was induced by fraud to execute the Compromise Settlement Agreement. Traders & General Ins. Co. v. Bailey, 127 Tex. 322, 94 S.W.2d 134, 135; Texas Emp. Ins. Ass'n *709 v. McDaniel, Tex.Civ.App., 286 S.W.2d 465, 469-470, no writ history. Respondent contends in this Court that the grounds on which we have decided the case in favor of petitioner were not preserved by petitioner or presented in any point of error in the Court of Civil Appeals. Petitioner's first point of error in its brief in the Court of Civil Appeals was as follows: "The trial court erred in setting aside the compromise settlement agreement entered into by the defendant and plaintiff because there was no evidence of actionable fraud on the part of the defendant." Under this point of error petitioner argued that there was no evidence that it or its agents or representatives fraudulently induced respondent to execute the Compromise Settlement Agreement on April 22nd, and argued, also, that there was no evidence that it or its agents or representatives fraudulently induced the cashing of the check and the execution of the Compromise Settlement Receipt on April 30th. In support of the foregoing statement we quote from petitioner's brief in the Court of Civil Appeals, as follows: "It is the position of the defendant that the action taken by the plaintiff on April 30, 1952, was sufficient: first, to confirm the original action on his part in executing the compromise settlement agreement; second, to show he placed no reliance on the alleged representation of Mr. Coleman; and, third, to again release the defendant from any claim for compensation because of any injuries the plaintiff might have sustained on or about January 5, 1952"; and further: "What is more important, however, is the fact that nowhere in the record is there a scintilla of evidence that the plaintiff relied on anything that any representative of the defendant told him when he signed the $35.00 check and the compromise settlement receipt on April 30, 1952." It is true that in its brief in the Court of Civil Appeals petitioner had a point of error by which it asserted that "The trial court erred in failing to hold that plaintiff was estopped from denying the validity of the compromise settlement agreement admittedly entered into with defendant", and that the Court of Civil Appeals overruled that point. It appears not to be true, however, that petitioner waived any right it may have had to contend that the endorsement and cashing of the check and the execution of the Compromise Settlement Receipt on April 30th were not induced by fraud and that they operated to bar respondent's right to seek further compensation benefits. The judgments of the Court of Civil Appeals and trial court are reversed and judgment is here rendered that plaintiff take nothing by his suit.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619106/	915 F. Supp. 891 (1996) UNITED STATES of America, Plaintiff, v. D-1 Sandra LOPEZ a/k/a Tracy Blaisdell and D-2 Rene Cardona, Defendants. Criminal No. 95-50010. United States District Court, E.D. Michigan, Southern Division. January 31, 1996. 892 893 894 Daniel D. Bremer, Burton, MI, Gregory T. Gibbs, Flint, MI, Michael P. Manley, Manley & Manley, Flint, MI, for Rene Cardona. Joan E. Morgan, Detroit, MI, David I. Goldstein, Ann Arbor, MI, for Sandra Lopez. Nancy A. Abraham, U.S. Attorney's Office, Flint, MI, for the U.S. MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS AND FOR DISCOVERY, ADOPTING THE JULY 26, 1995 ORDER OF MAGISTRATE JUDGE GOLDMAN, AND GRANTING MOTION TO SEVER GADOLA, District Judge. Defendants, Sandra Lopez and Rene Cardona, have been charged in a two count 895 indictment with possession with the intent to distribute cocaine and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a), and conspiracy to distribute cocaine under 21 U.S.C. § 846. Presently before the court are several pretrial motions, including both defendants' motions to dismiss the indictment, motions for discovery, Cardona's objections to the July 26, 1995 Order of Magistrate Judge Goldman, and Cardona's motion to sever. This court will address these motions seriatim following a recitation of the relevant facts. I. Background On January 20, 1995 officers of the Flint Police Department received a tip from a man identifying himself as Derrick Campbell and stating that he was approached by a man named Gonzales (later identified as Rene Cardona) at the Hampton Inn in Flint on January 18, 1995. Campbell reported that Gonzales initially offered to sell him an eighth of a kilo of cocaine for $3,600, and then offered to front Campbell the cocaine when Campbell refused. Campbell also reported that Gonzales gave him his pager number and told him that he was staying in room 524 at the Hampton Inn. Also on January 20, 1995, Sergeant Mark Blough verified that a Claudio Gonzalez from Loraine, Ohio had been staying in room 524 but had moved to room 117. Later, Sergeant Blough observed a man (Rene Cardona) matching the physical description given by Campbell leave room 117. On January 21, 1995, officers observed Cardona and Lopez leave room 117 carrying a large black suitcase which they placed in the trunk of a cab. Sergeant Blough confirmed that Cardona and Lopez had checked out of the hotel. The officers followed the cab to a parking lot where the cab stopped and Cardona exited. Sergeant Alan McLeod approached Cardona, identified himself as a police officer and conducted a pat down search for weapons. Lopez was also checked for weapons and placed in a separate police car. Following some preliminary questions, Sergeant Blough asked Lopez if he could search her luggage. Lopez consented to a search of the gym bag placed in the front seat of the cab, but disclaimed ownership of the luggage in the trunk. Lopez then withdrew her consent to the search stating that the gym bag was not hers. Similarly, Cardona initially gave permission to search the luggage in the trunk but withdrew it before a search was conducted. Sergeant Blough brought his trained narcotics detection dog, Meeta, to the gym bag and the dog alerted positively. Meeta also alerted positively on the trunk area of the cab. The cab driver opened the trunk and Meeta alerted positively on the black suitcase contained therein. Because he apparently gave inconsistent and inaccurate information about his identity, Cardona was eventually arrested for giving false information to a police officer. Lopez was not arrested, but agreed to go to the police station to resolve the situation. The officers obtained a telephonic search warrant for the gym bag and the luggage and discovered approximately 266 grams of cocaine. Both defendants were arrested for possession with intent to distribute cocaine and were advised of their Miranda rights. Lopez agreed to be interviewed, but Cardona refused. On January 23, 1995 a state felony complaint was issued by the Honorable Nathaniel C. Perry, III, against both defendants for possession with intent to deliver cocaine and conspiracy to deliver cocaine. On February 21, 1995, upon motion by the Genesee County Prosecutor, the state court case against Lopez was dismissed without prejudice. On that same day, the state began its preliminary examination in the case against Cardona. At the conclusion of that testimony, Cardona made a motion to suppress evidence based upon a search and seizure violation which the court took under advisement. On March 21, 1995, when the hearing was continued, the prosecution moved to dismiss the case against Cardona on the ground that the United States Attorney wished to pursue these prosecutions. The district court remarked that the motion to dismiss would precede any ruling on the motion to suppress, but then launched into a lengthy discussion 896 questioning the propriety of the search. Both defendants were charged by a federal Grand Jury with possession with intent to distribute cocaine and conspiracy to distribute cocaine on March 17, 1995. II. Analysis A. Motions to Dismiss the Indictment The defendants raise three arguments in support of their motions to dismiss. First, the defendants contend that the indictment should be dismissed because it violates the Double Jeopardy Clause of the Fifth Amendment. The defendants submit that the "sham prosecution" exception to the dual sovereignty rule bars federal prosecution in this case. Second, the defendants assert that the indictment should be dismissed because the facts of this case demonstrate that the federal charges were brought vindictively. Third, defendant Cardona argues that dismissal is warranted because continuation of this federal prosecution violates the United States Attorney's Petite Policy.[1] The court will discuss these motions in turn. The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." This constitutional protection does not apply to prohibit a subsequent proceeding, however, until jeopardy "attaches" in a prior proceeding. Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 1062, 43 L. Ed. 2d 265 (1975). In defining the concept of "attachment," the Supreme Court has held that jeopardy attaches in the case of a jury trial when the jury is empaneled and sworn. Serfass, 420 U.S. at 388, 95 S.Ct. at 1062; Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963). In a non-jury trial, jeopardy attaches when the court begins to hear evidence. Serfass, 420 U.S. at 388, 95 S.Ct. at 1062. The ultimate question is whether the defendant has been "put to trial before the trier of facts, whether the trier be a jury or a judge." Id. at 391, 95 S.Ct. at 1064; United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 554, 27 L. Ed. 2d 543 (1971). In this regard, the Supreme Court has held that jeopardy does not attach to initial summary proceedings, even if evidence is presented, because absent a waiver of a jury trial, the trial judge has no authority to determine the guilt or innocence of the defendant. Serfass, 420 U.S. at 391-92, 95 S.Ct. at 1064. Consistent with this principle, the sixth circuit has held that jeopardy does not attach where a state court dismisses a criminal complaint based upon a finding that there was not probable cause to bind the defendant over for trial. United States v. Kendrick, 853 F.2d 492, 495-96 (6th Cir.1988) ("The constitutional provision against double jeopardy can have no application unless the prisoner has, therefore, been placed on trial."). Examination of the facts surrounding the dismissed state court prosecutions clearly demonstrates that jeopardy has not attached in the case of either defendant. Lopez was never "put to trial" or subjected to 897 any risk of a determination of guilt, as there were no state court proceedings against her. The criminal complaint against Lopez was dismissed even before the state prosecutor initiated a preliminary examination. The dismissal of that complaint was not an adjudication on the merits and jeopardy did not attach. Similarly, the case against Cardona was dismissed before jeopardy attached. Although Judge Perry conducted a preliminary examination and expressed his opinion that there was no probable cause to bind Cardona over for trial and that evidence should be suppressed, this was not an adjudication on the merits. At no point did Cardona waive his right to a jury trial or did Judge Perry have the authority to assess Cardona's guilt or innocence. Review of the transcripts of this summary proceeding clearly indicates that Cardona was never placed in jeopardy. Even if this court assumes that jeopardy attached to these state court proceedings, the dual sovereignty doctrine would defeat the defendant's double jeopardy argument. It is well established that double jeopardy does not restrict successive criminal prosecutions in state and federal court, even if the prosecutions are based on the same offenses. Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959). This dual sovereignty doctrine is premised in the notion that "an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each." United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 142, 67 L. Ed. 314 (1922). As such, subsequent state and federal prosecutions for the same criminal conduct are not proscribed by the double jeopardy clause, unless the facts of the subsequent prosecution place it within an exception to the dual sovereignty rule. An exception to the dual sovereignty doctrine which is relevant to this case is the "sham prosecution" exception. A majority of courts have interpreted this exception to encompass situations where federal prosecutors have manipulated state processes rendering the state prosecution a "sham" or cover for an otherwise barred federal prosecution, or where state prosecutors have done the same as a cover for an otherwise barred state prosecution. See e.g. United States v. Bernhardt, 831 F.2d 181, 182 (9th Cir.1987); United States v. Moore, 822 F.2d 35, 38 (8th Cir.1987); United States v. Aboumoussallem, 726 F.2d 906, 910 (2d Cir.1984); United States v. Aleman, 609 F.2d 298, 309 (7th Cir.1979). Defendants assert that the sham exception applies where a subsequent federal prosecution is merely an attempt to resurrect an otherwise barred state prosecution. They further contend that the federal indictment is a sham because "federal prosecutors showed no interest whatsoever in prosecuting Defendant, until after the state prosecution failed." This lack of interest by federal prosecutors, the defendants submit, is sufficient to demonstrate that the federal indictment is a sham. This court firmly disagrees with the defendants' interpretation of the applicable principles of law and with their characterization of the facts surrounding the prior state court criminal proceedings. The record amply shows that federal officials were involved in the investigation and prosecution of these defendants. Indeed, the officers who conducted the search of the luggage had obtained a federal search warrant. Federal prosecutors brought charges against Lopez immediately following the dismissal of the state court prosecution. Federal charges were brought against Cardona once discussions between the United States Attorney's Office and the Genesee County Prosecutor's Office concluded that the case would proceed more efficiently if both defendants were tried together. Significantly, the federal charges against both defendants were brought before any rulings by the state court. As the record indicates, the Grand Jury returned its indictment on March 17, 1995, four days before Judge Perry made any declarations in the preliminary examination of Cardona concerning the propriety of the search. The defendants simply cannot contend that the federal prosecution in this case is in any way a cover for an otherwise prohibited state court prosecution. The "sham prosecution" exception to 898 the dual sovereignty doctrine is not applicable in this case. In the alternative, defendants claim that the circumstances surrounding the institution of federal charges warrant dismissal as a vindictive prosecution. Defendants submit that these charges were presented after Judge Perry indicated his intention to dismiss the state court case. As such, defendants argue the federal prosecution was "motivated by the near certainty of dismissal or acquittal in state court" and designed "to accomplish an end run around" this result. As before, this court finds that the defendants mischaracterize the events surrounding the federal charges and overstate the applicability of the legal principles involved. A prosecution is vindictive and violates the Due Process Clause when the prosecutor acts to deter the exercise of a protected right of the defendant. United States v. Andrews, 633 F.2d 449, 453-55 (6th Cir.1980). To demonstrate vindictiveness, the defendant must show that the prosecutor has some "stake" in deterring the defendant's exercise of his rights and that the prosecutor's conduct is unreasonable. United States v. Anderson, 923 F.2d 450, 453-54 (6th Cir.1991). In the context of pretrial prosecutorial actions, a presumption of vindictiveness is not warranted. United States v. Goodwin, 457 U.S. 368, 381, 102 S. Ct. 2485, 2492, 73 L. Ed. 2d 74 (1982). As the Supreme Court noted in Goodwin: A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. As we made clear in Bordenkircher [v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978)], the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution. Goodwin, 457 U.S. at 382, 102 S.Ct. at 2493. Absent a presumption of vindictiveness in this context, the defendant must prove that the prosecutor's conduct was actually vindictive. Id. at 384, 102 S.Ct. at 2494. The defendants have failed to marshall any facts other than their timing argument to demonstrate that the United States Attorney's Office acted vindictively. The record simply discloses nothing to indicate that the motivation of federal officials in bringing charges against Lopez was to retaliate against or deter her exercise of rights. Until the filing of pretrial motions with this court, Lopez had not exercised any constitutional or procedural rights. With respect to Cardona, the record similarly does not substantiate his contention that the decision to prosecute was motivated by the fact that he moved to suppress evidence in the state court preliminary examination. To the contrary, this decision appears to have been based upon a mutual decision by state and federal prosecutors to conduct a joint trial of these defendants at the federal level. This is not contradicted by the comments of Judge Perry at Cardona's preliminary examination, indicating that he would have suppressed the certain evidence. Those statements, made four days after the indictment was returned, do not support Cardona's claim that the federal charges were instituted to retaliate against his exercise of a legal right. Finally, Cardona argues that his indictment should be dismissed because continuation of the federal prosecution violates the United States Department of Justice's Petite policy. See Petite v. United States, 361 U.S. 529, 80 S. Ct. 450, 4 L. Ed. 2d 490 (1960); Dept. of Justice Manual § 9-2.142 (precluding the initiation or continuation of a federal prosecution following a state prosecution ... unless there is a compelling federal interest supporting the dual or successive federal prosecution). Cardona concedes that this policy is not enforceable against the government, but submits that the government's failure to articulate a legitimate non-discriminatory reason for not following the policy in this case constitutes selective prosecution as discussed in United States v. Davis, 15 F.3d 902 (9th Cir.1994), and warrants dismissal. This court is not convinced that the Davis selective prosecution analysis applies to this situation. By its terms, Davis requires a prima facie showing "that the prosecution is based on an impermissible motive, 899 i.e. discriminatory purpose or intent." Davis, 15 F.3d at 910. Cardona has not even attempted to show that the decision to pursue federal charges in this case was motivated by a discriminatory purpose or intent of the type contemplated in Davis. Davis does not authorize this court or confer any rights upon a defendant to enforce the Petite policy against the federal government. It has long been clear that the Petite policy is not constitutionally mandated and that it confers no rights upon the accused. United States v. Frederick, 583 F.2d 273, 274 (6th Cir.1978). As such, defendants do not have standing to assert violations of this policy. United States v. Renfro, 620 F.2d 569, 573, n. 2 (6th Cir.), cert. denied, 449 U.S. 902, 101 S. Ct. 274, 66 L. Ed. 2d 133 (1980) (citing Petite v. United States, 361 U.S. 529, 80 S. Ct. 450, 4 L. Ed. 2d 490 (1960)). Cardona's Petite policy and selective prosecution arguments are without merit. B. Motions for Disclosure of Impeaching Information Defendants Lopez and Cardona have brought motions requesting the disclosure of impeachment information under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Because these motions are unnecessary, this court will deny them as moot. Brady and its progeny make it clear that the government's duty to produce evidence favorable to the defendant derives from the Due Process Clause. Accordingly, no order of the court is necessary to define or establish this duty. Defense counsel is advised to examine Federal Rule of Criminal Procedure 16 and the standing order of the Eastern District detailing the government's discovery and inspection obligations. By their terms neither Rule 16 nor the standing order of the Eastern District require, or even contemplate, intervention by this court into discovery matters, unless the government fails or refuses to comply with its obligations. The defendants have produced no evidence suggesting that the government has failed to comply fully with its discovery obligations. These motions will be denied. Defense counsel is admonished to consult the governing rules of practice before filing any motions in the future. C. Cardona's Objections to the July 26, 1995 Order of Magistrate Judge Goldman In addition to the motions discussed above, Cardona has filed an objection to the July 26, 1995 Order by Magistrate Judge Marc L. Goldman, denying Cardona's motion to suppress evidence found during the search of his luggage and motion to suppress statements. Cardona insists that evidence of the contraband discovered in his luggage should be suppressed because the police officers lacked probable cause to remove the luggage from the taxi in which the defendants travelled, and that certain statements made in response to questions about his name should be suppressed because they were elicited in the course of an "interrogation" and without Miranda warnings. Pursuant to 28 U.S.C. § 636(b)(1)(A), Fed. R.Civ.P. 72(a), and LR 72.1(d)(1) (E.D.Mich. Jan. 1, 1992), this court has reviewed Magistrate Judge Goldman's July 26, 1995 Order denying Cardona's motions to suppress, Cardona's objections to that order and the government's response to those objections. Upon review, this court finds that no part of the magistrate judge's order is clearly erroneous or contrary to law as required by Rule 72(a). Review of the relevant authorities confirms that, as passengers in the taxi, Cardona and Lopez did not enjoy a legitimate expectation of privacy in the trunk of the taxi. See United States v. Carter, 14 F.3d 1150, 1155 (6th Cir.1994) (concluding that the mere presence of a passenger's personal items in a vehicle does not give the passenger a legitimate expectation of privacy in that vehicle); United States v. French, 974 F.2d 687, 693 (6th Cir.1992) (holding that, under the "common authority" theory, voluntary consent to search by the owner and driver of a vehicle is effective as to the passengers of that vehicle). Accordingly, the magistrate judge did not err in denying the motion to suppress the evidence. 900 Similarly, the magistrate judge correctly concluded that the statements Cardona sought to suppress were not made during the course of an interrogation and, therefore, did not require Miranda warnings. Interrogation is defined as either express questioning or its equivalent which includes words or actions that the officers know or should know are reasonably likely to elicit an incriminating response from a suspect. Generally, questions posed "to secure the personal history data necessary to complete the booking process" do not fall within this definition and are exempt from the Miranda requirements. United States v. Broadus, 7 F.3d 460, 464 (6th Cir.1993). Cardona asserts, however, that he was entitled to Miranda warnings when the police questioned him about his identity following the arrest, because he had originally given the police incorrect information about his identity. Because any response to such questions would reveal that he had given false information or perpetuate his misrepresentations, Cardona asserts, these questions would inevitably elicit incriminating information.[2] Although Cardona's argument has an apparent logical appeal, this court is not convinced that the questions concerning Cardona's identity following his arrest were anything but "routine booking questions." See Broadus, 7 F.3d at 464. Accordingly, Miranda warnings were not required and the motion to suppress the statements was properly denied. The magistrate judge's order will be adopted. D. Cardona's Motion to Sever In his final motion, Cardona requests severance pursuant to Federal Rule of Criminal Procedure 14. Cardona contends that, because Lopez intends to offer evidence in her defense that Cardona beat and/or coerced her into committing criminal activity, Cardona will be severely prejudiced in the eyes of a jury. Cardona further submits that this prejudice will be magnified because Lopez may not testify, depriving Cardona of an opportunity to cross examine her on this element of her defense. Accordingly, Cardona concludes, relief from joinder is appropriate to preserve his right to a fair trial. Rule 8 evinces a strong federal policy favoring joint trials of defendants who are indicted together. Zafiro v. United States, 506 U.S. 534, 537, 113 S. Ct. 933, 937, 122 L. Ed. 2d 317 (1993); United States v. Warner, 971 F.2d 1189, 1196 (6th Cir.1992). Joint trials are favored because they "promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Zafiro, 506 U.S. at 537, 113 S.Ct. at 937. Despite this strong preference for joint trials, Rule 14 vests the district court with discretion to grant a severance or to "provide whatever other relief justice requires," if a defendant or the government is prejudiced by joinder. Fed.R.Crim.P. 14. The burden falls heavily upon the party seeking severance to demonstrate substantial prejudice from a joint trial. United States v. Williams, 711 F.2d 748, 751 (6th Cir.1983). Moreover, the district court's determination of prejudicial joinder questions is entitled to great deference. United States v. Breinig, 70 F.3d 850, 853 (6th Cir.1995). Severance under Rule 14 is limited to situations where the movant demonstrates that "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 538, 113 S.Ct. at 938; United States v. Odom, 13 F.3d 949, 958 (6th Cir.1994). A defendant is not entitled to severance simply because a separate trial may enhance his chances for acquittal. Warner, 971 F.2d at 1196. In this regard, the sixth circuit has consistently held that the assertion of different defenses by co-defendants does not alone require severance. United States v. Kendricks, 623 F.2d 1165, 1168 (6th Cir.1980); United States v. Vinson, 606 F.2d 149, 154 (6th Cir.1979). Moreover, the sixth circuit has recently reaffirmed the principle articulated in Zafiro that "a mutually antagonistic defense is not prejudicial per 901 se, and Rule 14 does not mandate severance on that ground as a matter of law." Breinig, 70 F.3d at 853 (6th Cir.1995). This case is on all fours with the recent sixth circuit holding in United States v. Breinig, 70 F.3d 850 (6th Cir.1995). In Breinig, the defendant, Norbert Breinig and his former wife, Joan Moore, were charged with tax evasion in violation of 26 U.S.C. § 7201. They were tried jointly and, at that trial, Moore presented evidence of diminished capacity to negate her mens rea. Moore's defense required the introduction of highly prejudicial evidence of Breinig's bad character, which would not have been admissible against Breinig were he tried alone. At the conclusion of the jury trial, Breinig was convicted and Moore was acquitted. The sixth circuit reversed Breinig's conviction and sentence, concluding that it was an abuse of discretion to deny Breinig's pretrial motion for severance, because "the jury's consideration of categorically inadmissible evidence was manifestly prejudicial and unfairly so." Id. at 853. In so holding, the court recognized that Breinig's situation presented an "exceptional case" and limited its holding accordingly. The court reaffirmed that the decision to deny severance rests within the discretion of the trial judge and that a mutually antagonistic defense is not prejudicial per se for purposes of Rule 14. Because the evidence of bad character substantiating Moore's defense would not have been admissible against Breinig under any theory of the Federal Rules of Evidence on a trial for tax evasion, the court found that Breinig carried the heavy burden of demonstrating that he suffered compelling and unfair prejudice as a result of the joint trial. Following the December 14, 1995 hearing on this motion, defendant Lopez volunteered to submit an affidavit outlining her proposed defense to the charges in the indictment. This court has conducted an in camera review of that affidavit and is satisfied that the theory of coercion and the testimony which Lopez intends to introduce will expose Cardona to the same degree of prejudice which justified the reversal in Breinig. Moreover, the proposed evidence of physical abuse and coercion would be inadmissible against Cardona if he were tried independently. See Breinig, 70 F.3d at ___. This court notes that less drastic measures, such as limiting instructions, will not suffice to cure this substantial risk of prejudice. Zafiro, 506 U.S. at 538, 113 S.Ct. at 938. Accordingly, Cardona's motion for severance under Rule 14 will be granted. ORDER Therefore, it is hereby ORDERED that the defendants' motions to dismiss the indictment are DENIED. IT IS FURTHER ORDERED that defendants' motions for disclosure of impeaching information are DENIED as moot. IT IS FURTHER ORDERED that the July 26, 1995 Order entered by Magistrate Judge Goldman, denying Cardona's motion to suppress statements and motion to suppress evidence, is AFFIRMED. IT IS FURTHER ORDERED that defendant Cardona's motion to sever trials is GRANTED. SO ORDERED. NOTES [1] In a supplemental motion, defendant Lopez claims that the indictment should be dismissed because both Lopez and Cardona were previously charged and convicted in Kent County Circuit Court for possession of less than 25 grams of cocaine, arising out of an offense occurring on November 4, 1993. Without further explanation of the significance of these events, the supplemental motion asserts that it incorporates by reference the arguments contained in the original motion. This court finds that in addition to a lack of clarity, Lopez' supplemental motion suffers from a lack of merit. It is well established that a conspiracy to commit a crime is separate and distinct from the underlying substantive offense. To this end, the Supreme Court has consistently held that the double jeopardy clause does not bar prosecution for conspiracy even where the acts supporting the conspiracy charge are based on conduct underlying the defendant's prior conviction. See United States v. Felix, 503 U.S. 378, 388, 112 S. Ct. 1377, 1384, 118 L. Ed. 2d 25 (1992); Garrett v. United States, 471 U.S. 773, 793, 105 S. Ct. 2407, 2418, 85 L. Ed. 2d 764 (1985); Pinkerton v. United States, 328 U.S. 640, 643, 66 S. Ct. 1180, 1181, 90 L. Ed. 1489 (1946). See also United States v. Medina, 992 F.2d 573, 588 (6th Cir.1993) (upholding a prosecution for conspiracy "even though one of the incidents relied upon in the indictment already had resulted in a separate prosecution and conviction."). Any double jeopardy argument that Lopez is attempting to make in her supplemental brief based upon these prior convictions must be rejected. [2] Testimony at the December 14, 1995 hearing on these motions revealed that Cardona was initially detained by the police officers on a charge of giving false information.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2588170/	205 P.3d 131 (2009) STATE v. FAIN. No. 82236-1. 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/1920274/	279 Md. 476 (1977) 369 A.2d 566 CONTINENTAL MASONRY CO., INC. v. VERDEL CONSTRUCTION COMPANY, INC. [No. 99, September Term, 1976.] Court of Appeals of Maryland. Decided February 24, 1977. Motion for reconsideration filed March 21, 1977. Denied April 4, 1977. The cause was argued before MURPHY, C.J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, J.J. Michael I. Gordon, with whom were Smullian & Gordon and Allen L. Fox on the brief, for appellant. M. Natalie McSherry, with whom were W. Hamilton Whiteford, Nevett Steele, Jr., Robert M. Wright and Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellee. DIGGES, J., delivered the opinion of the Court. The appellant in this action in assumpsit seeks a determination by this Court that a general contractor ordinarily has, unless a contrary intent is manifest in its subcontract agreements, an implied obligation to take all reasonable steps necessary to insure that each subcontractor is not delayed in its performance by actions of omission or commission on the part of other subcontractors. We do not decide this question, however, since we conclude that even if 478 such a claim may be maintained in this State,[1] the appellant's declaration fails to allege facts necessary to constitute it. Plaintiff-appellant Continental Masonry Co., Inc., sought damages in the Court of Common Pleas of Baltimore City for breach of an "implied obligation" alleged to be a part of its agreement to perform masonry subcontract work for defendant-appellee Verdel Construction Co., Inc., the general contractor for the Science-Allied Health Building at Essex Community College in Baltimore County. The trial court sustained Verdel's demurrer to the first count of Continental's third amended declaration, and entered final judgment against it pursuant to Maryland Rule 605. We granted certiorari on our own motion before the Court of Special Appeals considered the matter, and now affirm the trial court's sustaining of the demurrer as to that count without further leave to amend. Although the third amended declaration contains three counts, only the first is important here since the other two make no claim against the appellee. This first count in relevant part alleges: That on or about April 10, 1973, the Plaintiff, as subcontractor, entered into [an] Agreement with Defendant, Verdel Construction Company, Inc., to perform the masonry subcontract work required for the construction of the Science-Allied Health Building of the Essex Community College in Baltimore County, Maryland, at and for the price of 479 Three Hundred Thirty-Five Thousand, Two Hundred Dollars ($335,200.00). * * * That in considering [the] Contract, Plaintiff relied upon the progress schedule promulgated by Defendant, Verdel Construction Company, Inc., and the completion date of March 23, 1974, as set forth in Article 12.5 of the Supplementary Instructions to Bidders (Page 2) included in the documents heretofore filed in this action as a supplement to the Answer to Demand for Written Instruments requested by Defendant, Dietrich Brothers, Incorporated, with which said date and time period all subcontractors were to coordinate the time of their work. The Agreement ... of April 10, 1973, hereinabove referred to, provided that if the subcontractor failed to promptly and diligently prosecute his work, the general contractor, the Defendant, had the right to terminate the Contract and replace the subcontractor. That as work progressed, the structural steel subcontractors, The Prosser Company, Inc., and Dietrich Brothers, Incorporated, failed to perform adequately and the Defendant, Verdel Construction Company, Inc., failed to take action to require said subcontractors to perform adequately, as a result of which there was a general job slowdown, thereby greatly extending the period of construction. That as a result of said extended period of construction, Plaintiff was required to leave scaffolding in place and to incur severely increased costs for materials, labor and to pay interest on borrowed money to sustain the job, as a result of which the Plaintiff suffered a monetary loss well in excess of One Hundred Thousand Dollars ($100,000.00). That the Defendant owed to the Plaintiff an implied obligation not to delay the performance of 480 Plaintiff's work and was responsible to take all reasonable steps to insure the work proceeded without undue delay, but in violation of that implied obligation, Defendant did not take adequate or reasonable steps to insure that the work proceeded without delay and, in fact, permitted the same to be delayed for an extended period of time; that the failure to act on the part of the Defendant was the proximate cause of said delay, in that said Defendant permitted the structural steel subcontractors, who were under his control and direction, to delay in the performance of their responsibilities to properly man and supply the job in violation of the terms of their subcontracts, the said Contracts between Plaintiff and Defendant, Verdel Construction Company, Inc., not exonerating said Defendant in such instances. WHEREFORE, this suit is brought and Plaintiff claims Two Hundred Thousand Dollars ($200,000.00) damages. Maryland Rule 301 c requires that declarations contain "a clear statement of the facts necessary to constitute a cause of action ..." (emphasis supplied). In this State in order for a declaration in assumpsit to withstand a demurrer attack it must of necessity allege with certainty and definiteness facts showing a contractual obligation owed by the defendant to the plaintiff and a breach of that obligation by the defendant. In considering the sufficiency of the narr now before us, we should keep in mind that any ambiguity or uncertainty in the allegations is to be construed against the pleader, Carder v. Steiner, 225 Md. 271, 276, 170 A.2d 220, 222 (1961), and that "the necessary allegations of fact sufficient to state a cause of action ... in a simple factual situation vary from those in more complex factual situations and a form of declaration useful in the former situation may not be sufficient as a guide in preparing a declaration in the more complex case." Read Drug v. Colwill Constr., 250 Md. 406, 413, 243 A.2d 548, 553 (1968). Similarly, although made 481 in the context of a negligence action rather than with regard to one in assumpsit (a difference we regard as having no significance), the statement of Judge Singley for the Court in Myers v. Montgomery Ward & Co., 253 Md. 282, 292, 252 A.2d 855, 861 (1969) embraces this thought: [W]hile a general averment of negligence following a simple statement of the defendant's act or omission may be adequate in simple situations, in more complex situations where the breach of duty is not readily apparent, an averment of negligence will be regarded as a mere legal conclusion, since the general characterization of an act or omission as negligent or of a condition as unsafe is not usually a sufficient statement of the supposed ground of liability [(Emphasis added.) See Greenbelt v. Pr. George's Co., 248 Md. 350, 360, 237 A.2d 18, 24 (1968).] In applying these pleading principles to count one as last amended, it is clear to us that the skeletal factual allegations accompanied by nothing more than mere conclusions and general averments of a breach of a contractual duty do not suffice to establish Continental's somewhat unique and sophisticated claim. Assuming that the appellant alleged facts with sufficient certainty and definiteness to show the obligation owed by the appellee, the only statements which possibly could be construed to constitute a breach of that obligation are little more than very general argumentative conclusions. These statements that when other subcontractors "failed to perform adequately" the prime contractor "failed to take action to require said subcontractors to perform adequately ... [causing] a general job slowdown," and that "Defendant permitted the structural steel subcontractors, who were under his control and direction, to delay in the performance of their responsibilities to properly man and supply the job in violation of the terms of their subcontracts" as well as those accompanying them, do not provide facts sufficient to "[inform] the court, whose duty it is to declare the law *482 arising upon these facts, and to apprise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it." Read Drug v. Colwill Constr., supra at 414 [554], quoting Gent v. Cole, 38 Md. 110, 113 (1873) (Alvey, J.); see Fletcher v. Havre de Grace Co., 229 Md. 196, 200, 177 A.2d 908, 909-10 (1962). Because Continental's characterization of Verdel's conduct is nothing more than a conclusory expression of opinion without factual allegations to support it, the declaration is insufficient to state a valid cause of action, and the demurrer to the amended first count was properly sustained. We further conclude that since Continental has been afforded four opportunities to assert a valid claim against Verdel and has failed to do so, there was no abuse of the trial court's discretion in refusing to allow the appellant a fifth try. Hall v. Barlow Corporation, 255 Md. 28, 39, 255 A.2d 873, 878 (1969); Town of Somerset v. Board, 245 Md. 52, 61, 225 A.2d 294, 300 (1966); Blevins v. Mullan Contracting, 235 Md. 188, 194, 201 A.2d 348, 351-52 (1964). Judgment affirmed. Costs to be paid by appellant. NOTES [1] Although the decisions in this area are sparse, it appears fairly well settled that a general contractor is under an implied obligation not to delay or hinder, by his own actions, performance by a subcontractor. Cf. Griffith v. Scheungrab, 219 Md. 27, 34, 146 A.2d 864, 868 (1959). As to whether the general contractor's obligation extends so far as to make it responsible for delays to a subcontractor caused by other subcontractors, see, e.g., Norcross v. Wills, 198 N.Y. 336, 91 N.E. 803 (1910); Carroll Elec. Co. v. Irwin & Leighton, 80 Pa. Super. Ct. 438 (1923); Doyle & Russell, Inc. v. Welch Pile Driving Corp., 213 Va. 698, 194 S.E.2d 719 (1973); Edward E. Gillen Co. v. John H. Parker Co., 170 Wis. 264, 171 N.W. 61 (1919). See generally Annot., 16 A.L.R. 3d 1252 (1967).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619051/	248 N.W.2d 335 (1976) 197 Neb. 251 Janice ALEXANDER et al., Appellees, v. SCHOOL DISTRICT NUMBER 17 OF THURSTON COUNTY, Nebraska, etc., Appellants. Janice ALEXANDER, Appellee, v. The SCHOOL BOARD OF SCHOOL DISTRICT NUMBER 17 OF THURSTON COUNTY, Nebraska, etc., Appellant. Kay HAIGH, Appellee, v. The SCHOOL BOARD OF SCHOOL DISTRICT NUMBER 17 OF THURSTON COUNTY, Nebraska, etc., Appellant. Carter LEEKA, Appellee, v. The SCHOOL BOARD OF SCHOOL DISTRICT NUMBER 17 OF THURSTON COUNTY, Nebraska, etc., Appellant. Carlene MARKSBURY, Appellee, v. The SCHOOL BOARD OF SCHOOL DISTRICT NUMBER 17 OF THURSTON COUNTY, Nebraska, etc., Appellant. Helen THOMAS, Appellee, v. The SCHOOL BOARD OF SCHOOL DISTRICT NUMBER 17 OF THURSTON COUNTY, Nebraska, etc., Appellant. Gary WASHINGTON, Appellee, v. The SCHOOL BOARD OF SCHOOL DISTRICT NUMBER 17 OF THURSTON COUNTY, Nebraska, etc., Appellant. Nos. 40647-40653. Supreme Court of Nebraska. December 22, 1976. 336 Neil R. McCluhan, Kindig, Beebe, McCluhan, Rawlings & Nieland, Sioux City, Iowa, for appellants. 337 Theodore L. Kessner, of Crosby, Guensel, Davis, Kessner & Kuester, Lincoln, for appellees. Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ. BOSLAUGH, Justice. These cases which were consolidated for briefing and argument in this court, arise out of controversies concerning the termination of teachers' contracts. The plaintiffs are teachers who were employed by the defendant school district during the 1974-75 school year. On April 11, 1975, the board of education of the defendant voted not to renew the plaintiffs' contracts for the next year. Letters dated April 14, 1975, were mailed to each of the plaintiffs advising them that their contracts would not be renewed. Each of the plaintiffs requested a hearing pursuant to section 79-1254, R.S.Supp., 1975. The defendant then notified the plaintiffs that the hearings would be held on April 24, 1975. These notices also contained a statement of the reason or reasons why each contract was not being renewed and a list of the witnesses who would testify for the defendant at the hearing. On April 24, 1975, counsel representing the plaintiffs called the counsel for the defendant and requested that the hearing be "deferred to a later date." Counsel for the defendant agreed to this request and by agreement between counsel the hearing was eventually held on June 24, 1975. Case No. 40647 was filed June 18, 1975, to enjoin the defendant school district and the members of its board from holding a hearing and from interfering with the rights of the plaintiffs to continuing employment with the defendant district during the 1975-76 contract year. The trial court did not grant a temporary restraining order or a temporary injunction. At the hearing on June 24, 1975, the defendant's board heard evidence concerning each of the plaintiffs and then voted to terminate the contract of each plaintiff. The plaintiffs offered no evidence at the hearing. Case No. 40648 through case No. 40653 are proceedings in error commenced in the District Court to reverse and vacate the actions of the defendant's board terminating the contracts of the plaintiffs. The trial court found generally for the plaintiffs and reversed and vacated the decision of the board terminating the contract of each plaintiff. The trial court found specifically that the actions of the defendant's board were in violation of article 14 of Chapter 84 of the Nebraska statutes and void. The trial court made similar findings in case No. 40647 and restrained the defendants from interfering with the rights of the plaintiffs to continued employment by the defendant school district. The defendants have appealed. Section 79-1254, R.S.Supp., 1975, which is applicable to Class II and III districts, provides generally that the contract of a teacher who holds a certificate which is valid for a term of more than 1 year shall be deemed renewed until a majority of the members of the school board vote on or before May 15 to amend or terminate the contract. After a contract has been in force for 2 years a contract may not be terminated except for just cause. The secretary of the board is required to notify the teacher in writing not later than April 15 of any conditions of unsatisfactory performance or other conditions which the board considers may be just cause. The teacher has a right to request a hearing before the board within 5 days of the receipt of the notice. If requested, an evidentiary hearing is to be held within 10 days and the decision of the board shall be based upon the evidence produced at the hearing. The record shows substantial compliance with section 79-1254, R.S.Supp., 1975, by the defendant school district. The action on April 11, 1975, authorized the notice sent to each of the plaintiffs on April 14, 1975. Some of these notices failed to set out the conditions of unsatisfactory performance or other conditions which the statute now requires for nonprobationary teachers under contracts entered into after 338 February 26, 1975. Prior to the 1975 amendment to section 79-1254, R.R.S.1943, the contract of a teacher in a school district of this class could be terminated for any cause whatsoever, or for no cause at all. Schultz v. School Dist. of Dorchester, 192 Neb. 492, 222 N.W.2d 578. In any event, the letters sent to the plaintiffs after they had requested a hearing contained a statement of the reason or reasons why each contract was not being renewed and supplied any deficiency contained in the original notice and served as an amended or substituted notice. The hearing was not held until more than 60 days later and there was no prejudice to the plaintiffs resulting from any deficiency in the original notices. It is generally held that participation in the hearing waives any defect in the notice. Schrader v. Cameron Township School Dist., 221 Iowa 799, 266 N.W. 473; Van Peursem v. Consolidated Ind. School Dist., 240 Iowa 1100, 38 N.W.2d 615; Million v. Board of Education of City of Wichita, 181 Kan. 230, 310 P.2d 917; Board of Education of City of Eureka v. Jewett, 21 Cal. App. 64, 68 P.2d 404; Reagan v. Board of Directors, Republic School Dist. 309, 4 Wash.App. 279, 480 P.2d 807. The plaintiffs contend that the defendant board lost jurisdiction because the vote which effectively terminated the contracts did not take place until June 24, 1975, long after the May 15 date specified in section 79-1254, R.S.Supp., 1975. The record shows that the hearing was originally scheduled for April 24, 1975, but was continued at the request of plaintiffs' counsel. The June 24, 1975, date was eventually fixed by agreement of counsel. Under these circumstances the plaintiffs cannot complain that the action by the board of the defendant school district was of no effect because it took place after May 15, 1975. The problem with respect to the Public Meetings Act is complicated by the fact that the statute was changed between the date originally set for the hearing, April 24, 1975, and the date on which the hearing was held, June 24, 1975. Prior to May 27, 1975, the law provided that any formal action taken at a meeting other than while open to the attendance of the public shall be void. Former § 84-1405, R.R.S.1943. There was no provision concerning the effect of a failure to give public notice of the meeting. Laws of 1975, L.B. 325, effective May 27, 1975, repealed the old law and established new requirements. Section 84-1414(1), R.S. Supp., 1976, now provides that any formal action of a public body made or taken in violation of any of the provisions of the act shall be declared void by the District Court. A suit to void any final action shall be commenced within 1 year of the action. Section 84-1414(3), R.S.Supp., 1976, provides that any citizen may commence a suit for the purpose of requiring compliance with or preventing violations of the act. The petition filed in case No. 40647, the injunction case, was based on section 79-1254, R.S.Supp., 1975. The plaintiffs' theory of the case was that the defendant district had failed to comply with the terms of the continuing contract law and the plaintiffs were entitled to employment for the succeeding year. The petition was filed 6 days before the date set for the hearing, there was no mention or reference of any kind to the Public Meetings Act, and the petition was never amended. The prayer asked that the defendants be restrained and enjoined from holding any hearings and from interfering with the rights of the plaintiffs to continuing employment. Because there was no issue raised concerning the Public Meetings Act, none of the parties introduced any evidence concerning the matter of public notice other than the minutes or transcript. The petitions in error, filed in the other cases, similarly alleged a failure to comply with section 79-1254, R.S.Supp., 1975. There was no reference of any kind to the Public Meetings Act. It is a general rule that a judgment must respond to the pleadings. This court has held that a judgment based upon an 339 issue not pleaded is a nullity. See, Lincoln Nat. Bank v. Virgin, 36 Neb. 735, 55 N.W. 218; Branz v. Hylton, 130 Neb. 385, 265 N.W. 16; Hallgren v. Williams, 146 Neb. 525, 20 N.W.2d 499; Miller v. City of Scottsbluff, 155 Neb. 185, 50 N.W.2d 824; Muller Enterprises, Inc. v. Gerber, 178 Neb. 463, 133 N.W.2d 913. In Hardiman v. Dover, 111 N.H. 377, 284 A.2d 905, the New Hampshire court pointed out that an issue concerning an alleged violation of a public meeting law "must be promptly and properly raised below, especially where it does not appear that the alleged violation was obvious, intentional, or prejudicial." The plaintiffs, of course, had personal notice of the hearing on June 24, 1975. They attended, either in person or by counsel, and participated in the hearing. Although an objection was made to any proceedings in reference to continuing employment of the plaintiffs, no objection was made based upon a failure of the defendant to give "publicized notice" of the meeting as required by section 84-1411, R.S.Supp., 1976. The defendants argue that the plaintiffs waived any right to object to the lack of public notice of the meeting by appearing at the hearing and participating in it. We think this argument has merit. Any person who has notice of a meeting and attends the meeting should be required to object specifically to the lack of public notice at the meeting, or be held to have waived his right to object on that ground at a later date. A timely objection will permit the public body to remedy its mistake promptly and defer formal action until the required public notice can be given. See Carter v. City of Nashua, 113 N.H. 407, 308 A.2d 847. Since the plaintiffs had personal notice of the hearing and appeared and participated in the hearing, but made no objection concerning a lack of public notice, they cannot now complain that the defendant failed to comply with the Public Meetings Act. The same rule is applicable in the other cases. Participation in the hearing without objection to the lack of public notice waived any right to object at a later date to the lack of public notice. The judgment in each case is reversed and each cause is remanded with directions to dismiss the action. REVERSED AND REMANDED WITH DIRECTIONS.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/98281/	235 U.S. 121 (1914) MISSOURI PACIFIC RAILWAY COMPANY v. CITY OF OMAHA. No. 47. Supreme Court of United States. Argued November 4, 1914. Decided November 30, 1914. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 122 Mr. J.A.C. Kennedy, with whom Mr. B.P. Waggener, Mr. T.L. Philips and Mr. Martin L. Clardy were on the brief, for appellant. Mr. John A. Rine and Mr. William C. Lambert, with whom Mr. B.S. Baker and Mr. L.J. Te Poel were on the brief, for appellee. 126 MR. JUSTICE DAY delivered the opinion of the court. This suit was originally instituted in the Circuit Court of the United States for the District of Nebraska. Its object was to enjoin the City of Omaha from requiring the Missouri Pacific Railway Company, by virtue of a certain ordinance of the City, to construct a viaduct over and across its line of railway and along Dodge Street, in said City. The Circuit Court dismissed the bill and the decree was affirmed in the Circuit Court of Appeals, 197 Fed. Rep. 516. The ordinance, passed March 29, 1910, ordered the appellant to erect, construct and complete the viaduct and approaches on Dodge Street, of the width, height, strength, and of the material and manner of construction required by the City Engineer of the City of Omaha, and according to the plans and specifications prepared by him. The ordinance required that the company commence the erection and construction of the viaduct by May 1, 1910, and complete the same on or before January 1, 1911. Dodge Street is a well-known thoroughfare of the city for the passage of foot passengers and vehicles of all sorts, and it is also used by the tracks of a street railway company. There is testimony in the record tending to show that the viaduct as ordered to be constructed, is of a width and strength sufficient to sustain the street railway system theretofore laid upon Dodge Street, and crossing thereon the tracks of the railway company. It is contended, 127 and there is testimony tending to show that a viaduct sufficient to carry the ordinary traffic of the street, other than that of the street railroad, could be constructed at a cost of about $30,000, whereas the viaduct ordered to be built would cost approximately $80,000, the increase being largely due to the requirements of the street railway traffic. This requirement on the part of the City is alleged to be a confiscation of the property of the railway company to the extent of this increased cost, and a taking of its property without compensation for the benefit of another, and therefore without due process of law, contrary to the Fourteenth Amendment of the Constitution of the United States. That a railway company may be required by the State, or by a duly authorized municipality acting under its authority, to construct overhead crossings or viaducts at its own expense, and that the consequent cost to the company as a matter of law is damnum absque injuria, or deemed to be compensated by the public benefit which the company is supposed to share, is well settled by prior adjudications of this court. Chicago &c. Railroad v. Nebraska, 170 U.S. 57; Chicago &c. Railway v. Drainage Commissioners, 200 U.S. 561; Northern Pacific Railway v. Duluth, 208 U.S. 583; Cincinnati, Indianapolis & Western Railway v. Connersville, 218 U.S. 336; Chicago, Mil. & St. Paul Railway v. Minneapolis, 232 U.S. 430, 438. This is done in the exercise of the police power, and the means to be employed to promote the public safety are primarily in the judgment of the legislative branch of the government, to whose authority such matters are committed, and so long as the means have a substantial relation to the purpose to be accomplished, and there is no arbitrary interference with private rights, the courts cannot interfere with the exercise of the power by enjoining regulations made in the interest of public safety which the legislature has duly enacted. Chicago, Burlington & Quincy Railway 128 v. Drainage Commissioners, supra; McLean v. Arkansas, 211 U.S. 539; Atlantic Coast Line v. Goldsboro, 232 U.S. 548. That the City of Omaha had power to pass an ordinance of this character in execution of the authority conferred upon it by the legislature of the State, has been determined by the highest court of the State of Nebraska, considering Chapter 12-a, § 128, Compiled Statutes of Nebraska, 1991.[1]State v. Union Pacific Railroad Company, 143 N.W. Rep. 918. In that case the state Supreme Court declares (p. 919) the "power to require railway companies to construct above their tracks at street crossings 129 such viaducts `as may be deemed and declared by the mayor and council necessary for the safety and protection of the public' is in direct terms conferred by the legislature upon the City of Omaha." As this is a question of state law (Atlantic Coast Line v. Goldsboro, 232 U.S. 548), we need not dwell upon it further. Indeed, such authority seems to be admitted in the brief of appellant, and the argument is addressed to an alleged abuse of the power conferred. To maintain this position, it is first insisted that the construction of the viaduct in such manner as to carry the tracks of the street railway company will entail additional expense of about $50,000, over the cost of a viaduct providing only for the transportation of other kinds of traffic. It may be that it would be more fair and equitable to require the street railway company to share in the expense of the viaduct, and if the municipality had been authorized so to do by competent authority, it would have been a constitutional exercise of the police power to have made such division of expenses. Detroit &c. Railway v. Osborn, 189 U.S. 383, 389. But there is nothing in the statute requiring the municipality to divide the expense of such improvement among those responsible for the dangerous condition of the street crossing. Where a number of railroads have contributed to the condition which necessitates such improvement in the interest of public safety, it is not an unconstitutional exercise of authority, as this court has held, to require one of the companies interested to perform such work at its own expense. Chicago &c. Railroad Company v. Nebraska, 170 U.S. 57, 76. The broad authority to require any railroad company to make such improvement, in the interest of public safety, is conferred by the legislature upon the city. The safety of the travelling public is the primary consideration, and this is accomplished by the construction of the viaduct which is used by many people who travel across the viaduct every day. The public when being 130 transported by the street railway company was exposed to the dangers of a grade crossing, which it was within the authority of the State to authorize the municipality to discontinue. Under competent legislation the city has undertaken to do this. In placing the expense entirely upon the railroad company, whose locomotives and trains are principally responsible for the resulting danger to the public, we do not find such abuse of the recognized authority of the State as has justified the courts in some cases in enjoining the enforcement of state and municipal legislation. Examples of such arbitrary and oppressive action with which the courts may interfere are found in such cases as Yick Wo v. Hopkins, 118 U.S. 356, and Dobbins v. Los Angeles, 195 U.S. 223. The Constitution of the United States requiring that no State shall deprive any person of life, liberty or property without due process of law, has not undertaken to equalize all the inequalities which may result from the exercise of recognized state authority. In the exercise of the police power, it may happen, as it often does, that inequality results which the law is powerless to redress. It is only in those clear and unmistakable cases of abuse of legislative authority that the court is authorized, under sanction of the Federal Constitution, to enjoin the exercise of legislative power. As we have said, we do not think this case presents that character of abuse because the street railway company is not required to share in the expense of the erection of this viaduct. It is next urged that there is an abuse of authority shown which should justify an injunction against the enforcement of this ordinance, because a viaduct about 600 feet long would be sufficient to carry the traffic of Dodge Street over the railroad crossing, including the traffic of the street railway company, yet by this ordinance it is sought to compel the railroad company to construct a viaduct 810 feet long, the extension being made necessary 131 it is said for the purpose of carrying the Dodge Street traffic, including that of the street railway company, over a proposed boulevard, which the city might thereafter decide to lay out and establish across Dodge Street, which boulevard is alleged to be about 350 feet east of, and parallel to the line of the railroad. But there is testimony in the record tending to show that this extension of the original plan of the viaduct was for the purpose of making better grades in crossing thereon, and both courts below have rejected the contention of the railroad company that it was intended thereby to make a crossing for a proposed boulevard thereafter to be laid out. We are not prepared to disturb this conclusion of two courts upon the facts. It is next insisted that the ordinance in question is unconstitutional and void, because the railroad company is required to construct a viaduct along the south side of Dodge Street only, leaving some portion of the street, that upon the north side, still open to public traffic; in other words, the argument is that the viaduct would be made to carry a part of the traffic, still leaving some portion of the street open. We are unable to find force in this contention. The necessity of the viaduct, and the manner of its construction, were primarily vested in the discretion of the city authorities, and that they have found cause to leave some part of the street still open to traffic does not afford any reason why the principal part of the traffic, including that of the street railway company, might not in the interest of the public safety be required to be carried by the overhead structure. The local authorities are presumed to have knowledge of local conditions, and to have been induced by competent reasons to take the action which they did. That the City had authority to require a viaduct to be constructed over tracks without entirely closing the street was held by the Supreme Court of Nebraska. State v. Union Pacific Railroad Company, 143 N.W. Rep. supra. 132 It is further contended that the ordinance is void for uncertainty, and that the plans are confused and uncertain, and not sufficient to indicate the width, height, and manner of construction of the proposed viaduct, and that the plans and specifications existing are not capable of being followed in such manner as to comply with the ordinance. This contention was also rejected by the courts below upon the facts shown, and we are not prepared to disturb the conclusion that the plans and specifications were sufficient to enable the railroad company to know what it had to do, and to make the structure required of it. The last objection is that the railroad company was required to begin construction within twenty-six days after the passing of the ordinance, a time so short as to render it physically impossible to comply with the ordinance, and that upon lack of such compliance, the ordinance imposes penalties upon the railroad company, the collection of which penalties it is also sought to enjoin. It is to be noted that the enforcement of this ordinance has been entirely prevented by the injunction issued in this case, and kept in force since, and we have no doubt that should an attempt be made hereafter to require compliance with the terms of the ordinance as to the beginning of construction, they would be given a reasonable interpretation so as to permit of preparation before the beginning of the work, and if any oppression should result in this respect, there is no doubt as to the power of a court of equity to relieve the railroad company from the infliction of unwarranted penalties if it should turn out to be physically impossible, as the company insists, to comply with the ordinance in this respect. We find no error in the decree of the Circuit Court of Appeals affirming the decree of the Circuit Court, and it is accordingly Affirmed. NOTES [1] To require any railway company or companies owning or operating any railway track or tracks upon or across any public street or streets of the city, to erect, construct, reconstruct, complete and keep in repair any viaduct or viaducts upon or along such street or streets and over or under such track or tracks, including the approaches of such viaduct or viaducts as may be deemed and declared by the mayor and council necessary for the safety and protection of the public. . . . The width, height and strength of any such viaducts and approaches thereto, the material therefor, and the manner of construction thereof, shall be as required by the city engineer, and approved by the mayor and council. When two or more railroad companies own or operate separate lines of track to be crossed by any such viaduct, the proportion thereof, and the approaches thereto, to be constructed by each, or the cost to be borne by each, shall be determined by the mayor and council. It shall be the duty of any railroad company or companies upon being required as herein provided to erect, construct, reconstruct or repair any viaduct, to proceed within the time and in the manner required by the mayor and council to erect, construct, reconstruct or repair the same, and it shall be a misdemeanor for any railroad company or companies to fail, neglect or refuse to perform such duty, and upon conviction of any such company or companies shall be fined one hundred dollars, and each day such company or companies shall fail, neglect or refuse to perform such duty shall be deemed and held to be a separate and distinct offense, and in addition to the penalty herein provided any such company or companies shall be compelled by mandamus or other appropriate proceedings to erect, construct, reconstruct or repair any viaduct as may be required by ordinance as herein provided.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/98293/	235 U.S. 276 (1914) UNITED STATES v. WIGGER, ALIAS MOOSE JOHN. No. 349. Supreme Court of United States. Argued October 23, 1914. Decided November 30, 1914. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF ALASKA, FOURTH DIVISION. Mr. Assistant Attorney General Warren for the United States. There was no appearance or brief filed for defendant in error. MR. JUSTICE PITNEY delivered the opinion of the court. The grand jury returned an indictment against defendant in error containing three counts, charging him with as many different violations of the criminal laws in force 277 in Alaska. He demurred upon the ground (among others) that more than one crime was charged. The demurrer was sustained by the District Court upon this ground, and the case comes here under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246. The other grounds of the demurrer need not be further noticed. By § 43 of Title II of the act of Congress approved March 3, 1899 (Alaska Code of Criminal Procedure, c. 429, 30 Stat. 1253, 1290; Comp. Laws of Alaska, § 2152), it was declared that "the indictment must charge but one crime, and in one form only; except that where the crime may be committed by use of different means the indictment may allege the means in the alternative." And by § 90 of the same Code (30 Stat. 1294; Comp. Laws of Alaska, § 2199), the defendant was entitled to demur where more than one crime was charged. But by an act of the legislature of Alaska, approved April 26, 1913 (Sess. Laws, p. 65), it was enacted that § 43 of Title II of the act just mentioned should be amended to read (like § 1024, Rev. Stat.) as follows: "When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated." The sole question presented for decision is whether this act of the territorial legislature was efficacious to amend the act of Congress. In Summers v. United States, 231 U.S. 92, 105, the validity of the territorial act was assumed; but no question had been raised about it. Local powers of legislation were first conferred upon Alaska by act of Congress of August 24, 1912, c. 387, 37 278 Stat. 512, of which the most pertinent clauses are set forth in the margin.[1] The scope of the authority of the 279 territorial legislature, so far as the present question is concerned, depends especially upon the true intent and meaning of the clause contained in § 3, "that all the laws of the United States heretofore passed establishing the executive and judicial departments in Alaska shall continue in full force and effect until amended or repealed by Act of Congress." In order to determine what laws were by this language preserved from interference at the hands of the local legislature a brief review is necessary. The territory in question having been ceded to the United States by the Emperor of Russia by treaty of March 30, 1867 (15 Stat. 539), Congress in the following year extended to it certain of the laws of the United States, at the same time enacting that until otherwise provided violations of the Act should be prosecuted in any district court of the United States in California or Oregon or in the District Courts of Washington (Act of July 27, 1868, c. 273, 15 Stat. 240, 241, § 7). By act of May 17, 1884, entitled "An act providing a civil government for Alaska" (c. 53, 23 Stat. 24), the Territory was declared to constitute a civil and judicial district; the appointment of a governor with executive authority was provided for, and by the third section it was enacted: "There shall be, and hereby is, established a district court for said district, with the civil and criminal jurisdiction of district courts of the United States, and the civil and criminal jurisdiction of district courts of the United States exercising the jurisdiction of circuit courts, and such other jurisdiction, not inconsistent with this act, as may be established by law." Provision was made for the appointment of a district judge and four commissioners, whose 280 jurisdiction and powers were prescribed, and for appellate review. By the act of March 3, 1899, already mentioned (c. 429, 30 Stat. 1253), Congress provided an elaborate criminal code and code of criminal procedure, of which Title I contains 219 sections, defining crimes and offenses, and providing for their punishment, and Title II contains 481 sections, dealing for the most part with proceedings for the punishment and prevention of the crimes defined in Title I. By act of June 6, 1900, entitled "An Act Making further provision for a civil government for Alaska, and for other purposes" (c. 786, 31 Stat. 321), further provision was made, under Title I, for the establishment of the executive and judicial departments in the Territory.[1a] Title II contains 1048 sections, constituting a Code of Civil Procedure (31 Stat. 333-494; Comp. Laws of Alaska, 378-638). Title III contains 368 sections, and is called the Civil Code (31 Stat. 494-552; Comp. Laws of Alaska, 277-362). In the Code of Civil Procedure, a chapter (31 Stat. 442, §§ 698 et seq.) is devoted to the courts of justice, and contains sections prescribing their jurisdiction, powers, and authority. By an act approved March 3, 1909, c. 269, 35 Stat. 838, 839, § 2, the act of 1900 was amended with respect to the jurisdiction of the District Court. As already remarked, legislative power was first conferred upon the Territory by the act of August 24, 1912, c. 387, 37 Stat. 512. From the provision of this act 281 "That all the laws of the United States heretofore passed establishing the executive and judicial departments in Alaska shall continue in full force and effect until amended or repealed by Act of Congress" the District Court, after a review of the other legislation to which attention has been called, drew the conclusion that the laws concerning procedure in actions prosecuted in the name of the United States and by its officers are an essential and integral part of the laws establishing the executive and judicial departments, and that therefore these can be amended or repealed only by act of Congress. With this view we are unable to concur. It seems to us that by the language employed, Congress intended to draw a clear distinction between those laws by which the executive and judicial departments had been established in the Territory and those minor regulations that had to do with practice and procedure. Those enactments by which Congress had provided for the appointment of executive and judicial officers for the Territory and had marked out the powers, authority, and jurisdiction of each, and provided safeguards for their maintenance, are properly within the category of laws "establishing" those departments. These laws, and not those merely regulating the procedure, were by the act of 1912 continued in force until amended or repealed by act of Congress. The section respecting the form of indictments was open to amendment by the territorial legislature, and the act of April 26, 1913, passed for that purpose, is therefore valid. Judgment reversed, and the cause remanded for further proceedings in accordance with this opinion. MR. JUSTICE McREYNOLDS took no part in the consideration or decision of this case. NOTES [1] An Act to create a legislative assembly in the Territory of Alaska, to confer legislative power thereon, and for other purposes. * * * * * * * SEC. 3. CONSTITUTION AND LAWS OF UNITED STATES EXTENDED. That the Constitution of the United States, and all the laws thereof which are not locally inapplicable, shall have the same force and effect within the said Territory as elsewhere in the United States; that all the laws of the United States heretofore passed establishing the executive and judicial departments in Alaska shall continue in full force and effect until amended or repealed by Act of Congress; that except as herein provided all laws now in force in Alaska shall continue in full force and effect until altered, amended, or repealed by Congress or by the legislature: Provided, That the authority herein granted to the legislature to alter, amend, modify, and repeal laws in force in Alaska shall not extend to the customs, internal-revenue, postal, or other general laws of the United States or to the game, fish, and fur-seal laws and laws relating to fur-bearing animals of the United States applicable to Alaska, or to the laws of the United States providing for taxes on business and trade, or to the act entitled "An Act to provide for the construction and maintenance of roads, the establishment and maintenance of schools, and the care and support of insane persons in the District of Alaska, and for other purposes," approved January twenty-seventh, nineteen hundred and five, and the several Acts amendatory thereof: Provided further, That this provision shall not operate to prevent the legislature from imposing other and additional taxes or licenses. And the legislature shall pass no law depriving the judges and officers of the district court of Alaska of any authority, jurisdiction, or function exercised by like judges or officers of district courts of the United States. SEC. 4. THE LEGISLATURE. That the legislative power and authority of said Territory shall be vested in a legislature, which shall consist of a senate and a house of representatives. .. . * * * * * * * * SEC. 9. LEGISLATIVE POWER LIMITATIONS. The legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States, but no law shall be passed interfering with the primary disposal of the soil; [Here follow numerous express limitations none of which has reference to the present subject.] * * * * * * * * SEC. 20. LAWS SHALL BE SUBMITTED TO CONGRESS. That all laws passed by the Legislature of the Territory of Alaska shall be submitted to the Congress by the President of the United States, and, if disapproved by Congress, they shall be null and of no effect. [1a] "An Act Making further provision for a civil government for Alaska, and for other purposes. * * * * * * * * SEC. 4. There is hereby established a district court for the district, which shall be a court of general jurisdiction in civil, criminal, equity, and admiralty causes; and three district judges shall be appointed for the district, who shall, during their terms of office, reside in the divisions of the district to which they may be respectively assigned by the President. . . .	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/98294/	235 U.S. 282 (1914) UNITED STATES v. LEWIS. No. 380. Supreme Court of United States. Argued October 22, 1914. Decided November 30, 1914. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS. Mr. Assistant Attorney General Underwood for the United States. There was no appearance or brief filed for defendants in error. MR. JUSTICE PITNEY delivered the opinion of the court. Defendants in error were indicted for an alleged violation of the so-called Meat Inspection Law, which is a part of the "Act making Appropriations for the Department of Agriculture," etc., approved June 30, 1906, c. 3913, 34 Stat. pp. 669, 674, etc. Upon motion of 283 defendants the District Court quashed the indictment, basing its decision upon the construction of the statute, and the Government has brought this writ of error under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. p. 1246. The pertinent portions of the Meat Inspection Law are set forth in the margin.[1] 284 Pursuant to the authority conferred by the Act, the Secretary of Agriculture made certain rules and regulations, effective May 1, 1908, among which was the following: "An official establishment may ship from the said establishment to any other official establishment any meat 285 or meat food product which has been inspected and passed under these regulations without marking the same `Inspected and passed,' if such shipment be placed in a railroad 286 car which is sealed by an employe of the Bureau of Animal Industry, and provided that not less than 25 per cent of the contents of each car consists of meat or meat food products not marked `Inspected and passed.'" (Reg. 25, § 12, par. 1.) The indictment charged, in substance, that defendants knowingly and wrongfully altered, defaced, broke, and destroyed a certain government seal, then being upon a certain railroad freight car containing meat and meat products then under government supervision for inspection and offered for transportation in interstate commerce, the seal having been affixed to the car in accordance with the rules and regulations of the Secretary of Agriculture. The clauses of the statute upon which the indictment rests are those which declare "That no person, firm, or corporation, or officer, agent, or employe thereof, shall . . . knowingly or wrongfully alter, deface, or destroy . . . any of the marks, stamps, tags, labels, or other identification devices provided for in this Act, or in and as directed by the rules and regulations prescribed hereunder by the Secretary of Agriculture, on any carcasses, parts of carcasses, or the food product, or containers thereof, subject to the provisions of this Act," and "That any person, firm, or corporation, or any officer or agent of any such person, firm, or corporation, who shall violate any of the provisions of this Act shall be deemed guilty of a misdemeanor." The District Court construed the prohibition as relating alone to those engaged in the business of preparing meats for transportation, and the carrying or assisting in the carrying of such meats in interstate transportation. We are unable to discern any sufficient reason for giving to the language of the statute so limited an application. The plain object of the clause is to safeguard the food products in question against alteration or substitution, and thus enable the officials of the Government to systematize 287 and render effective the processes of inspection; an object that is interfered with if the tags or other identification devices are destroyed, whether they be destroyed by those engaged in the business or by others. Moreover, one of the other prohibitions of the Act is in terms limited to those engaged in the interstate commerce of meat or meat food products. It seems to us clear that the prohibition upon which the present indictment is founded has an effect as broad as its language, and applies to any and every "person, firm, or corporation, or officer, agent, or employe thereof." See United States v. Portale, decided November 2, 1914, ante, p. 27. Judgment reversed, and the cause remanded for further proceedings in accordance with this opinion. MR. JUSTICE McREYNOLDS took no part in the consideration or decision of this case. NOTES [1] That for the purpose of preventing the use in interstate or foreign commerce, as hereinafter provided, of meat and meat food products which are unsound, unhealthful, unwholesome, or otherwise unfit for human food, the Secretary of Agriculture . .. shall cause to be made by inspectors appointed for that purpose, as hereinafter provided, a post-mortem examination and inspection of the carcasses and parts thereof of all cattle, sheep, swine, and goats to be prepared for human consumption at any slaughtering, meat-canning, salting, packing, rendering, or similar establishment in any State, Territory, or the District of Columbia for transportation or sale as articles of interstate or foreign commerce; and the carcasses and parts thereof of all such animals found to be sound, healthful, wholesome, and fit for human food shall be marked, stamped, tagged, or labeled as "Inspected and passed;" and said inspectors shall label, mark, stamp, or tag as "Inspected and condemned," all carcasses and parts thereof of animals found to be unsound, unhealthful, unwholesome, or otherwise unfit for human food; and all carcasses and parts thereof thus inspected and condemned shall be destroyed for food purposes by the said establishment in the presence of an inspector, and the Secretary of Agriculture may remove inspectors from any such establishment which fails to so destroy any such condemned carcass or part thereof. . . . That for the purposes hereinbefore set forth the Secretary of Agriculture shall cause to be made by inspectors appointed for that purpose an examination and inspection of all meat food products prepared for interstate or foreign commerce in any slaughtering, meat-canning, salting, packing, rendering, or similar establishment, and for the purposes of any examination and inspection said inspectors shall have access at all times, by day or night, whether the establishment be operated or not, to every part of said establishment; and said inspectors shall mark, stamp, tag, or label as "Inspected and passed" all such products found to be sound, healthful, and wholesome, and which contain no dyes, chemicals, preservatives, or ingredients which render such meat or meat food products unsound, unhealthful, unwholesome, or unfit for human food; and said inspectors shall label, mark, stamp, or tag as "Inspected and condemned" all such products found unsound, unhealthful, and unwholesome, or which contain dyes, chemicals, preservatives, or ingredients which render such meat or meat food products unsound, unhealthful, unwholesome, or unfit for human food, and all such condemned meat food products shall be destroyed for food purposes, as hereinbefore provided, and the Secretary of Agriculture may remove inspectors from any establishment which fails to so destroy such condemned meat food products. * * * * * * * That when any meat or meat food product prepared for interstate or foreign commerce which has been inspected as hereinbefore provided and marked "Inspected and passed" shall be placed or packed in any can, pot, tin, canvas, or other receptacle or covering in any establishment where inspection under the provisions of this Act is maintained, the person, firm, or corporation preparing said product shall cause a label to be attached to said can, pot, tin, canvas, or other receptacle or covering, under the supervision of an inspector, which label shall state that the contents thereof have been "inspected and passed" under the provisions of this Act; and no inspection and examination of meat or meat food products deposited or inclosed in cans, tins, pots, canvas, or other receptacle or covering in any establishment where inspection under the provisions of this Act is maintained shall be deemed to be complete until such meat or meat food products have been sealed or inclosed in said can, tin, pot, canvas, or other receptacle or covering under the supervision of an inspector. . . . * * * * * * * * That on and after October first, nineteen hundred and six, no person, firm, or corporation shall transport or offer for transportation, and no carrier of interstate or foreign commerce shall transport or receive for transportation from one State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, or to any place under the jurisdiction of the United States, or to any foreign country, any carcasses or parts thereof, meat, or meat food products thereof which have not been inspected, examined, and marked as "inspected and passed," in accordance with the terms of this Act and with the rules and regulations prescribed by the Secretary of Agriculture. * * * * * * * * That no person, firm, or corporation, or officer, agent, or employe thereof, shall forge, counterfeit, simulate, or falsely represent, or shall without proper authority use, fail to use, or detach, or shall knowingly or wrongfully alter, deface, or destroy, or fail to deface or destroy, any of the marks, stamps, tags, labels, or other identification devices provided for in this Act, or in and as directed by the rules and regulations prescribed hereunder by the Secretary of Agriculture, on any carcasses, parts of carcasses, or the food product, or containers thereof, subject to the provisions of this Act, or any certificate in relation thereto, authorized or required by this Act or by the said rules and regulations of the Secretary of Agriculture. * * * * * * * * That no person, firm, or corporation engaged in the interstate commerce of meat or meat food products shall transport or offer for transportation, sell or offer to sell any such meat or meat food products in any State or Territory or in the District of Columbia or any place under the jurisdiction of the United States, other than in the State or Territory or in the District of Columbia or any place under the jurisdiction of the United States in which the slaughtering, packing, canning, rendering, or other similar establishment owned, leased, operated by said firm, person, or corporation is located unless and until said person, firm, or corporation shall have complied with all of the provisions of this Act. That any person, firm, or corporation, or any officer or agent of any such person, firm, or corporation, who shall violate any of the provisions of this Act shall be deemed guilty of a misdemeanor and shall be punished on conviction thereof by a fine of not exceeding ten thousand dollars or imprisonment for a period not more than two years, or by both such fine and imprisonment, in the discretion of the court. . . . . . . Said Secretary of Agriculture shall, from time to time, make such rules and regulations as are necessary for the efficient execution of the provisions of this Act, and all inspections and examinations made under this Act shall be such and made in such manner as described in the rules and regulations prescribed by said Secretary of Agriculture not inconsistent with the provisions of this Act.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/1619101/	38 So. 3d 344 (2010) Sylvia CONNOR v. FAMILY DOLLAR STORE. No. 2010-C-0959. Supreme Court of Louisiana. June 25, 2010. Denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619102/	615 So. 2d 349 (1993) Kimuel LEE v. Mrs. Scott WOODLEY. No. CA 91 0303. Court of Appeal of Louisiana, First Circuit. January 21, 1993. Rehearing Denied February 22, 1993. Writ Denied April 30, 1993. 350 Kimuel Lee, Beverly Hills, CA, for plaintiff-appellant. Terri A. Maderson Collins, and Lawrence Durant, Baton Rouge, for defendant-appellee. BEFORE LOTTINGER, C.J., and EDWARDS, FOIL, GONZALES and FOGG, JJ. GONZALES, Judge. This is an appeal of sanctions imposed upon plaintiff-appellant, Kimuel Lee, for filing a lawsuit against defendant, Mrs. Scott Woodley. The Baton Rouge City Court found, on Mrs. Woodley's motion, that Lee had filed his defamation suit against her merely as harassment. Mr. Lee contends that the motion for sanctions was heard without prior notice and violated his due process rights under the Louisiana and United States Constitutions. He also contends that the sanctions were improperly imposed before he had completed discovery in the case. FACTS On July 17, 1989, Mr. Lee and Mrs. Woodley were both present at a Broadmoor Residents Association meeting. Mr. Lee was attempting to have a lot in Broadmoor Subdivision rezoned from residential to buffer zone, in order to open a law office at his house. Mrs. Woodley opposed the rezoning request. Mr. Lee was making a presentation at the meeting in support of his zoning request when he was asked by Mrs. Woodley why he had purchased the house. Mr. Lee answered that he purchased the house to live there. At that time, Mr. Lee alleges, Mrs. Woodley said "ha" or "hunnh." The next day, July 18, 1989, Mr. Lee filed suit against Mrs. Woodley in the Baton Rouge City Court, alleging that Mrs. Woodley defamed him at the meeting. Mrs. Woodley filed dilatory and peremptory exceptions and a motion to strike on September 1, 1989. Thereafter, the trial court ruled in favor of the exception of vagueness and in favor of the motion to strike. The exception of no cause of action was denied. On June 15, 1990, interrogatories and a request for production of documents were propounded to Mr. Lee. On August 1, 1990, a motion for sanctions under Louisiana Code of Civil Procedure article 863 was filed on behalf of Mrs. Woodley and on August 13, 1990, a motion to compel was filed. The motion for sanctions and motion to compel were served personally on Mr. Lee and subpoenas were issued which were served personally on Mr. Lee. On August 14, 1990, Mr. Lee filed a motion to dismiss the suit with prejudice. The court granted the motion to dismiss, then vacated the granting of dismissal. The hearing on the motion for sanctions and the motion to compel was scheduled for September 12, 1990. Mrs. Woodley and her counsel appeared at the hearing. Mr. Lee neither appeared nor requested a continuance. A bench warrant was issued for Mr. Lee. Subsequently the bench warrant was recalled at the request of Mr. Lee's counsel, and the matter was rescheduled for hearing on November 21, 1990. After the hearing, Mrs. Woodley's motion for sanctions was granted. The judgment provides that Mr. Lee pay $7,614.15 as attorney's fees, plus interest and costs. Mr. Lee filed a suspensive appeal. 351 THE MERITS OF THE DEFAMATION ACTION The elements necessary to recover for defamation are: (1) defamatory words, (2) communicated to some person other than the one defamed, (3) falsity, (4) malice, actual or implied, and (5) resulting injury. Palmer v. Fireman's Fund Insurance Company, 395 So. 2d 396, 397 (La. App. 1st Cir.), writ denied 400 So. 2d 668 (1981); Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So. 2d 196, 198 (La.1980). Further, in making a determination whether the words are defamatory, the court must look not only to the words themselves but also to the context and circumstances in which they were used. Palmer v. Fireman's Fund Insurance Company, 395 So. 2d 396, 397. First we must determine whether the colloquial expression "hunnh" or "ha" is a factual assertion or a statement of opinion. It is clear from the law that truth is a defense to defamatory statements. One would ask the following question: is the expression "hunnh" or "ha" susceptible of being truthful or not? Obviously the answer is that it can be neither truthful nor untruthful. It is simply not an expression of fact. It is obvious that "hunnh" or "ha" was an expression of opinion by Mrs. Woodley casting some doubt as to either the accuracy or the truthfulness of the statements made by Mr. Lee. Opinions may be harsh or critical or even abusive yet still not subject the speaker or writer to civil liability. In this connection, a publication is not libelous merely because the opinion may be expressed in terms of strong invectives, profanity, or sarcastic language. Even though an opinion may contain factual assertions, there is no defamation if the speaker discloses the facts underlying his opinion. A simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is ... The question whether a statement has a defamatory meaning does not even arise unless the statement is an assertion or implication of fact.. Whether a statement constitutes fact or opinion is a question of law for the court to decide. 53 C.J.S. Libel and Slander § 12 (citations omitted). [T]he First Amendment freedoms as defined by the New York Times-Gertz series of decisions afford, at the very least, a defense against defamation actions for expressions of opinion about matters of public concern made without knowing or reckless falsity. Mashburn v. Collin, 355 So. 2d 879, 885 (La. 1977). Mere harsh opinion does not result in liability for defamation. Foote v. Sarafyan, 432 So. 2d 877, 880 (La.App. 4th Cir.1982), writ denied 440 So. 2d 736 and 737 (1983). Even assuming it is a factual utterance concerning his credibility, its most logical explanation is that it means she does not believe him rather than an expression that his statement is not truthful. If freedom of speech has any meaning, it means every citizen has the unfettered right to express their own disbelief in the statements of others. When called upon by the court to explain how such a statement could be defamatory, it was only necessary for Mr. Lee to advance oral argument convincing the judge that there was some legal support for his legal concept. The expression in question, under the circumstances given, does not constitute defamatory words because the consequences of the falsity of the statement "to live in and I did live there" do not expose Mr. Lee to contempt, hatred, ridicule or disgrace. See Morris v. Gray & Company, Inc., 378 So. 2d 1081, 1082 (La. App. 4th Cir. 1979). It is the duty of an attorney before he files a lawsuit to ensure that there is some existing theory of law or a reasonable extension of an existing theory of law that would support his cause of action. Louisiana Code of Civil Procedure article 863 provides in part: B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him 352 that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. The source for La.C.C.P. art. 863 is Federal Rule of Civil Procedure 11. Diesel Driving Academy, Inc. v. Ferrier, 563 So. 2d 898, 902 (La.App.2d Cir.1990) provides us with an analysis of the requirements of article 863: Rule 11 and Art. 863 require the attorney or litigant who signs a pleading to make an objectively reasonable inquiry into the facts and the law. Subjective good faith does not satisfy the duty of reasonable inquiry. Thomas v. Capital Sec. Services, 836 F.2d 866, 873-874 (5th Cir. 1988). Among the factors to be considered in determining whether a reasonable factual inquiry has been made are the time available to the signer for investigation; the extent of the attorney's reliance on his client for the factual support for the document; the feasibility of a prefiling investigation; whether the signing attorney accepted the case from another member of the bar or forwarding attorney; the complexity of the factual and legal issues; and the extent to which development of the factual circumstances underlying the claim requires discovery. Mr. Lee is himself the plaintiff in this case. He does not have to rely on factual assertions by some client. Mr. Lee has yet to advance any legal theory which would support his claim that the use of the colloquial expression "hunnh" or "ha" constitutes a defamatory remark. Mr. Lee had a year to file suit. He chose to file suit the day after the meeting, apparently in order to intimidate Mrs. Woodley so that she would discontinue her opposition to his rezoning request. This motive becomes more clear upon reading a letter Mr. Lee wrote to Mrs. Woodley's attorney, which states in part: In desire of economic settlement, you might consider the following ideas. I am complaining of a defamation. If your client would be willing to renounce the defamation, or otherwise correct her position at the upcoming zoning hearings, I would be willing to consider dismissal, provided such disposition has ethical foundation. I want the zoning approved. I consider the failure last year to be a direct result of your client. She might remedy that harm by argueing (sic) as a proponent on July 23, 1990 ... The record reveals that on July 24, 1990, Mr. Lee filed a second defamation suit. This second suit, filed against Ms. Jane Patterson, alleges that Ms. Patterson defamed Mr. Lee at a Broadmoor Residents Association meeting. This petition alleges that remarks made by Mrs. Patterson caused Mr. Lee the loss of a law office. It appears from the record that Mr. Lee used his position as a lawyer to intimidate anyone who spoke out at a public meeting against his rezoning request. Upon thorough review of the record, we find no abuse of discretion in the trial court's finding that the defamation suit filed against Mrs. Woodley by Mr. Lee was filed for an improper purpose and because it knowingly contains allegations not well grounded in fact on the issue of damages (discussed later). THE SANCTIONS HEARING AND RIGHT TO DISCOVERY Under La.C.C.P. art. 863, no sanctions can be imposed unless there is a hearing first. However, the article does not provide a requirement for notice of such a hearing to be given. Obviously, due process requires that reasonable notice be given. Such notice would not have to be in writing, and actual notice would be sufficient. Mr. Lee was given actual notice of the hearing by virtue of the subpoena. Mr. Lee argues that he did not have adequate 353 notice of the hearing, however, he filed an opposition to the motion for sanctions and a counter motion for sanctions against Mrs. Woodley. Also, Mr. Lee appeared at the hearing, with counsel, Mr. John Tyler, although Mr. Tyler left to go to another hearing and Mr. Lee then represented himself at the hearing. The only possible purpose for Mr. Tyler's presence was in connection with the sanction hearing, since Mr. Tyler was not counsel of record for the case on the merits. In this representation, he never urged to the trial court a lack of adequate notice of the hearing, nor did he request a continuance or additional time to prepare for the hearing. All of these facts undermine the claim by Mr. Lee on appeal that he did not have adequate notice of the hearing. There is no merit to Mr. Lee's argument that he was not given adequate notice of the sanctions hearing. As to Mr. Lee's argument that he was not given a full hearing, a review of the record shows that after a lengthy hearing, Mr. Lee was cut off only on cross-examination of the details of the bill for legal services. No harm accrued to him, because the judge only considered the bill as evidence supporting his finding that $125 per hour was a reasonable rate of attorney fees. Under La.C.C.P. art. 1635, contemporaneous objection must be made to procedural matters before the court and the grounds for the objection must be given. Mr. Lee failed to object at the hearing that he was not given a full hearing, and we cannot supply for Mr. Lee an objection he did not make. Mr. Lee also contends that he had not completed his discovery at the time of the sanctions hearing. Discovery on the merits of his case has nothing to do with sanctions. Mr. Lee had sixteen months from the date he filed suit to the date of the sanctions hearing to conduct any desired discovery on this case. The issue of damages obviously is a fact question on which witnesses could be called and testimony could be given. However, in view of the fact that the record reveals that Mr. Lee suffered no damages, because he was a full time law student at the time he filed suit, and had no ongoing law practice, it is difficult to see how he could put on evidence to show that there were, in fact, some damages. Mr. Lee's answers to Mrs. Woodley's interrogatories reveal the following: During the years 1988 and 1989 plaintiff was a full time student and was not employed on a remunerative basis. There was no expense accounts or per them during 1988, 1989 or 1990. Plaintiff received no wages or compensation during 1988 or 1989 because there was no employment. When an amount of gross income is determined for the current 1990 year, such information will be forwarded forthwith. Plaintiff was a dependent in 1988 and 1989. Knowing full well the truth of the above admissions, Mr. Lee alleged in his first amended petition: Loss of profits from Law Office which was scheduled to open at profit basis of $10,000 per month, for twelve months until zoning can be approved. In his memo supporting his counter-motion for sanctions against Mrs. Woodley, Mr. Lee argues: By a well calculated omission and a bold misstatement of a material fact counsel seeks to mislead this Court into imposing sanctions against plaintiff. Such a ploy deserves the stiffest sanctions. The omission of the fact that Mr. Lee was not a practicing attorney at the time and his bold misstatement of loss of income likewise deserve serious consideration. This Court is in the position of deciding whether to allow an attorney to use his profession to intimidate an individual who chooses to speak out at a public meeting, or to stand up for the individual. We believe individual rights must be protected under the circumstances of this case. Paraphrasing Robert F. Kennedy: "If not us, who? If not now, when?" We, as the appellate court, are the right court at the right time. For the foregoing reasons, we affirm. Mr. Lee is cast with costs. AFFIRMED. LOTTINGER, C.J., dissents and assigns written reasons. 354 FOIL, J., dissents for the reasons assigned by LOTTINGER, C.J. LOTTINGER, Chief Judge, dissenting. I dissent for the following reasons. Mr. Lee argues in brief, and the record discloses, that once this matter came on for hearing, the court improperly limited his ability to challenge Mrs. Woodley's contention that the attorneys' fees allegedly due were in fact due. The sanctions at issue were imposed pursuant to La.Code Civ.P. article 863, which article requires, in paragraph (E), that the court allow the party being sanctioned to "present any evidence or argument relevant to the issue of imposition of the sanction." This provision is more comprehensive than Federal Rule Civ.P. rule 11, which does not specify the type of hearing to be accorded a sanctioned party. Therefore, federal decisions in the area are of no help in light of Louisiana's explicit provision for the type of hearing to be held. The judge hearing the motion told Lee that he could not traverse the attorneys' fee bills (improperly admitted into evidence over Lee's hearsay objection) forming the measure of Mrs. Woodley's claimed sanctions because of a time problem. Apparently, the court had other matters scheduled for which other litigants were present and waiting. This prompted the judge to cut short the hearing. The trial court improperly curtailed Lee's right to present his evidence, or to challenge Mrs. Woodley's evidence, under the above-quoted provision because it did not follow section (E)'s directive regarding the scope of the hearing that must be held. Rather than cut short the hearing, the judge should have rescheduled the matter until a time when the court's calendar would have permitted the type of full hearing called for in article 863. Sanctions are penal in nature, and should be imposed hesitatingly and only after a full hearing into the necessity for them, their nature, and their measure. Even assuming arguendo the majority is correct in affirming the imposition of sanctions, the majority falls into even more grievous error when it affirms the $7,614.15 judgment in attorney's fees for an allegedly frivolous lawsuit. The evidence in this record is scanty almost to the point of non-existence as to the issue of attorney's fees. This is particularly so when the only evidence as to attorney's fees is a copy of the bill from Mrs. Woodley's attorney for service rendered. When this bill was introduced, it was properly objected to as hearsay, an objection which should have been sustained, but was erroneously overruled by the trial court.[1] The majority compounds the trial court's error when it agrees with this exorbitant attorney's fees award. Absent any evidence of the time spent by counsel in defending this case, the court is left with the bare record from which to make an award. Regretfully, the majority is totally off-base and abuses the discretion of this court in concluding that an attorney's fee of $7,614.15 is justified. Therefore, I dissent. GONZALES, Judge. ON DENIAL OF REHEARING. The record is not scanty as to evidence of the amount of attorney time and the effort needed to refute this suit, frivolous or otherwise. The trial court was fully capable of determining a reasonable fee for the legal activities in opposition to Mr. Lee's lawsuit. As to the adequacy of the hearing, the only time the trial judge cut Mr. Lee off was when he was redundantly going 355 into the attorney fees bill item by item. We quote from the transcript, at page 35: Q. And at that time did she tell you that she was going to bill you for thatgoing to that meeting? A. I assumed she would. Yes. No, she did not tell me specifically, I assumed she would. I did take out her time from 5:00 until about 7:00 P.M.; five til'. Q. You just said a moment ago, that in the beginning Mrs. Maderson told you she would see whether or not there would be expenses, and is [sic] not true that this is actually only the second hour that she spent on the case? A. I'm sure it is, but what Iwhat went down was MR. DURANT: Your Honor, I'm going to object on the grounds of relevancy of this. The only question now is does she owe that money, did she receive that bill, and is she obligated to pay it. That's the only question. THE COURT: That's right. I'mI willI'm inclined, Mr. Lee, to be patient and listen to what you have to say, but I'm also inclined to agree with Mr. Durant. This is the bill; and the question is whether or not that's the bill and whether or not she [sic] obligated to pay it. MR. LEE: Yes, Your Honor, that's true, however THE COURT: All right. Mr. Lee, I'm not going to sit here and let you go down each item that's listed on those three pages of charges. No harm accrued from this because full consideration of the amount of attorney fees was given by this court. The courts have determined the attorney fees must be actually incurred and reasonable. Anschutz Petroleum Marketing Corp. v. E.W. Saybolt & Co., 112 F.R.D. 355, 359 (S.D.N.Y.1986). The majority of the federal courts in interpreting Federal Rule 11 have adopted the abuse of discretion rule. See Thomas v. Capital Security Services, Inc., 836 F.2d 866, 873 (5th Cir.1988). We did not rely entirely on the bill for attorney fees, but drew on our experience on the bench and our knowledge of the difficulty of defending a defamation action in making our determination that the sanctions awarded were not an abuse of discretion. NOTES [1] During original oral argument Mrs. Woodley's counsel in answer to a question concerning the hearsay objection argued that an attorney handling a case cannot also be a witness in that case. Counsel is mistaken. See Rules of Professional Conduct, Rule 3.7. Lawyer as witness, which in part provides: "(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:... (2) The testimony relates to the nature and value of legal services rendered in the case...." However, on reargument, Mrs. Woodley's counsel conceded the objection was valid, but argued that the court had the inherent authority to fix attorney's fees after a review of the record.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619107/	792 S.W.2d 867 (1990) 303 Ark. 30 Loyd Ray WHITE, Appellant, v. STATE of Arkansas, Appellee. No. CR 90-15. Supreme Court of Arkansas. July 9, 1990. 868 Steven R. Davis, No. Little Rock, for appellant. R.B. Friedlander, Sol. Gen., Little Rock, for appellee. NEWBERN, Justice. Loyd Ray White appeals his convictions of rape and kidnapping for which he was sentenced, as an habitual offender, to life imprisonment and 40 years imprisonment to run consecutively. We disagree with his contention that the evidence was insufficient to support the conviction and with his argument that the victim should not have been allowed to state his "conclusion" that White was the person who raped him. The conviction is affirmed. The victim, aged 14 at the time the offense occurred, lived with his parents near the Youth Services Center at Alexander. He testified he was fishing alone at a pond on the center's grounds when a person he identified as White rode up to him four times on a "four-wheeler" vehicle. White spoke to the victim and, among other conversational items, told him he was waiting in the area for a girl with whom he, White, intended to engage in sexual intercourse. As the victim was leaving the pond area for home, he was accosted by a person with a gun dressed from head to toe in winter clothing, including a ski mask and colored glasses. The victim was asked for his money, of which he had none, and then was taken to a nearby shed where, at gunpoint, he was forced to engage in anal intercourse and fellatio. The victim first identified White at a police photo-lineup as the person who had approached him on the four-wheeler. At the trial the victim testified that he could not identify White by sight as the person who had raped him because the victim could not see the face of his attacker but that he was positive it was White because the person who had raped him used the same scatological language in the same way, and the voice was the same. The victim also mentioned that the rapist asked him repeatedly if he knew the person on the four-wheeler or could identify him. White admitted riding his four-wheeler on the grounds of the youth center on the afternoon in question but testified he was only there between 4:00 and 4:35 p.m. The victim testified it was later in the afternoon, 5:35 or 5:45 at the latest that he arrived at the pond and after which he was repeatedly approached by White. Other witnesses testified to having seen White riding on the grounds between 5:00 and 6:00 p.m. White contends the victim's identification testimony was equivocal and thus not sufficient, especially when combined with the lack of forensic evidence against him. He also contends that, because the victim couched his identification in terms of it being the victim's "conclusion" that his rapist was White, the evidence should not have been admitted. 1. Sufficiency of the evidence We view the evidence most favorably to the appellee, and the identification testimony of a rape victim is sufficient to support a conviction. Maulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988). Scientific evidence is not required. Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987). At some points in his testimony the victim said he did not know who the man in the mask was, but he had reached the conclusion, based on the scatological language used by the masked man that he was the same person as the one on the four-wheeler; the man who raped him had the "same kind of mind" as the man on the four-wheeler. White argues the victim's voice identification was equivocal and thus not sufficient to support the conviction, but we note this portion of the victim's testimony: "It 869 is the guy on the four-wheeler, Loyd, Loyd Ray White. I'm referring to the Defendant. That's the man who held me at gunpoint and raped me, that's what I think. I do not really have any doubts about that." We regard the voice identification as sufficient. Any inconsistencies there may have been in the victim's testimony were for the jury to resolve. Cope v. State, supra. 2. Admissibility At one point in his testimony on direct examination, the victim was asked if, while examining the area where the rape occurred with a police officer, he had seen any tracks. He responded that he had showed the officer where the four-wheeler tracks were but that there were no footprints. He concluded: "Just stuff that this builds up and comes back to the guy on the four-wheeler." Defense counsel objected that the answer was a conclusion and was not responsive to the question. The objection was sustained. Shortly thereafter, the victim was asked why he thought the masked man who raped him was the same person as White, whom he had recognized as the person on the vehicle. His response was: "He said it enough times [apparently referring to the scatological terminology], I know how it sounded and the way that guy with the mask said it, it sounded just like him. It sounded familiar." The next question was, "When did you come to that conclusion?" The victim answered, "When he was in behind me." Defense counsel objected on the ground that the witness was "stating conclusions." The objection was overruled. The argument here is that the court erred in allowing the victim to state his opinion. The argument equates "conclusion" with "opinion," and the only authority cited is Ark. R.Evid. 701 which permits a non-expert witness to testify as to an opinion if it is rationally based on his perception and helpful to a "clear understanding of his testimony or the determination of a fact in issue." We need not quibble about whether a conclusion and an opinion are the same, for even if we characterized the testimony as the expression of an opinion we would have to say it was rationally based on the victim's perception and helpful to determination of a fact in issue. We do not reverse a trial court's evidentiary rulings unless a clear abuse of discretion is shown. Clifton v. State, 289 Ark. 63, 709 S.W.2d 63 (1986). No abuse has been shown. 3. Rule 11(f) There is no indication in the brief filed for White that all objections decided adversely to him have been abstracted. There is no indication in the brief filed for the state that the attorney general has made certain that all objections have been abstracted or has briefed other points which appear to have merit in addition to those argued by White. Both parties have thus failed to comply with Rule 11(f) of the Rules of the Arkansas Supreme Court and Court of Appeals applicable to cases in which the sentence is to life imprisonment. Rather than incur the delay which would be involved if we asked for rebriefing, we have thoroughly examined the record and assured ourselves that no meritorious argument could be made with respect to the objections made on White's behalf in which the rulings were adverse to him and that there were no trial errors prejudicial to White requiring reversal. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619113/	38 So. 3d 79 (2009) Romaine Samples SCOTT III v. Catherine Grace SCOTT. 2080420. Court of Civil Appeals of Alabama. November 20, 2009. 80 Wendy Brooks Crew of Crew & Howell, P.C., Birmingham, for appellant. William P. Gray, Jr., and Douglas N. Robertson of Gray & Associates, L.L.C., Birmingham; and Daniel H. Chambers of Gorham & Cason, L.L.C., Birmingham, for appellee. PER CURIAM. Romaine Samples Scott III ("the former husband") appeals from a judgment of the Jefferson Circuit Court[1] ("the trial court"), which granted the former husband's petition to modify the parties' divorce judgment, in part, and found the former husband to be in contempt for willfully refusing to pay periodic alimony to Catherine Grace Scott ("the former wife") as ordered in the final divorce judgment of the parties. Facts and Procedural History The parties were divorced by the trial court on August 30, 2002. Pursuant to an agreement reached by the parties, which was incorporated into their divorce judgment, the former husband was obligated to pay periodic alimony to the former wife in the amount of $1,400 each month until the former husband's death, the former wife's death, the former wife's remarriage, "the [former] wife's commission of those acts contemplated in [§ ]30-2-55, [Ala.Code 1975,] or as otherwise provided by law."[2] On April 30, 2008, the former husband filed a petition to modify the parties' divorce judgment insofar as it awarded the former wife $1,400 a month in periodic alimony. The former husband alleged that there had been a material change in circumstances since the entry of the divorce judgment, asserting that the former wife's income had "increased substantially" while the former husband's income had "significantly decreased." The former husband further alleged that his obligation to pay periodic alimony to the former wife was due to be terminated because the former wife had "committed those acts contemplated in [§ ]30-2-55, [Ala.Code 1975]." On May 15, 2008, the former wife filed an answer to the former husband's petition 81 to modify, a counterpetition to modify the parties' divorce judgment, and a petition for a rule nisi. The former wife denied the material allegations set forth in the former husband's petition and averred that her award of periodic alimony was due to be increased. She further requested, among other things not pertinent to this appeal, that the trial court hold the former husband in civil and criminal contempt for failure to pay periodic alimony pursuant to the divorce judgment. On February 2, 2009, the former husband filed a motion for a summary judgment, arguing that there was "no genuine issue of material fact as to the cohabitation of the [former wife]." In support of his motion for a summary judgment, the former husband attached the former wife's deposition testimony and the affidavit of the parties' daughter.[3] The record indicates that the trial court did not rule on the former husband's summary-judgment motion. The trial court heard the following pertinent evidence at an ore tenus hearing held on February 3, 2009. The former wife testified that she met a male neighbor ("the alleged paramour") in October 2003 and that they drank wine together almost every night. She further stated that they had had sexual relations and that she had spent the night at the alleged paramour's home. However, she also testified that she was not "emotionally or sexually" involved with anyone. The former wife's testimony indicated that she and the alleged paramour had traveled out-of-state together several times a year, that they had keys to one another's homes, that the alleged paramour knew the security code to the garage door at the former wife's home, and that the former wife and the alleged paramour had spent holidays together. She further testified that she and the alleged paramour shared meals together two or three nights a week. The former wife also stated that the alleged paramour had not paid any of her bills or debts except on three isolated occasions; on those occasions, the former wife testified, she had reimbursed the alleged paramour on the same day. She stated that she had never paid any of the alleged paramour's bills. She testified that the alleged paramour had done her laundry on three occasions but that she kept no clothing or personal items at the alleged paramour's home and that the alleged paramour kept no clothing or personal items at her home. The former wife saw the alleged paramour approximately six days a week at her home, but, she stated, she had not spent the night at the alleged paramour's home since the spring of 2008. The former wife admitted that she and the alleged paramour had discussed § 30-2-55 and that she and the alleged paramour had changed some of their "habits and patterns" after she was served with the former husband's petition to modify. The former wife testified that the alleged paramour had never spent the night at her home. The former husband stopped making periodic-alimony payments to the former wife in April 2008. The former wife stated that she used an equity line of credit to meet her monthly expenses after the former husband stopped making periodic-alimony payments. The former wife drew approximately $6,000 from the equity line of credit sometime between August 15, 2008, and September 16, 2008. The former 82 wife testified that she had used that money to pay her college-education expenses. The former wife admitted that the former husband was not obligated to pay her college-education expenses in the divorce judgment. The former wife also indicated that she drew approximately $6,000 from the equity line of credit between October 22, 2008, and November 18, 2008. The former wife testified that she used approximately $4,800 of that money to pay her credit-card bill, which, she testified, had increased since the former husband had stopped making periodic-alimony payments to her in April 2008.[4] The former husband gave testimony setting forth his reasons for filing the petition to modify the former wife's award of periodic alimony. He testified that he had received information from the parties' daughter regarding a relationship between the former wife and the alleged paramour.[5] The former husband stated that he had met the alleged paramour at two social events when the alleged paramour was apparently escorting the former wife. Further, the former husband had learned that the former wife had gotten a job as a legal secretary and that she was earning more money than she did at the time the parties divorced. He further testified that he had begun having health problems and that he was concerned about his earning ability. The former husband stated that after he filed the petition to modify he paid the former wife's periodic-alimony payment into an escrow account held by his attorney's law firm. The former husband testified that he altered his method of paying the periodic alimony because he believed the new method was consistent with caselaw addressing the issue.[6] The former husband testified that he had been hospitalized approximately five times in the two years preceding the final hearing in this matter. He stated that his disposable income had decreased because of his medical bills. The former husband had worked at the same law firm for approximately three years preceding the final hearing, and he testified that his income had decreased in those three years. In March 2008, the former husband's residence went into foreclosure, and at the time of the final hearing the former husband was renting a home for $900 a month. 83 It was undisputed that the former wife's yearly income had increased by approximately $23,000 since the parties' divorce. Evidence also indicated that the former wife's monthly health-insurance cost had decreased from $203 a month to approximately $90 a month. The former wife also testified that, at the time of the divorce, she had had no retirement savings but that, at the time of the final hearing, she had approximately $15,000 saved in retirement accounts. The former husband's income-tax documents revealed that his yearly income at the time of the parties' divorce was approximately $136,000. The former husband testified that his earned income in 2008 and 2009 was $10,000 a month, or approximately $120,000 a year. However, the former husband's 2008 tax documents indicated that his yearly income was approximately $175,000. The former husband explained that any amount he received over $120,000 was a "distribution of profits." The former husband admitted that he had received a $30,000 bonus from his employer in January 2009, but he stated that he did not receive a bonus every month. The trial court entered a final judgment on February 4, 2009, containing the following findings and conclusions: (1) that the former wife's income had increased since the entry of the parties' divorce judgment and that, therefore, the former husband's periodic-alimony obligation to the former wife should be reduced to $950 a month; (2) that the former husband had unilaterally suspended all alimony payments to the former wife in April 2008 and had held those alimony payments in escrow; (3) that there was "no credible evidence tending to indicate that" the former wife was cohabitating with a member of the opposite sex so as to trigger the application of § 30-2-55; (4) that the former husband had brought the petition to modify in bad faith; (5) that the periodic-alimony payments made by the former husband into an escrow account were not made in good faith and caused a financial hardship to the former wife; (6) that the former husband owed the former wife $14,000, plus interest, as a periodic-alimony arrearage; (7) that the former husband was in contempt for willfully and intentionally refusing to pay periodic alimony to the former wife, as ordered in the parties' divorce judgment, from April 2008 through January 2009; (8) that the former husband should be sentenced to 50 days in jail but that that sentence would be suspended upon the payment of the periodic-alimony arrearage, plus interest, due the former wife; and (9) that, if the former husband became more than 10 days in arrears in his periodic-alimony payments at any point in the 2 years following the entry of the final order, upon the filing of a verified motion by the former wife, the trial court would conduct a "contempt hearing to determine if the conduct of the [former husband] shall merit the imposition of any remaining balance of said jail sentence." Discussion On appeal, the former husband first argues that the trial court erred in failing to terminate his periodic-alimony obligation to the former wife because, he asserts, there was credible evidence indicating that the former wife was cohabitating with a member of the opposite sex. This court has held that "`[i]t is a question of fact for the trial court to determine as to whether a former spouse is living openly or cohabiting with a member of the opposite sex in order to authorize a termination of periodic alimony under § 30-2-55, Code of Alabama 1975. The burden of proof as to that matter is upon the party seeking relief under 84 the code section. The trial court's decision upon that issue will not be revised upon an appeal unless, after considering all the evidence and the reasonable inferences therefrom, the trial court was palpably wrong.' "Knight v. Knight, 500 So. 2d 1113, 1115 (Ala.Civ.App.1986). `[C]ohabitation requires some permanency of relationship coupled with more than occasional sexual activity between the cohabitants.' Hicks v. Hicks, 405 So. 2d 31, 33 (Ala. Civ.App.1981); see also Vaughn v. Vaughn, 507 So. 2d 960 (Ala.Civ.App. 1987). . . . To evaluate the permanency of a relationship to determine whether a former spouse is cohabiting with a member of the opposite sex, this court has considered whether the former spouse is sharing a dwelling with a member of the opposite sex; whether the former spouse has ceased to date other members of the opposite sex; payment of the former spouse's creditors by a member of the opposite sex; and the purchase of clothes for the former spouse by a member of the opposite sex. Knight v. Knight, 500 So.2d at 1115." McNatt v. McNatt, 908 So. 2d 944, 945-46 (Ala.Civ.App.2005). Because the ore tenus rule applies to the trial court's findings, the trial court's judgment as to whether the former wife was cohabitating with a member of the opposite sex within the meaning of § 30-2-55 will be affirmed by this court "`if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.'" Id. at 945 (quoting Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So. 2d 375, 378 (Ala. 1992)). After a careful review of the evidence, we conclude that the trial court had evidence before it to support its finding that the former wife was not cohabitating with a member of the opposite sex.[7] The former wife's testimony revealed that she did not consider herself emotionally or sexually involved with anyone, that she and the alleged paramour maintained separate residences, and that she and the alleged paramour did not make any financial contributions to one another's creditors. See Snipes v. Snipes, 651 So. 2d 19, 20 (Ala.Civ. App.1994) ("Factors suggesting permanency of relationship include occupation of the same dwelling and the sharing of household expenses."). We conclude that the trial court was not plainly or palpably wrong in implicitly finding that the former husband had not met his burden, pursuant to § 30-2-55, to establish some permanency of the relationship between the former wife and the alleged paramour or more than occasional sexual activity between the former wife and the alleged paramour. See Ex parte Ward, 782 So. 2d 1285, 1287 (Ala.2000); McNatt v. McNatt, 908 So.2d at 946; and Sanders v. Burgard, 715 So. 2d 808, 811 (Ala.Civ.App.1998). We therefore affirm that part of the trial court's February 4, 2009, judgment finding that the former wife was not cohabitating with a member of the opposite sex within the meaning of § 30-2-55, and we also affirm that part of the trial court's February 4, 2009, judgment requiring the former husband 85 to pay the former wife $14,000, plus interest, as a periodicalimony arrearage. The former husband next argues that the trial court erred in holding that he was in contempt for failing to pay periodic alimony to the former wife from April 2008 through January 2009. He argues that he should not have been held in contempt because he, in good faith, relied on this court's decision in Sanders v. Burgard, supra, and paid the former wife's periodic alimony into an escrow account held by his attorney pending a determination by the trial court as to whether the former wife was cohabitating with a member of the opposite sex. In Sanders, this court stated: "[W]e have previously interpreted § 30-2-55 to mean that the obligation to pay periodic alimony ceases on the date the spouse receiving alimony began cohabiting. [Wood v. Wood,] 682 So.2d [1386,] 1386 [(Ala.Civ.App.1996)]. Yet, the legislature specifically provided that periodic alimony paid to a cohabiting or remarried spouse does not have to be repaid. However, those who pay periodic alimony are not left without options. For instance, in this case, Sanders paid periodic alimony into an escrow account pending the trial court's final ruling. Because the court determined that Burgard was cohabiting, the periodic alimony paid into the account was returned to Sanders. In addition, this court has in previous opinions refused to require the paying spouse to pay periodic alimony arrearages that accrued during the other spouse's remarriage or cohabitation. See Tillis v. Tillis, 405 So. 2d 938 (Ala. Civ.App.1981) (where husband stopped paying alimony on date of wife's remarriage, he did not have to repay alimony due between date of remarriage and date of his filing petition, because obligation ceased on date of remarriage); see also Musgrove v. Hawkins, 513 So. 2d 4 (Ala.Civ.App.1987) (holding that trial court erred in ordering husband to pay wife's medical bills incurred between the date her cohabitation began and the date the petition to terminate was filed, because his obligation to pay ceased on the date the cohabitation began). Although the paying spouse will not be required to pay periodic alimony arrearages if cohabitation is proven, we do not believe that it is wise for a paying spouse to simply stop paying periodic alimony based on his or her suspicion of the other spouse's cohabitation. Such a course of action could lead to a holding of contempt, not to mention that the paying spouse could owe a considerable amount of arrearage if cohabitation was not proven. Indeed, making payments into an escrow account appears to be the better course for a person in this situation." 715 So.2d at 810-11 (emphasis added). "A determination regarding contempt of court is committed to the sound discretion of the trial court, and we will affirm unless the trial court abused its discretion or `unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong. . . ."' Brown v. Brown, 960 So. 2d 712, 716 (Ala.Civ.App. 2006) (quoting Stack v. Stack, 646 So. 2d 51, 56 (Ala.Civ.App.1994)). On appeal, the former husband argues that the evidence presented at the final hearing did not support the trial court's finding of contempt. Conversely, the former wife argues that the trial court's findings that the former husband filed the petition to modify in bad faith and that he placed the periodic-alimony payments in escrow in bad faith support the trial court's finding that the former husband "willfully and intentionally failed and refused to . . . pay alimony as ordered." 86 However, after a review of the record, we cannot find any evidence to support the trial court's finding that the former husband filed the petition to modify in bad faith. At the final hearing, the former husband gave several reasons for filing the petition to modify, including his health condition, his knowledge that the former wife was earning substantially more income than she had been at the time of the parties' divorce, and the fact that former husband, based on information from the parties' daughter and his personal experience, suspected that the former wife had an ongoing relationship with the alleged paramour. After a review of the record, we cannot discern any evidence that the trial court could have relied on to support its finding that the former husband filed the petition to modify in bad faith. Furthermore, this court can find no evidence to support the trial court's finding that the former husband placed the periodic-alimony payments in escrow in bad faith. The former husband testified that he altered his method of paying the periodic alimony because he believed the new method was consistent with caselaw addressing the issue.[8] As set forth above, this court in Sanders clearly endorsed the payment of periodic alimony into an escrow account upon the filing of a petition to modify an award of periodic alimony pursuant to § 30-2-55 in order to avoid the possibility of a contempt finding. We conclude that the trial court exceeded its discretion in holding the former husband in contempt because there was no evidence to support the trial court's finding that the former husband "willfully and intentionally failed and refused to . . . pay [periodic] alimony as ordered." Instead, the evidence at the final hearing indicated that the former husband, following the clear direction given by this court in Sanders, began making periodic-alimony payments into an escrow account after filing a petition to modify the former wife's award of periodic alimony based, in part, on the former husband's good-faith belief that the former wife was committing the acts contemplated in § 30-2-55. Therefore, that part of the trial court's February 4, 2009, judgment holding order finding the former husband in contempt is reversed. On remand, the trial court is ordered to vacate that portion of its February 4, 2009, judgment holding the former husband in contempt. However, we cannot endorse the former husband's unilateral decision to place his monthly periodic-alimony payments into escrow. Such action has the potential to cause a financial hardship on a spouse receiving alimony. When a payor spouse files a petition to modify an award of periodic alimony based on § 30-2-55, we believe the better procedure is for the payor spouse to file a motion, in conjunction with or subsequent to filing the petition to modify, requesting that the trial court conduct 87 an expedited pendente lite hearing to determine whether the payor spouse may place periodic-alimony payments into escrow. Finally, the former husband argues that the trial court exceeded its discretion by failing to terminate his periodic-alimony obligation to the former wife based on the change in both parties' financial circumstances. "`It is well established in Alabama that the modification of an alimony provision based upon changed circumstances is a matter that rests within the circuit court's sound discretion. Furthermore, the ore tenus standard is applied to the ruling of the circuit court; thus, a presumption of correctness attaches to the ruling and the ruling will not be reversed unless it is not supported by the evidence and is clearly an abuse of the court's discretion.. . .'" Ex parte Millard, 683 So. 2d 1002, 1003 (Ala.1996) (quoting Ex parte Smith, 673 So. 2d 420, 421 (Ala.1995)). "`Thus, when [the Supreme] Court or the Court of Civil Appeals reviews a circuit court's order, it is not to substitute its judgment of the facts for that of the circuit court. Rea v. Rea, 599 So. 2d 1206 (Ala.Civ.App.1992). Instead, [the appellate court's] task is simply to determine if there was sufficient evidence before the circuit court to support its decision against a charge of arbitrariness and abuse of discretion. Peterman v. Peterman, 510 So. 2d 822 (Ala.Civ.App.1987).'" Id. (quoting Ex parte Smith, 673 So.2d at 422). We conclude that evidence presented to the trial court supports the trial court's judgment modifying the former wife's award of periodic alimony. The former husband presented evidence indicating that the former wife was earning approximately $23,000 a year more than she had been earning at the time of the parties' divorce. However, the former wife also produced evidence indicating that the former husband earned approximately $39,000 more in 2008 than he had at the time of the parties' divorce. The trial court could have concluded that that testimony, along with the testimony of the former husband regarding his medical condition, supported a downward modification of the former husband's periodic-alimony obligation to the former wife. The former husband argues that the former wife is "financially self-supporting and does not need alimony to sustain a lifestyle that is at least equal or better than that which existed during the marriage." The trial court heard ore tenus evidence regarding the former wife's income, expenses, and lifestyle, as well as evidence indicating that the former wife had been required to draw on an equity line of credit in order to pay her credit-card bill after the former husband stopped making periodic-alimony payments to her in April 2008. The trial court specifically found that the former wife had suffered a financial hardship when the former husband stopped making periodic-alimony payments directly to the former wife in April 2008. To reverse the trial court's judgment because we believe that the former wife was financially self-supporting or that she maintained a lifestyle status equal to or better than the status the parties had enjoyed during marriage would be to substitute our judgment for the trial court's, and that we will not do. See Ex parte Foley, 864 So. 2d 1094, 1099 (Ala.2003) (holding that "an appellate court may not substitute its judgment for that of the trial court" and that "[t]o do so would be to reweigh the evidence, which Alabama law does not allow"). Therefore, we affirm the 88 trial court's judgment insofar as it modified the former husband periodic-alimony obligation to the former wife. The former wife's request for attorney's fees is denied. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur. MOORE, J., concurs in part and dissents in part as to the rationale and concurs in the result, with writing. THOMAS, J., concurs in part and dissents in part, with writing. MOORE, Judge, concurring in part and dissenting in part as to the rationale and concurring in the result. I concur in that part of the main opinion affirming that portion of the judgment refusing to terminate the periodic-alimony obligation of Romaine Samples Scott III ("the former husband") on the basis of the alleged cohabitation of Catherine Grace Scott ("the former wife") with a person of the opposite sex. The facts of this case mirror almost exactly the facts in Rutland v. Rutland, 494 So. 2d 662 (Ala.Civ.App. 1986), another case in which this court affirmed a trial court's judgment based on its factual determination that a spouse who was receiving alimony was not cohabiting with her social and romantic companion. In his brief to this court, the former husband argues that he presented sufficient evidence to support a finding of cohabitation. Indeed, some aspects of the testimony of the former wife alone would have justified a finding that the former wife had at least, at one point in time, cohabited with a member of the opposite sex. However, under the ore tenus rule applicable to this case, our review is restricted to a determination of whether the trial court's factual findings are supported by credible evidence. McNatt v. McNatt, 908 So. 2d 944, 945 (Ala.Civ.App.2005). That standard of review does not permit this court to reverse the trial court's judgment based on a particular factual finding on the ground that sufficient, or even arguably more substantial, evidence supports a contrary factual finding. See Ex parte R.E.C., 899 So. 2d 272, 279 (Ala.2004). Hence, I find the former husband's argument unavailing, and I agree with the main opinion that the trial court did not commit reversible error by failing to find that the former wife had been cohabiting with a person of the opposite sex. I also concur in that part of the main opinion reversing that portion of the judgment holding the former husband in contempt. Although, on February 10, 2009, the former husband purged himself of contempt by paying the former wife the alimony he had paid into escrow, together with interest, his appeal as to this issue is not moot. See Gilbert v. Nicholson, 845 So. 2d 785 (Ala.2002) (appellant's purging of contempt by payment of past-due child support did not moot appeal); see also Ex parte Parmer, 373 So. 2d 845 (Ala.1979). Substantively, I agree with the main opinion that the record contains no credible evidence supporting the trial court's factual determination that the former husband alleged the cohabitation of the former wife in bad faith.[9] At trial, the former 89 wife bore the burden of proving that the former husband had committed contempt of court. In her brief to this court, the former wife argues that she carried her burden by proving that the former husband alleged cohabitation based exclusively on hearsay, specifically, the out-of-court statements of the parties' daughter. I cannot agree that the former husband relied on only hearsay to form his belief that the former wife was cohabiting. The former husband testified that, in addition to statements he received from the parties' daughter, he had also suspected that the former wife was cohabiting based on his personal observations of the former wife and her alleged paramour at family events. Nevertheless, even if the former husband had based his allegation exclusively on the daughter's statements, such reliance does not constitute bad faith. In many civil cases, at the time of the filing of a pleading, a party may have no access to firsthand information or other admissible evidence to prove his or her allegations, but that certainly does not mean that those allegations have no substantial justification or that the allegations are interposed for vexatious purposes. See Ala.Code 1975, § 12-19-271(1) (defining "without substantial justification" as that term is used in the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq.). In this particular case, for example, the hearsay statements turned out to be reliable because, in her testimony at trial, the former wife actually confirmed many of the statements contained in the affidavit of the daughter that, as elaborated above, would have supported a finding of cohabitation. Because there appears to be no other basis for its finding, the trial court obviously erred in concluding that the former husband had alleged cohabitation in bad faith. The trial court likewise erred in finding that the former husband had paid alimony into escrow in bad faith. The undisputed testimony shows that the former husband relied on a statement contained in Sanders v. Burgard, 715 So. 2d 808, 811 (Ala.Civ. App.1998), when, without first receiving permission from the trial court, he ceased making alimony payments to the former wife and, instead, made those payments into an escrow account pending the outcome of the parties' litigation. The parties dispute whether the statement from Sanders that the former husband relied on is dictum, but, even if it is, I find that it is sufficiently authoritative to remove any implication that the former husband was acting willfully and contumaciously when he followed its direction. See Rule 70A(a)(2)(D), Ala. R. Civ. P. (defining "civil contempt" as the "willful, continuing failure or refusal of any person to comply with a court's lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with"). Although the main opinion's conclusion that the trial court committed reversible error in finding the former husband in contempt completely resolves that issue, the majority today modifies the directive in Sanders by creating a new procedure requiring a payor spouse to file a motion and to receive the approval of the court before paying alimony into escrow. I do not believe that procedure solves the dilemma at hand. Section 30-2-55, Ala. Code 1975, provides: "Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony 90 has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex. This provision shall be applicable to any person granted a decree of divorce either prior to April 28, 1978, or thereafter; provided, however, that no payments of alimony already received shall have to be reimbursed." (Emphasis added.) Both Sanders, 715 So.2d at 810, and Ex parte Ward, 782 So. 2d 1285, 1288 (Ala.2000), state that the last line of § 30-2-55 prohibits reimbursement of payments of alimony made to a cohabiting spouse. Thus, should a trial court exercise its discretion by denying a motion to escrow alimony payments pendente lite, only to later determine that the receiving spouse had been cohabiting with a member of the opposite sex within the meaning of § 30-2-55, the trial court would be powerless to order the receiving spouse to return the funds. On the other hand, should the trial court exercise its discretion by granting the motion, only to later determine that the receiving spouse had not been cohabiting, the release of the escrow funds, even with interest, may in many cases prove an inadequate remedy to a receiving spouse who has undergone financial hardship in the interim. In my opinion, the better solution, and one which would protect all the parties, would be to hold that § 30-2-55, in fact, does not prevent reimbursement of alimony payments made to a receiving spouse judicially determined to have cohabited with a member of the opposite sex. That construction would allow an allegedly cohabiting spouse to continue to receive alimony without it being placed in escrow. If the trial court determines that the receiving spouse has been cohabiting, the trial court may protect the payor spouse by ordering the receiving spouse to reimburse the periodic-alimony payments made during the period of cohabitation. If the trial court determines that the receiving spouse has not been cohabiting, the parties would remain in status quo, sparing the receiving spouse from any financial hardship. I believe ordinary rules of punctuation would support the foregoing construction. The first clause in the last sentence of § 30-2-55 is separated from the second clause by a semicolon. In discussing the use of a semicolon in another statute, our supreme court stated: "One of the common uses of a semicolon is to separate independent clauses closely connected in meaning. See J. McCrimmon, Writing With A Purpose, 409-10 (5th ed.1974); F. Crews, The Random House Handbook, 341 (2d ed.1977). `A semicolon is . . . employed to separate independent elements, especially when they are related and not joined by a conjunction.' The American Heritage Dictionary of the English Language (American Heritage Publishing Co. 1969). It is, therefore, logical to assume that the legislature used a semicolon, rather than a period, to separate the third clause from the first and second clauses of the third sentence because the subject matter of the third clause is closely related to the subject matter of the two preceding clauses." Saxon v. Lloyd's of London, 646 So. 2d 631, 634-35 (Ala.1994). Following that logic, the second clause of the last sentence of § 30-2-55 bears a close relation to the first clause of that same sentence. The legislature obviously intended that § 30-2-55 would apply to divorce judgments entered on or after April 28, 1978, and that payments of alimony received before that date would not be reimbursable. The legislature did not intend, as the courts stated in Sanders and Ward, that alimony payments made to cohabiting former spouses would never be reimbursable after April 28, 1978. 91 Of course, this court has the power to overrule Sanders because it is one of our own opinions. However, this court has no power to overrule decisions of the Supreme Court of Alabama. C & S Constr. Co. v. Martin, 420 So. 2d 788, 789 (Ala.Civ. App.1982). Based on my review of the statement in Ward, however, I am not convinced that our supreme court actually decided that the last line of § 30-2-55 prevents a refund for any periodic alimony a payor spouse has already paid after cohabitation begins. That issue was not even before the court in Wardnothing in the facts indicates that the payor spouse was even seeking a refund of alimony payments made to the cohabiting receiving spouse. Hence, the statement in Ward appears to be dictum, which, though persuasive, is not binding on this court. See Ex parte M.D.C., [Ms. 1071625, Sept. 30, 2009] ___ So.3d ___, ___ (Ala.2009). By overruling Sanders, and by contradicting the dicta in Ward, I do not believe we would exceed our authority. However, as I am in the minority on that point, I can only respectfully dissent and urge the supreme court to reconsider its position. Finally, I concur in the result as to the affirmance of that portion of the judgment reducing, but not terminating, the former husband's alimony obligation. Although I agree with the former husband that the evidence shows without dispute that the former wife is now self-supporting without the alimony, see Peterman v. Peterman, 510 So. 2d 822, 823 (Ala.Civ.App.1987) (holding that a former spouse is self-supporting when his or her total income equals or exceeds his or her expenses), the former husband cites no authority that requires a trial court to terminate alimony based on a finding that the receiving spouse is currently self-supporting. See Rule 28, Ala. R.App. P. In fact, our caselaw indicates that a trial court retains the discretion to maintain alimony even when the receiving spouse has become self-supporting. See Peterman, 510 So.2d at 823 ("We hasten to point out that even where a recipient of periodic alimony is determined to be self-supporting, such fact would merely authorize a trial court to terminate or modify periodic alimony in its discretionary power, yet such would not necessarily mandate the court to do so."); see also Jones v. Jones, 251 Ala. 179, 181, 36 So. 2d 310, 312 (1948) (return to employment by former wife and her ability to thereafter "make both ends meet" did not mandate reduction or termination of alimony). By relying solely on the argument that the trial court was required to terminate his periodic-alimony obligation based upon the evidence that the former wife is self-supporting, the former husband has utterly failed to show that the trial court exceeded its discretion. THOMAS, Judge, concurring in part and dissenting in part. Although I concur in all other aspects of the main opinion, I must respectfully dissent from that portion of the opinion affirming the trial court's denial of the former husband's petition to terminate alimony, which was based, in part, on the former husband's assertion that the former wife had been cohabitating with a member of the opposite sex. The former wife, who is a legal secretary, testified that she had consulted both Ala.Code 1975, § 30-2-55, and some of the caselaw addressing that code section when she was served with the former husband's petition to terminate alimony. She also admitted that she and her alleged paramour had changed aspects of their behavior after she was served with the former husband's petition to terminate alimony. The former wife's testimony at trial was, at best, inconsistent. When asked whether she was emotionally and sexually involved 92 with the alleged paramour, the former wife responded "yes and no" and said that she was not "emotionally and sexually involved with anyone." She later testified that she was "emotionally involved" with her alleged paramour. She also admitted being "emotionally attached" to her alleged paramour and admitted having had a sexual relationship with him in the past. Although they did not share expenses or live in the same dwelling, see Taylor v. Taylor, 550 So. 2d 996, 997 (Ala.Civ.App. 1989) (indicating that those factors suggest some permanency of relationship), the former wife and the alleged paramour saw each other five to six days a week, went on trips together to visit family members both in and outside Alabama, regularly spent holidays with each other's families, and ate meals together at least three nights per week from October 2003 until the spring of 2008. On their trips together, the former wife and the alleged paramour shared expenses at times; the former wife testified that she sometimes paid for the alleged paramour's meals and that he sometimes paid for hers. The former wife further testified that, on some trips, the alleged paramour paid for their lodging reservations on his credit card. The former wife and the alleged paramour have keys to each other's residences, and the former wife said at trial that the alleged paramour knew the alarm code to her home, as well. When the alleged paramour twice had knee surgery, the former wife stayed the night in the hospital room with him; both the alleged paramour and the former wife had driven the other to and from the hospital for outpatient procedures. The alleged paramour is listed as the former wife's emergency contact. As mentioned in the main opinion, the former wife admitted that she and the alleged paramour drank wine together almost every night. She also admitted to eating meals with the alleged paramour regularly. She further admitted that she and the alleged paramour had spent the night together in the past, although she indicated that they never spent the night together at her home. And, yet, when asked whether her daughter had been present in June 2004 when the former wife and the alleged paramour had eaten a meal together and then retired to the alleged paramour's home for the night, the former wife's answer was evasive and nonresponsive to the question; she answered "if that happened, yes, she could have." As noted above, the former wife admitted to consulting both statutory law and caselaw regarding cohabitation and alimony. She said that she and her alleged paramour had discussed the issue of her alimony and that they had discussed what things she and he could and could not do, based on the law regarding the termination of alimony. The only testimony specifically indicating what changes the former wife and the alleged paramour made to their relationship after she was served with the petition to terminate alimony was the former wife's admission that she had showered at the alleged paramour's house at times before the petition to terminate alimony was filed, but not after. The former wife testified that she had ended her sexual relationship with the alleged paramour sometime in the spring of 2008; she was served with the former husband's petition to terminate alimony in May 2008. In my opinion, the former wife admitted that the petition to terminate alimony compelled her and her alleged paramour to change the character of their relationship out of fear that her alimony would be terminated. Thus, I would conclude that the former wife's testimony is an admission that her relationship with her alleged paramour, before the changes in behavior they admittedly 93 made, amounted to cohabitation under § 30-2-55. Coupled with the other evidence indicating that the former wife and her alleged paramour had had some permanency of relationship and had engaged in more than occasional sexual activity, see Ex parte Ward, 782 So. 2d 1285, 1287 (Ala.2000), I believe the former wife's admission that she changed her behavior in response to the former husband's petition should compel a conclusion that the former wife was cohabiting with her alleged paramour at the time the former husband sought to have his alimony obligation terminated. I would, therefore, reverse the trial court's judgment insofar as it declined to terminate the former husband's alimony obligation based on the fact that the former wife was cohabiting with a member of the opposite sex. NOTES [1] All the judges serving in the domestic-relations division of the Jefferson Circuit Court recused themselves from this case. The case was therefore assigned to a judge from the Marshall District Court. [2] Section 30-2-55 provides, in pertinent part: "Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.... [N]o payments of alimony already received shall have to be reimbursed." [3] According to her sworn affidavit, the parties' daughter lived with the former wife from August 2003 through March 2006, and again from March 2007 through August 2007, and she had personal knowledge of certain aspects of a relationship between the former wife and the former wife's neighbor. [4] A review of a statement of the former wife's credit-card use reveals that the former wife paid $4,506.25 toward her accumulated credit-card debt in October 2008, which was the total balance of her credit card. In April 2008, the balance on the former wife's credit card was $589.60. [5] The former husband attached the affidavit of the parties' daughter to the motion for a summary judgment he filed the day before the final hearing in this matter. However, the parties' daughter did not testify at the final hearing. The trial court heard the former husband's testimony regarding the statements made by the parties' daughter in her affidavit, not for the truth of the matter asserted, but only to establish the former husband's motive for filing the petition to modify. See Queen v. Belcher, 888 So. 2d 472, 477 (Ala.2003) (noting that statements in affidavits are generally considered to be inadmissible hearsay that cannot be offered as substantive evidence at trial). The former husband's brief on appeal contains a statement of facts that includes certain facts found only in the former wife's deposition testimony and a factual summary of the statements in the parties' daughter's affidavit. The former wife asks this court to strike those portions of the former husband's brief that incorporate facts not contained in the trial record, i.e., facts derived from the former wife's deposition testimony and the parties' daughter's affidavit. We deny the motion to strike; however, this court has considered only the evidence properly offered to and received by the trial court. See Thompson v. Patton, 6 So. 3d 1129, 1138 (Ala.2008). [6] The former husband is a practicing attorney in Jefferson County. [7] The former husband asks this court to "consider whether to allow recipients of alimony to enter into relationships that fall well within the spirit of cohabitation but allow them to retain alimony because they, through last minute manipulation, seek to make the relationship appear to be less permanent than it is." We believe that it is well within the sound discretion of the trial court to consider such a scenario in making its judgment. Although this court is disturbed by the former wife's admission that she and the alleged paramour adjusted some of their behavior after she received the former husband's petition to modify the parties' divorce judgment, we must assume that the trial court heard that testimony and fully considered it when making its final determination. [8] The former wife argues that the former husband did not produce any evidence at trial to substantiate his claim that he began paying alimony into escrow after filing the petition to modify, especially in light of the fact that the former husband filed motions pro se for two months following the filing of his petition to modify and escrow account was purportedly held by his attorney's law firm. However, the former wife never challenged the former husband's failure to produce evidence to show when he first began making the periodic-alimony payments into escrow. In fact, there is very little testimony in the record regarding the escrow of the periodic-alimony payments from April 2008 through January 2009. The former husband testified that the $1,400 a month that was due the former wife was paid into an escrow account held by his attorney's law firm. Further, in its final order, the trial court found that the former husband "ha[d] held the [periodic] alimony payments in escrow." [9] The main opinion states that "we cannot find any evidence to support the trial court's finding that the former husband filed the petition to modify in bad faith." 38 So.3d at 86. Actually, the trial court did not find that the former husband filed the entire petition to modify in bad faith. It found only that the former husband had alleged cohabitation in bad faith. Hence, I believe the main opinion is overly broad in addressing the good faith of the former husband in alleging that alimony should be modified based on the changed financial circumstances of the parties.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/98244/	234 U.S. 497 (1914) THE PEOPLE OF THE STATE OF ILLINOIS, ON THE RELATION OF DUNNE, GOVERNOR, AND LUCEY, ATTORNEY GENERAL, v. ECONOMY LIGHT AND POWER COMPANY. No. 179. Supreme Court of United States. Argued April 29, 30, 1914. Decided June 22, 1914. ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS. 498 Mr. Merritt Starr and Mr. Horace Kent Tenney, with whom Mr. Elijah N. Zoline, Mr. John S. Miller, Mr. George Packard and Mr. Harry A. Parkin were on the brief, for plaintiffs in error. Mr. Frank H. Scott, with whom Mr. Gilbert E. Porter and Mr. Edgar A. Bancroft were on the brief, for defendant in error. 510 MR. JUSTICE McKENNA delivered the opinion of the court. This was a proceeding brought in the Circuit Court of Grundy County, Illinois, being an information filed by the Attorney General of the State on behalf of the people of the State on the relation of the Governor, against defendant in error, the Economy Light & Power Company, to restrain that company from erecting a dam across the Des Plaines River and from causing the waters of the river to back up and overflow the lands of the State, to refrain from permitting the obstructions placed in the river to remain therein, and that certain deeds, leases and contracts made by the canal commissioners of the State to the company be declared null and void. The information was dismissed by the Circuit Court and its decree was affirmed by the Supreme Court. This writ of error was then sued out by plaintiffs in error. A motion is made to dismiss on the grounds (1) that no Federal question was decided by the Supreme Court adversely to plaintiffs in error. (2) The Federal questions sought to be raised in this court were not raised in the trial court and under the practice in Illinois were not open to review in the Supreme Court, and were not reviewed. (3) The Federal questions raised are without merit. (4) The decision of the Supreme Court is sustainable upon non-Federal grounds. The motion makes necessary a consideration of the 511 allegations of the information and of the grounds of decision of the court. The information alleges the following: The State of Illinois was formed out of the Northwest Territory ceded by Virginia to the United States in 1784, and by the ordinance for the government of the territory it was declared in Article 4 that "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States and those of any other States that may be admitted into the Confederacy, without any tax, impost or duty therefor." On May 18, 1796 (1 Stat. 464, c. 29), Congress passed an act for the sale of lands of the United States in the territory northwest of the Ohio River and above the mouth of the Kentucky River, by § 9 of which act it was provided that all navigable rivers within the territory to be disposed of by virtue of the act should be deemed to be and remain public highways. Subsequently there was separated from such territory by an act of Congress dated May 7, 1800 (2 Stat. 58, c. 41), the portion thereof which now embraces the States of Illinois and Louisiana, to be called Indiana Territory. On March 26, 1804 (2 Stat. 277, c. 35), Congress, acting under the constitution of 1787, passed an act for the disposal of the public lands in Indiana Territory, by which it was provided that all the navigable rivers, creeks and waters within that Territory should be deemed to be and remain public highways. By an act of February 3, 1809, 2 Stat. 514, c. 13, Congress divided the Indiana Territory and constituted that portion of it which now comprises the State of Illinois a separate territory, to be called Illinois, and provided that its inhabitants should be entitled to and enjoy all and singular the rights, privileges and advantages 512 granted and secured to the people of the Northwest Territory by the ordinance of July 13, 1787. On April 18, 1818 (3 Stat. 428, c. 67), Congress passed an act to enable the people of Illinois to form a constitution and state government for admission into the Union upon an equality with other States and provided that the government should be republican and not repugnant to the ordinance of July 13, 1787. A constitution was adopted and Congress, on December 3, 1818 (3 Stat. 536), declared the admission of the State into the Union, that its constitution and government were republican and in conformity to the provisions of the articles of compact between the original States and the people and the States in the territory northwest of the river Ohio, passed on July 13, 1787 (1 Stat. 51n.). The river Des Plaines is situated in the Northwest Territory, rises in Wisconsin and flows southerly into the State of Illinois (its course is given), in all a distance of about ninety-six miles. The river Kankakee rises in Indiana and flows westerly into Illinois and unites in Grundy County with the Des Plaines, forming with it the Illinois which flows thence westerly and southwesterly through several counties in Illinois into the Mississippi River. Wherefore by reason of the fact that the Des Plaines River is wholly within the Northwest Territory and that it empties its waters into the Mississippi, and by reason of the other facts set forth, it is subject to the provisions of the acts of Congress set out. It is shown by early explorations and discoveries that the Des Plaines River was navigable from a point near where is now situated the City of Chicago to its mouth, and was used as a highway for commercial purposes, and commerce was carried on over it and over the Chicago River, located in Cook County, Illinois, and connection therewith made by a short portage between the two 513 rivers near the site of what is now the City of Chicago and was in use as a highway of commerce leading from Lake Michigan and the waters emptying into the St. Lawrence River on the one hand, and the waters of the Mississippi River on the other, thenceforward from the time of said first use up to and at the time when the ordinance of 1787 and the several acts of Congress were respectively enacted. Afterward the State of Illinois, by and through its legislature and in obedience to the several acts of Congress set forth, assumed charge of the river and in 1839 gave permission for the building of a toll bridge across the river, and subsequently by an act passed in 1839 amending the several laws in relation to the Illinois and Michigan Canal it was provided that no stream of water passing through the canal lands should pass by the sale so as to deprive the State of the use of such water if necessary to supply the canal without charge for the same; and it was further provided that the lands situated upon the streams which have been meandered by the surveys of public lands by the United States should be considered as bounded by the lines of those surveys and not by the streams. In the same year an act was passed declaring the river a navigable stream and providing that it should be deemed and held a public highway and should be free, open and unobstructed from its point of connection with the canal to its utmost limit within the State for the passage of all boats and water craft of every description. In 1845 the State authorized the construction and continuance of the mill dam across the river with reservation of the right to the State of improving the dam and of using the water for the canal, and for any other purpose; and in 1849 authorized the building of a bridge at Lockport. The State by certain acts of its legislature (they are set out) created the Sanitary District of Chicago, under the provision of which a channel was constructed connecting Lake Michigan with the Des Plaines River, at a point 514 some sixteen miles above the site of the dam in question, and through which about 300,000 cubic feet of water per minute are drawn through the Chicago River and the Sanitary District Drainage Channel and discharged in the Des Plaines River. It was provided that the channel when completed should be a navigable stream and that when the General Government should improve the river it should have full control over the same for navigation purposes, but not to interfere with its control for sanitary drainage purposes. On December 6, 1907, the legislature passed an act, which is as follows: "SEC. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That the Des Plaines and Illinois rivers throughout their courses from and below the water power plant of the main channel of the Sanitary District of Chicago in the township of Lockport, at or near Lockport, in the county of Will, are hereby recognized as and are hereby declared to be navigable streams, and it is made the special duty of the Governor and the Attorney General to prevent the erection of any structure in or across said streams without explicit authority from the General Assembly, and the Governor and Attorney General are hereby authorized and directed to take the necessary legal action or actions to remove all and every obstruction now existing in said rivers that in any wise interferes with the intent and purpose of this act." The relator, Charles S. Deneen, is the Governor referred to in the act and that by virtue of the statute, his office and constitutional duty he has a special interest and responsibility in the matters set forth. The purchasers from the State in section 25 and other similarly situated lands with reference to the Des Plaines River did not take, and did not claim to take, under their several purchases that portion of the lands lying between 515 the meander line and the water of the river and that the lands so lying have never been used by any individual under any claim of authority or right vested in the purchasers from the State of Illinois, save and except as claimed by defendant. Lands so lying, therefore, together with the bed of the stream of the river in said quarter-section, and other lands similarly situated with reference to the river, have not passed by any purchase of adjoining lands from the State of Illinois, but the same and every part thereof is owned by the State and held for the benefit of its people and of the people of the United States as a public highway for commerce. The trustees of the Illinois and Michigan Canal executed and delivered to one Charles E. Boyer a deed bearing date October 22, 1860, to land in section 25, excepting and reserving so much as was occupied by the canal and its waters, and a strip ninety feet wide on either side of the canal, containing 196 62-100 acres, the tract being a portion of the land granted by the United States to the State to aid the State in opening a canal to connect the waters of the Illinois River with those of Lake Michigan and by the State granted to the Board of Trustees of the canal for the purposes set forth in the act of February 21, 1843. The defendant derives its title by mesne conveyances from Boyer and certain contracts and leases entered into between the canal commissioners and one Harold F. Griswold and assigned to defendant, and in pursuance of the claim of right thus obtained defendant commenced the construction of a dam across the river, but that the said several leases, deeds and contracts are ineffectual to confer any right to build or maintain the dam. The legislature of the State, by a proper resolution passed on October 16, 1907, has proposed the building of a deep waterway commencing at the southern end of the Chicago Drainage Canal and extending along the Des Plaines River, to be submitted to a vote of the people 516 of the State, and, if the same is built, as incident thereto locks and dams will necessarily be constructed across the deep waterway at or near the S.E. 1/4 of section 25, which dams will incidentally afford water power of the value of several millions of dollars to the State which will be lost to the State if the defendant be permitted to construct the dam in question. The 90-foot strip along the line of the Illinois and Michigan Canal constitutes an integral part of the canal and the trustees of the canal and the canal commissioners of the State had no right or authority under the law to convey the same by deed, lease or otherwise. Wherefore the defendant acquired no right to such strip and said deeds, leases, contracts and other agreements are void so far as they pertain to the bed of the stream of the river, and to the lands lying outside of the meander line. By virtue of the several acts of Congress set forth, the State is the owner of such lands and other lands similarly situated. The defendant, claiming to own such lands and other lands in section 25, has actually begun the erection of the dam referred to; the Attorney General, therefore, on December 12, 1907, served notice upon the defendant to desist from the erection of the dam and from further trespassing upon the lands owned by the State, and to remove any and all obstructions placed thereon. Defendant has ignored the notice and unless prevented by injunction will complete the dam to the great impairment of navigation and to the great and irreparable damage of the people of the State. There are other allegations in regard to the leases and contracts from the canal commissioners which are not necessary to be given. The prayer of the information was for an injunction in accordance with the allegations. Defendant in error summarizes its answer as follows: It denied that the Des Plaines River was or ever had been 517 navigable, and alleged that it never had been navigated for the purpose of commerce and also that it had from the earliest times been completely obstructed by various bridges and dams built without legislative authority, and that the State itself had constructed and for many years maintained, and still maintains, a dam entirely across the river at Joliet. It set out correspondence with the War Department of the United States before the construction of the dam was begun, from which it appeared that the plans of the proposed structure were submitted to that Department for the purpose of ascertaining whether the project would be in harmony with the work of the improvement of the river proposed but never decided upon by the Government, and that the officers of the Department stated not only that it would be so in harmony but if carried out it would save the Government large sums of money. The correspondence also stated that the river had never yet been considered a navigable stream of the United States and that it was not subject to the provision of §§ 9-13 of the act of March 3, 1899 (30 Stat. 1151, c. 425), or to other similar United States legislation. The answer further alleged that subsequently defendant in error acquired the property and that a large sum of money had been expended and heavy obligations incurred by it in carrying out the project of building the dam. Upon the issues thus made, evidence was taken, which composes three large volumes upon which the courts below decided against plaintiffs in error; and we are to consider whether in so doing any Federal right was passed upon or denied it. To sustain the contention that such right was passed upon and denied, it is said "that at the time the information in equity was filed, and for over six years before the defendant in error became a riparian owner, the Des Plaines River, irrespective of the question of its navigability, 518 was a navigable river of the United States at the point where the dam was erected" and this because of the "concurrent action of the State and Federal Governments by the construction of the Chicago Sanitary Ship Canal, the connection of it with the Chicago River and Lake Michigan on the northeast and the discharge of the water into Lake Michigan from it into Des Plaines and Illinois on the southwest." It is further contended that the state court did not decide this question adversely to plaintiffs in error but, on the contrary, excluded the admitted fact as being immaterial because that condition was artificially created. And this because defendant in error urged in that court that the navigability of the river could not be determined by its capacity as improved by the addition of the water of the Sanitary District. The court in its decision, therefore, it is the final contention, denied the rights arising from the condition of navigability thus created by state and Federal action, and plaintiffs in error insist that "if artificial navigability can create a public right which is entitled to protection against the acts of one who purchases riparian property after that condition was created, then on the conceded law the judgment of the state court was erroneous. And if those public rights are created or protected by Federal law, this court has jurisdiction to reverse the judgment." The inquiry immediately occurs, How did the so-called public right arise? From the mere addition of water to the river or by the conditions upon which it was admitted? The bill alleges the enactment of many laws and a complex system of improvements by virtue of them, rights asserted by the State to the lands bordering on the river and rights to the bed of the river, conveyances, leases, and contracts by public officers constituted by laws which verbally, at least, confer authority upon them, and rights asserted by defendant in error arising from the execution 519 of such authority. But all of the questions hence arising are state questions, whether depending upon law or fact, which it is not in our province to review. It would seem, therefore, at the outset that one of the elements of the Federal right asserted is absent. However, let us see what the Supreme Court of the State has decided. Mr. Justice Vickers, delivering the opinion of the court, says, (241 Illinois, p. 309): "Appellant [the State] bases its claim on three propositions as follows: (1) That the State of Illinois owns the bed of the river at the point where it is proposed to build said dam; (2) That the Des Plaines River is a navigable stream, and that the proposed dam would constitute an obstruction to navigation; (3) That certain contracts executed by the commissioners of the Illinois and Michigan Canal, under which appellee [defendant in error] claims certain rights in connection with the construction of said dam, are void, and that no rights were acquired by or can be asserted under said contracts." The first and third propositions manifestly involve state questions and were decided adversely to plaintiffs in error. They might be put out of discussion except so far as they may have bearing on the second proposition. By the second proposition the navigability of the river is presented as a question of fact, and of it the court said that it had received the most exhaustive treatment by counsel, and that if the dismissal of the bill by the court below had been without prejudice to renew the application for injunction the action of the court could be sustained because of the utter failure of the plaintiffs in error to prove that the construction of the proposed dam would be an obstruction to the then navigation of the river. "There is no proof," the court said (p. 320), "that the river is now being used as a public highway for commerce. On the contrary, the evidence not only shows that the river is not being so used, but it shows affirmatively that, 520 owing to the presence of numerous other dams and some fifty or more bridges which span the river, it would be impossible, under existing conditions, to navigate the same. There being at present no navigation whatever upon the river, obviously the dam in question cannot be said to be an obstruction to navigation that has no existence in fact." The trial court not making the indicated reservation but having rendered a decree based on the finding that the river was not navigable, thus settling the question for all time, the Supreme Court considered the question as presented on the merits. After a review of the evidence and the contentions of the parties, it decided that the river was not navigable in a state of nature, and declared that there was not in the entire record a well authenticated instance in which a boat engaged in commerce navigated the waters of the Des Plaines River. Referring to the testimony, the court said (p. 336), "Whatever may be thought of the preponderance of it one way or the other, it can have but little weight as against the uncontroverted fact that the river has never been used as a public highway for commerce." And again (p. 338), "After the most careful consideration of this question we are of the opinion that the Des Plaines River in its natural condition is not a navigable stream, and that the rights of parties to this suit must be determined upon that basis." The court besides rejected the contention that the Sanitary District Act declared the river to be navigable. The contention, it was said, was "based on a sentence in § 24 of said act, as follows: `When such channel shall be completed, and the water turned therein, to the amount of 300,000 cubic feet of water per minute, the same is hereby declared a navigable stream.' Appellant's [the State] contention under this statute, is thus stated in its brief: `The same means that the water flowing in that channel is a navigable stream. The water so turned in was navigable in fact, and it does not lose its navigability 521 in passing out of the artificial channel into the channel of the Des Plaines River. The water is just as navigable one-half mile southwest of Joliet as it is one-half mile northeast of Joliet.' The argument is based upon an erroneous construction of the word `same.' That term refers to the channel of the Sanitary District and has no reference to the water after it leaves the channel" (p. 329). The court, however, said that even if the legislature had declared in unequivocal language that the river was navigable, as it did by the act of 1907 [the act under which the information was filed], the declaration could not affect the rights of defendant in error, they being protected by the constitution of the State which forbids private property from being taken for public use without just compensation previously made, for which the court cited a number of cases and Cooley on Constitutional Limitations (side p. 591). And it was added that none of the legislative acts had the primary purpose of permitting a deep-water channel from the Lakes to the Gulf by means of improving the channel of the Des Plaines River, nor did the various acts passed in the interest of the Illinois and Michigan Canal nor the Sanitary District Act include a general scheme for the improvement of that river. "Up to this time," it was further said (p. 331), "no general plan for the deep waterway has been adopted, either by the State or the Nation," and whether any such enterprise will ever be adopted and whether it will include the Des Plaines River "are all legislative questions, with which the courts have no concern." If it be done, the court continued, it must be done "with due regard . . . to the sacred rights of every citizen, however humble and insignificant those rights may seem in contrast with the great public consummation." We have already seen that the contention of the plaintiff in error that the bed of the river was in the State and 522 not in the riparian owners, among whom is defendant in error, by force of the act of the legislature of the State of February 26, 1839, in relation to the Illinois and Michigan Canal, was held untenable, and it was further held that the contracts of the canal commissioners under which defendant in error claims rights were valid. And the court further decided that the legislation of the State did not intend nor contemplate the improvement of the Des Plaines River from a condition of non-navigability to navigability and no act, except that of 1907, had declared it to be navigable, and that no act could do so and affect private rights under the constitution of the State. The supreme tribunal of the State, has, therefore, decided that plaintiffs in error have no elements of right against defendant in error. It is said, however, as a foundation of a right under the acts of Congress alleged, that the river, although it was not navigable in its natural state became so by the addition of water from the Sanitary District. This contention, was rejected by the Supreme Court, the court deciding, as we have seen, that the navigability of the river was to be determined by its natural condition and not by its condition created by artificial means. In resistance to this conclusion of the court and in assertion of a Federal right, plaintiffs in error cite, besides the acts of Congress referred to in the information certain acts of Congress passed in 1899, 1900 and 1902 appropriating money for "a survey and estimates of cost for the improvement of the upper Illinois and lower Des Plaines Rivers in Illinois, with a view to the extension of navigation from the Illinois River to Lake Michigan," and adduce, besides other recognitions by Congress of the navigability of the river, and contend that therefore, the rights of the State are based on Federal laws, and "that in its sovereign right, and as parens patriae and of its citizens, and on behalf of the citizens of all of the United States [italics counsel's], it had 523 the right under those Federal laws to prevent the accomplishment by defendant of an act destructive of the navigability of the stream." Plaintiffs in error state their contention another way. They say the acts of the two sovereignties, state and National, in furtherance of a common object, are so interwoven and related that the rights and questions arising from them, and the construction of their effect necessarily create Federal questions. But we have seen that the Supreme Court of the State decided there was no concurrence of the State in furtherance of the so-called common object, that is, that the various acts in regard to the Illinois and Michigan Canal or the Sanitary District did not include any general scheme for the improvement of the Des Plaines River, and it was certainly within the competency of the court to so determine. The court was also of the view that under the constitution of the State the State did not have the "sovereign right, and as parens patriae" to restrain the acts of defendant in error. The court seemed to consider that it had decided all of the contentions of the State when it had decided the question of the navigability of the river both in its natural condition and its condition after the addition of the waters of the Sanitary District. The fact was and is pivotal. The ordinance for the government of the Northwest Territory and the subsequent acts of Congress set out in the information do not determine navigability of the streams but only define rights which depend upon its existence. Passing the question, therefore whether the ordinance or the acts refer to physical obstructions or to political regulations, and also passing the question whether they were of force after the admission of the State into the Union (on both questions see Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1), the fact of navigability having been decided against the State by the state court, there is no Federal 524 right left to review. Crary, v. Devlin, 154 U.S. 619; Cameron v. United States, 146 U.S. 533; Egan v. Hart, 165 U.S. 188. In the latter case it was decided that the question of navigability is purely one of fact. It is said, however, that by the acts of 1899, 1900 and 1902 Congress has taken jurisdiction of the Des Plaines River. If so, the State is not the instrument through which the jurisdiction can be exercised. United States v. Bellingham Bay Boom Co., 176 U.S. 211; Willamette Iron Bridge Co. v. Hatch, supra; Cleveland v. Cleveland Electric Ry. Co., 201 U.S. 529. But the cited acts are not appropriations for improvements undertaken but for improvements which may be undertaken; not a jurisdiction exercised but a jurisdiction to be exercised. And, as we have seen, it is alleged in the answer, and the allegation is sustained by the evidence, that the plans of defendant in error's structure were submitted to the War Department and it was declared by that department, "The work proposed is in general harmony with the work of improvement recommended by the Board of Engineers appointed under the authority of the Rivers and Harbors Act of June 13, 1902 (32 Stat. 331, 334, c. 1079)." But the department, inasmuch as Congress had not authorized the improvement of the river, did "not deem it expedient to take further and definite action in the matter of approving the plans." It is manifest, therefore, that the State has no right under Federal laws which it may assert for itself or "on behalf of the citizens of all of the United States," and the motion to dismiss must be granted. Dismissed.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/98289/	235 U.S. 231 (1914) UNITED STATES v. NIXON, BIDDLE, AND WEST, RECEIVERS OF THE ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY. No. 427. Supreme Court of United States. Argued October 22, 1914. Decided November 30, 1914. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI. 232 Mr. Assistant Attorney General Underwood for the United States. Mr. W.F. Evans and Mr. W.S. Cowherd for defendants in error, submitted. MR. JUSTICE LAMAR delivered the opinion of the court. The Grand Jury for the Western Division of the Western District of Missouri returned an indictment against the St. Louis & San Francisco Railroad Company and its Receivers, charging that on August 16, 1913, Nixon, Biddle and West, as Receivers of said Company, were operating the property and business of said corporation as a common carrier of freight, and unlawfully transported cattle from a quarantine district in Oklahoma to Kansas City, Missouri, without compliance with the rules and regulations established by the Secretary of Agriculture. Both the indorsement and caption to this indictment described it as being for "violation of secs. 2 and 4 of the act of March 3, 1905, 33 Stat. 1264." Those sections of that act provide that "no railroad company . . . shall transport from any quarantine State . . . to any other State any cattle . . ." except "in compliance 233 with regulations promulgated by the Secretary of Agriculture." The defendants demurred on the ground "that the indictment does not charge any offense for which Receivers herein can be held." The court treated the indictment as founded on the act of 1905 imposing a penalty upon railroad companies and after argument sustained the demurrer filing a memorandum in which he held that, under the ruling in United States v. Harris, 177 U.S. 305, the statute did not create an offense for which Receivers could be punished. The case is here under the Criminal Appeals Act (34 Stat., 1246) on a writ of error in which the Government excepts generally to the quashing of the indictment and specially to the court's construction of this act of 1905. In view of the decision in United States v. Harris, the judgment of the court below would necessarily have to be affirmed if the case was to be determined solely by the provisions of the Quarantine Act of 1905, which imposes a penalty for the transportation of cattle by a railroad company. But a Receiver is not a corporation, and, therefore, not within the terms of a statute applicable to railroad companies, even though cattle from an infected district transported by him would be as likely to transmit disease as if they had been shipped over the same line while it was being operated by the company itself. And, no doubt in recognition of this fact, and in order to make the remedy as broad as the evil sought to be cured, Congress, by the act of March 4, 1913, c. 145, 37 Stat. 828, 831, made all of the provisions of the original quarantine act of 1905 "apply to any railroad company or other common carrier, whose road or line forms any part of a route over which cattle or other live stock are transported in the course of shipment" from a quarantine State to any other State. The statute, as thus amended, applied to transportation of live stock over short lines belonging to private individuals 234 or to lumber companies hauling freight for hire; to roads operated by Trustees under power contained in a mortgage; and also to the more common case where a railroad was being operated by a Receiver acting under judicial appointment. For in so far as he transports passengers and property he is a common carrier with rights and civil responsibility as such (Eddy v. Lafayette, 163 U.S. 456, 464; Hutchison on Carriers, § 77). And there is no reason suggested why a Receiver, operating a railroad, should not also be subject to the penal provisions of a statute prohibiting any common carrier from transporting live stock by rail from a quarantine district into another State. Erb v. Morasch, 177 U.S. 584; United States v. Ramsey, 197 Fed. Rep. 144. But it is said that the Amendment, buried in the Agricultural Appropriation Act of 1913, was unknown to the Grand Jury when the indictment was found and was not construed in deciding the motion to quash. And it is contended that, inasmuch as the Criminal Appeals Act only authorizes a review of a decision in so far as it was "based upon the . . . construction of the statute upon which the indictment is founded" (March 2, 1907, c. 2564, 34 Stat. 1246), the correct ruling that Receivers are not within the act of 1905 ought not to be reversed because it now appears that they are within the terms of the act of 1913 which was not brought to the attention of the District Judge and was not therefore construed by him in fact. It is pointed out that while there is a general assignment that the court erred in quashing the indictment, yet the Government itself specifically complains of the court's construction of the act of 1905 not the act of 1913. And to emphasize the fact that the indictment was not founded on the Amendment, attention is called to the fact that entries on the back and in the caption of the indictment describe it as being for "violation of Secs. 2 and 4 of the Act of March 3, 1905, 33 Stat. 235 1264," which apply to railroad companies and not to Receivers. These entries are useful and convenient means of reference and in case of doubt might possibly be of some assistance in determining what statute was alleged to have been violated. But these entries form no part of the indictment (Williams v. United States, 168 U.S. 382, 389) and neither add to nor take from the legal effect of the charge that the Receivers, while operating the business of the corporation as a common carrier, transported cattle "contrary to the form of the statute in such cases made and provided." What was that statute and on what statute the indictment was founded was to be determined as a matter of law from the facts therein charged. There is no claim that it was quashed because of any defect in matter of pleading, and that being true, the ruling on the demurrer that "the indictment does not charge any offense for which the Receivers can be held," necessarily involved a decision of the question as to whether there was any statute which punished the acts therein set out. In determining that question it was necessary that the indictment should be referred, not merely to the Act mentioned in argument, but to any statute which prohibited the transportation of cattle by the persons, in the manner, and on the date charged in that indictment. For the reasons already pointed out it was a misconstruction of the Act of 1913, to which the indictment was thus legally referred, to hold that Receivers acting as common carriers were not within its terms. Nor can a reversal be avoided by the claim that the act of 1913, though applicable to the facts charged in the indictment, had not been construed by the court. For within the meaning of the Criminal Appeals Act (34 Stat. 1246) the statute on which, as matter of law, an indictment is founded, may be misconstrued not only by misinterpreting *236 its language, but by overlooking its existence and failing to apply its provisions to an indictment which sets out facts constituting a violation of its terms. It is "a solecism to say that the decision that the acts charged are not within the statute is not based upon a construction of it." United States v. Patten, 226 U.S. 525, 535. It would, of course, be fairer to the trial judge to call his attention to the existence of the act on which the indictment was based (United States v. George, 228 U.S. 14, 18). Yet an indictment must set out facts and not the law; and when he sustained the demurrer on the ground that the shipment therein stated did not constitute a crime of which the Receivers could be convicted, he in legal effect held that they were not liable to prosecution if while operating a road as common carrier they hauled live stock from a quarantine State to another. In rendering that decision he made a ruling of the very kind which the United States was entitled to have reviewed under the provisions of the Criminal Appeals Act (34 Stat. 1246). If that were not so the right of the Government could in any case be defeated by entering a general order of dismissal, without referring to the statute which was involved or without giving the reasons on which the decision was based. The error can no more be cured by the fact that the existence of the statute was not called to the attention of the court than the Receivers, on the trial before the jury, could excuse themselves by proof that they did not know of the passage of the amendment which made it unlawful for them to transport cattle by rail from a quarantine State in interstate commerce. Judgment reversed. MR. JUSTICE McREYNOLDS took no part in the consideration and decision of this case.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/1299394/	616 S.E.2d 148 (2005) 273 Ga. App. 806 CORNELIUS v. The STATE. No. A05A0468. Court of Appeals of Georgia. June 21, 2005. Certiorari Denied October 3, 2005. 149 Rodney Zell, Zell & Zell, P.C., Atlanta, for appellant. Sandra Matson, Assistant District Attorney, Howard Simms, District Attorney, for appellee. BERNES, Judge. A Bibb County jury convicted Kendal Bernard Cornelius of one count of aggravated battery and two counts of aggravated assault with a deadly weapon. Cornelius appeals challenging the sufficiency of the evidence to support his convictions for aggravated assault and contending he was denied effective assistance of counsel. Finding no error, we affirm. We view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. We address only the sufficiency of the evidence, and do not weigh the evidence or determine the credibility of the witnesses. As long as there is some evidence, even though contradicted, to support each necessary element of the State's case, the jury's verdict will be upheld. Carter v. State[, 246 Ga.App. 891(1), 543 S.E.2d 42 (2000); see] also Jackson v. Virginia[, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)]. Maynor v. State, 257 Ga.App. 151, 151-152, 570 S.E.2d 428 (2002). So viewed, the record reflects that in October 2002, Cornelius provided $200 worth of cocaine to John Jerry Hunt in Macon. As part of the transaction, Hunt and his fiancee, Lana Renee Lambert, drove Cornelius to a local Western Union, ostensibly to pick up the money to pay Cornelius. On the pretext that Lambert would go into the Western 150 Union and get the money, Hunt had Cornelius get out of his single cab pickup truck in order to let Lambert out of the vehicle. However, Hunt then drove off, leaving Cornelius on the street and unpaid. Hunt returned to Macon to buy cocaine on December 16, 2002. Lambert again accompanied him, this time bringing her seven-year-old daughter as well. During the day, Hunt twice bought drugs in the neighborhood where he had gotten drugs from Cornelius in October. That evening, Hunt, along with Lambert and her daughter, drove back to the same neighborhood to make a third purchase. After initially circling the block, Hunt brought his truck to a stop when two men approached him from the curb of the street. At that point, Cornelius stepped between the two men, said "Remember me," and fired a handgun at close range four or five times into the cab of the truck. Hunt was hit, and as a result, was paralyzed in one of his legs. Hunt pushed Lambert's daughter to the floorboard of his truck as the shooting took place. Neither Lambert nor her daughter were hit. 1. Cornelius contends that there was insufficient evidence to convict him of the two counts of aggravated assault. The indictment alleged that Cornelius assaulted Lambert and her daughter with a deadly weapon by shooting at them. The offense of aggravated assault under OCGA § 16-5-21 has two essential elements: (1) that a simple assault under OCGA § 16-5-20 was committed on the victim and (2) that it was aggravated by . . . (b) use of a deadly weapon as provided in OCGA § 16-5-21. . . . Maynor v. State, supra at 153, 570 S.E.2d 428. "A person commits the offense of simple assault when he or she either . . . [a]ttempts to commit a violent injury to the person of another; or . . . [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20(a)(1), (2). Cornelius contends there was no evidence that he intended to shoot or shot at Lambert and her daughter or that he placed them in reasonable apprehension of immediately receiving a violent injury. We disagree. As an initial matter, Lambert testified that the perpetrator shot at her. Furthermore, in light of the testimony at trial concerning the number of rounds Cornelius fired into the confined space of Hunt's single cab pickup truck, the jury was authorized to conclude that Cornelius was shooting indiscriminately at the occupants of the truck. The jury was also authorized to "surmise" based on Lambert's testimony "that the victim[s]/witness suffered apprehension of being shot."[1]Roberts v. State, 267 Ga. 669, 671 (1), 482 S.E.2d 245 (1997). Any rational trier of fact could have found Cornelius guilty beyond a reasonable doubt of the offense of aggravated assault with a deadly weapon upon Lambert and her daughter. Jackson v. Virginia, supra. 2. Cornelius contends that he received ineffective assistance of counsel at trial because his trial counsel (a) failed to object to certain testimony provided by a Macon Police Department investigator; (b) elicited testimony from the investigator on cross-examination that was favorable to the State; and (c) failed to advise Cornelius of his right to plead not guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). To establish an ineffectiveness claim, the defendant must show that trial counsel's performance was deficient and that the deficiency prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d 362 (1985). Because Georgia does not recognize the cumulative error doctrine, we analyze each of Cornelius' claims of ineffective assistance separately under the Strickland standard. Howren v. State, 271 Ga.App. 55, 58(5), 608 S.E.2d 653 (2004). 151 (a) Cornelius argues that his trial counsel rendered ineffective assistance of counsel by failing to object to certain portions of a Macon Police Department investigator's testimony. He first contends his trial counsel should have objected to a response by the investigator that he argues expressed an opinion on the ultimate issue and impermissibly bolstered the State's evidence. On direct examination, the State's attorney asked the investigator if she had made "a decision about a possible suspect" after interviewing Lambert and three other witnesses. The investigator replied "That Lil K," who she had identified as Cornelius, "was responsible for shooting Mr. Hunt." At the motion for new trial hearing, Cornelius' trial counsel testified he did not object to the investigator's response because it "fit just right with . . . the strategy I had for trying to minimize Detective Aldridge's investigating process." Trial counsel explained his trial strategy was to show that the investigator had "jumped to the conclusion" that Cornelius was guilty and set out to develop facts to support her theory rather than following other leads based on the evidence, including several potential suspects with lengthy criminal records. Trial counsel noted that he had successfully employed this strategy in Cornelius' initial trial which resulted in a hung jury. Thus, pretermitting whether the investigator's response was objectionable as contended by Cornelius, trial counsel's failure to object did not constitute deficient performance. "Trial strategy and tactics do not equate with ineffective assistance of counsel. Inasmuch as the tactical decision was not patently unreasonable, the trial court did not err . . ." in rejecting Cornelius' claim on this ground. (Footnotes omitted.) Pickett v. State, 271 Ga.App. 250, 253, 609 S.E.2d 181 (2005). Cornelius also contends that his trial counsel should have objected to another portion of the investigator's testimony that he argues constituted a comment upon his post-arrest silence. The relevant testimony was as follows: Q: And what did you do to continue the investigation after Mr. Cornelius was arrested? A: I attempted to go speak with Mr. Cornelius at the jail. Q. Okay. Well, other than that, what did you do to continue the investigation? A: I went to him to find out who the other individuals were that were named or seen at the scene. . . . Cornelius asserts that the investigator's testimony implicitly commented on the fact that he had invoked his right to remain silent, since the investigator never stated whether he had answered her questions at the jail. "It has been held to be fundamentally unfair to simultaneously afford a suspect a constitutional right to silence following arrest and yet allow the implications of that silence to be used against him for either substantive or impeachment purposes. [Cits.]" Gordon v. State, 250 Ga.App. 80, 82, 550 S.E.2d 131 (2001). However, to reverse a conviction on this ground, "the evidence of the defendant's election to remain silent must point directly at the substance of the defendant's defense or otherwise substantially prejudice the defendant in the eyes of the jury." (Citation and punctuation omitted.) Taylor v. State, 272 Ga. 559, 561(2)(d), 532 S.E.2d 395 (2000). Even if the investigator traveled to the jail holding Cornelius in order to question him, the investigator's testimony does not reveal whether she was ever successful in actually arranging to meet with him and question him, much less that Cornelius chose to exercise his right to remain silent when questioned by her. It is a comment upon a defendant's silence by a witness which is impermissible under our law, not mere speculation or conjecture by a defendant that a jury could have inferred such a comment from the witness' testimony. Mallory v. State, 261 Ga. 625, 630(5), 409 S.E.2d 839 (1991). Under the circumstances of this case, we cannot say that the investigator's testimony involved an improper comment on Cornelius' exercise of his right to remain silent. Id. at 629, 409 S.E.2d 839; Gordon v. State, supra at 81, 550 S.E.2d 131; Taylor v. State, supra at 562, 532 S.E.2d 395. Consequently, trial counsel's failure to object to the testimony was not deficient. Hayes v. State, 262 Ga. 881, 884-885, 426 S.E.2d 886 (1993). 152 (b) Cornelius contends his trial counsel rendered ineffective assistance by eliciting damaging testimony from the investigator during cross-examination. Pursuant to trial counsel's inquiry, the investigator testified that one of the witnesses had stated he had seen Cornelius in possession of a Highpoint .380, the type of handgun used in the shooting. A review of the record reveals that trial counsel also elicited testimony from the investigator that another state's witness had stated Cornelius did not possess a Highpoint .380, but instead possessed another type of handgun. Trial counsel testified at the motion for new trial hearing that he purposely elicited the complained-of testimony in order to bring out inconsistencies in the accounts of the two witnesses. He explained: I had to figure out some way to limit any damage based on their ability to identify the exact kind of gun that everybody said Mr. Hunt . . . was shot with. . . . I tried to do that by saying . . . this other fellow had said it was a different kind of gun to show that back to the theory of the case was that. . . this was a conspiracy between drug dealers but they hadn't been able to conspire well enough to get all the details straight. . . . I tried . . . to show that you could have a conspiracy. . . based on just three or four guys saying, yeah, we did it but we're going to blame it on somebody else. . . . Those details are what I described in a closing as being the reasonable doubts. . . . We cannot say that trial counsel's strategy was unreasonable as a matter of law. "Effectiveness is not judged by hindsight or by the result." Wallace v. State, 228 Ga.App. 686, 691(4), 492 S.E.2d 595 (1997). Again, because "trial strategy and tactics do not equate with ineffective assistance of counsel," Cornelius failed to meet his burden of proving deficient performance as to this allegation. Pickett v. State, supra. (c) Finally, Cornelius argues that his trial counsel was ineffective because he failed to inform him of the possibility of entering a plea under North Carolina v. Alford, supra. By implication, Cornelius asserts that he was entitled to enter such a plea. However, "a defendant has no constitutional right to enter a guilty plea, and [Cornelius] points to no evidence that the trial court was willing to accept such a plea." (Footnote omitted.) Turley v. State, 265 Ga.App. 385, 387(2), 593 S.E.2d 916 (2004). See also North Carolina v. Alford, supra at 38, n. 11, 91 S.Ct. 160; Jackson v. State, 251 Ga.App. 578, 580(2), 554 S.E.2d 768 (2001). Furthermore, trial counsel testified at the motion for new trial hearing that Cornelius and his family members had rejected any possibility of entering a plea from his first involvement in the case, and that Cornelius had declined the offer of a plea bargain proposed by the State. "Under these circumstances, [Cornelius'] attorney was not deficient in failing to advise his client about Alford pleas." Turley v. State, supra. Judgment affirmed. BLACKBURN, P.J., and MILLER, J., concur. NOTES [1] Lambert testified that she was panicked and that her daughter remained on the floorboard until she pulled her up.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4204303/	IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT COMMONWEALTH OF PENNSYLVANIA : No. 107 MM 2017 : : v. : : : RICK LAVAR CANNON : : : PETITION OF: TIMOTHY T. ENGLER, : ESQUIRE : ORDER PER CURIAM AND NOW, this 18th day of September, 2017, in consideration of the Motion for Withdrawal of Counsel, this matter is REMANDED to the Court of Common Pleas of Lebanon County for that court to determine whether Petitioner’s current counsel should be granted leave to withdraw. See Pa.R.Crim.P. 120(B) (providing that a court must determine whether an attorney may be granted leave to withdraw). 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 Lebanon 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/1619272/	398 Mich. 527 (1976) 248 N.W.2d 149 GALLI v. KIRKEBY Docket No. 57159, (Calendar No. 8). Supreme Court of Michigan. Argued April 7, 1976. Decided December 21, 1976. Joseph N. Impastato for plaintiffs. Harvey, Kruse & Westen, P.C. (by James N. Martin and Phillip G. Alber) for defendants Warren Consolidated Schools and Olin L. Adams. KAVANAGH, C.J. We concur in the remand to the trial court for further proceedings. The defendants do not enjoy immunity. The day-to-day operation of a school is not a governmental function. LEVIN and FITZGERALD, JJ., concurred with KAVANAGH, C.J. WILLIAMS, J. This case requires us to revisit our recent governmental immunity decisions in Thomas v Department of State Highways, 398 Mich. 1; 247 NW2d 530 (1976), and McCann v Michigan, 398 Mich. 65; 247 NW2d 521 (1976). I. FACTS The case arises out of the alleged repeated homosexual attacks upon a minor student by a school principal. The question involved herein is whether the trial judge properly denied the defendant school board's motion for summary judgment based on governmental immunity. The board moved the trial court "to enter a 532 summary judgment of dismissal under rule 117 * * because the plaintiffs have failed to state a claim as to this defendant upon which relief can be granted". In such motion based on GCR 1963, 117.2(1), we must examine the facts as pleaded in the light most favorable to plaintiff to determine whether plaintiff has stated the elements of a cause of action. Durant v Stahlin, 374 Mich. 82; 130 NW2d 910 (1964). To state an actionable claim against the state, a pleader must plead facts in the complaint in avoidance of immunity. McCann, supra, (opinion of RYAN, J. at 77). The pertinent portions of the complaint are as follows: "3. That at all times herein complained, defendant Arthur H. Kirkeby was an agent and employee of the Warren Consolidated Schools and, in fact, the Principal of the Hatherly Elementary School, one of the said schools comprising the said Warren Consolidated Schools. * * * "5. That during the entire school year of September 1972 through June 1973 on numerous and repeated occasions, in excess of 100 occasions, in fact, defendant Arthur H. Kirkeby, took plaintiff minor into the storage room into the storage room in the Hatherly Elementary School and sexually assaulted plaintiff minor, forcing said child to submit to acts of indignity and human revulsion and forcing said child to perform acts of indignity and human revulsion, all too repulsive to set forth in this pleading. "6. That defendant Board of Education for the Warren Consolidated Schools owed a duty to the public and students to provide proper, competent, moral and capable personnel at their institutions of learning and said defendant failed so to do, and that, further, failed to supervise said personnel, failed to properly screen personnel before hiring, failed to properly investigate and 533 evaluate said personnel, failed to overview the actions of said personnel, and, in other words, employed an incompetent, improper and immoral servant who failed to carry out the obligations and duties imposed upon the defendant school board by force of law. "7. That as a direct and proximate result of the wrongful acts and misconduct of defendant, Arthur H. Kirkeby, and the negligent acts of defendant Warren Consolidated Schools for the Counties of Macomb and Oakland, Board of Education, suffered horrendous mental disturbances, traumatic neurosis, severe embarrassment, anxiety, hysteria, panic, humiliation, fear, shame, severe nervous reactions and depression, all of which injuries and maladies are permanent. "8. Said injuries caused plaintiff minor to suffer severe and excruciating mental and physical pain and does and will so continue to cause him to suffer for the remainder of his life and he has been and will throughout his life be hindered and disabled from carrying on a normal life, existence or occupation and said injuries caused plaintiff minor to be placed in the care of doctors, psychiatrists, hospitals and clinics and to suffer great medical and psychiatric expenses and will so cause him to continue medical and psychiatric treatments and to incur resultant expenses for the remainder of his life." Although the complaint is stated in one count, it appears that plaintiffs have pleaded, albeit inartfully, two separate torts against the defendant school board, each of which arose out of the alleged assaults. First, plaintiffs have alleged that the board is liable for its own negligence in failing to properly screen and supervise its personnel. Second, plaintiffs state that the board is vicariously liable for the assaults committed by its employee. For the reasons set forth below, we must measure each alleged tortious activity against the immunity standards. 534 II. APPLICABLE LAW As already indicated this case requires us to revisit Thomas and McCann. Pittman v City of Taylor, 398 Mich. 41; 247 NW2d 512 (1976), which denied governmental immunity to a school board where a student was injured by the explosion of chemicals negligently supplied by a school teacher, is not on point. The injury there was suffered during a period when there was no applicable governmental immunity statute. In this case there is a pertinent statute, as was true in Thomas. In Thomas, 8-9, we said: "The legislative provision for governmental immunity is contained in MCLA 691.1407; MSA 3.996(107). This section provides: "`Except as in this act otherwise provided, all government agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.'" (Emphasis added.) The question in Thomas was: "[W]hether the facts pled in this case, the death of an employee of a subcontractor who was engaged in the construction of a state highway when he was killed by falling earth when tunneling under a railroad right-of-way, deal with a `case[s] wherein the government agency is engaged in the exercise or discharge of a governmental function' as provided by statute." 8. We concluded in Thomas "that the activity involved in this case must be regarded as a governmental 535 function under the statute and that as a result the defense of governmental immunity is available to the State Highway Department" (emphasis added) 12. In other words the statutory test focused not upon the general type of work the department performed but upon "the activity involved in this case", the "tunneling under a railroad right-of-way" by the employee of a subcontractor in building a road. The test was followed and developed in McCann. The question in McCann was whether a state mental hospital, some of whose employees allegedly put a newspaper publisher out of business through pressures on advertisers and subscribers, was shielded by governmental immunity from possible vicarious liability. In four opinions, seven justices concluded that neither the hospital nor the employees were immune. Four justices remanded to determine whether there was vicarious liability and three justices held there was not vicarious liability. Justice FITZGERALD, in his opinion also signed by Justice COLEMAN and Justice LINDEMER, applied the test this way: "We agree that the question of governmental immunity should not be considered because the complained-of activity does not fall within `the exercise or discharge of a governmental function.'" 83. (Emphasis added.) Justice WILLIAMS in his opinion signed only by himself applied the test as follows: "[W]e find that defendant state agency's employees were clearly engaged in ultra vires activity and were not, therefore, involved `in the exercise or discharge of a governmental function.'" 73-74. 536 Justice RYAN in his opinion signed only by himself stated the test as follows: "We look to the facts pleaded in the complaint to determine whether the specific tortious activity alleged against the state or its agencies is within the protection of the immunity doctrine." (Emphasis added.) 80. The quoted language from McCann and Thomas makes it abundantly clear that the test is not whether the governmental unit is generally "engaged in the exercise or discharge of a governmental function". The dispositive test is whether "the activity involved in this case" (Thomas), "the complained-of activity" (FITZGERALD'S McCann), or "the specific tortious activity alleged" (RYAN'S McCann) is within "the exercise or discharge of a governmental function". In short, the test of whether a governmental agency can claim immunity under the statute is whether the specific activity alleged against the governmental defendant falls within "the exercise or discharge of a governmental function". Both parties have referred to Lovitt v Concord School District, 58 Mich. App. 593; 228 NW2d 479 (1975). The operative facts in Lovitt were that teacher-coaches had run a particularly severe football practice session in August heat and a student died of heat prostration. That Court held the school district superintendent and principal clothed in governmental immunity. However, that Court held that the negligence of teacher-coaches was personal and as a consequence they did not enjoy governmental immunity. The Lovitt test is not the test set forth in Thomas and McCann and to the extent it differs it is overruled. The proper test for governmental immunity is whether the complained of activity 537 falls within "the exercise or discharge of a governmental function". With respect to the question of whether statutory governmental immunity extends to the employee, we find that the issue is not presented in this appeal and express no opinion. III. APPLICATION OF LAW TO FACTS We first address the question of whether the school board is immune from suit for its own negligence in allegedly failing to exercise due care in the hiring and supervision of Mr. Kirkeby. We have held that the hiring of teachers by a school board in the course of providing public education is a governmental function. Daniels v Board of Education of Grand Rapids, 191 Mich. 339; 158 N.W. 23 (1916). See also Daszkiewicz v Detroit Board of Education, 301 Mich. 212; 3 NW2d 71 (1942). Likewise, we find that the screening, hiring and supervision of school district personnel by the board in the course of its educational function was an act "in the exercise or discharge of a governmental function". We hold, therefore, that plaintiffs have not stated an actionable claim against the board for liability for its own negligence, and summary judgment should have been granted as to that "count". We next consider whether the school board is immune from suit with respect to the alleged tortious activity of its employee. No one will seriously argue that the intentional homosexual assault of a school principal upon a student falls within "the exercise of a governmental function". We hold it does not. The intentional homosexual assault of a school principal upon a school boy even on school time 538 and on school property is not the same thing as negligent tunneling in road construction as in Thomas. Rather the facts in this case are clearly analogous in principle to the facts in McCann. In both this case and McCann a governmental agency is involved whose normal operation is "the exercise or discharge of a governmental function".[1] However, in both cases an employee of the governmental agency engages intentionally in allegedly tortious action that bears no arguable relationship to the agency's function. IV. CONCLUSION We hold that the trial court should have granted the defendant school board's motion for summary judgment on the question of the board's negligence, and that the trial court correctly denied the motion with respect to the alleged intentional tort. Under this disposition the matter returns to the trial court for further action not inconsistent with this opinion. McCann implies that the next question is whether vicarious liability lies against the defendant school board under the doctrine of respondeat superior. Since the issue was neither raised nor briefed, we do not here consider it. Affirmed in part, reversed in part, and remanded to the trial court for further proceedings not inconsistent with this opinion. RYAN, J., concurred with WILLIAMS, J. COLEMAN, J. "Hard cases make bad law." This is a "hard" case and there is a temptation to bend the law to accommodate plaintiffs. However, statutory law can lose direction and be diverted from 539 its purpose when unduly strained to assist plaintiff or defendant in a given case. Such is our problem here. Plaintiff Mark Galli allegedly was molested by his school principal, Arthur H. Kirkeby, one of defendants in the circuit court case, during the 1972-1973 school year. The appeal, however, is brought only by defendants Warren Consolidated Schools for the Counties of Macomb and Oakland, Board of Education, and Olin L. Adams (School Administrator). Leave to appeal was granted primarily to consider the question of whether the school board and school administrator for the Warren Consolidated Schools were immune from tort liability or were vicariously liable for an intentional tort of an employee. Because the Legislature has provided that "all governmental agencies" are immune "from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function", we must reverse the trial court denial of defendants-appellants' motion for summary judgment which we treat as a motion for accelerated judgment. I Plaintiffs allege in their amended complaint of June 10, 1974 that defendant Kirkeby (not a party to this appeal) sexually assaulted Mark Galli "on numerous and repeated occasions" in a school storage room during the 1972-1973 school year. Plaintiffs claim damages for Mark Galli in the amount of $1,000,000 and for the parents, individually, $500,000 plus interest, costs and attorney fees. Plaintiffs' complaint alleges that the board of 540 education (and Mr. Adams[1]) negligently breached "a duty to the public and students to provide proper, competent, moral and capable personnel at their institutions of learning". Defendants moved for summary judgment claiming "that under the law of this state a school board is immune from liability". The trial judge denied the motion for summary judgment. The Court of Appeals denied leave to appeal and denied a motion for rehearing. II The 1970 legislative provision for governmental immunity[2] is found in MCLA 691.1407; MSA 3.996(107) and is applicable to these facts:[3] "Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed." MCLA 691.1401; MSA 3.996(101) specifies that school districts are within the definition of "governmental agency". Therefore, plaintiffs have the burden of stating in their complaint facts in avoidance of immunity. In other words, plaintiffs must allege in their 541 complaint facts which would justify a finding that the alleged tort with which defendants are charged does not fall within the concept of governmental immunity. Defendants-appellants' conduct at issue here is their hiring and/or supervising of school personnel.[4] Justice WILLIAMS recently wrote in Thomas v Department of State Highways, 398 Mich. 1; 247 NW2d 530 (1976), that the "key to determining the applicability of the immunity defense[5] is in ascertaining whether or not the particular case is one" where the agency was exercising or discharging a governmental function. The Court also found that the Legislature "intended that the activities described as governmental functions at common law at the time of the enactment of the new legislation would enjoy statutory immunity from tort liability". In Daniels v Board of Education of Grand Rapids, 191 Mich. 339, 348-349; 158 N.W. 23 (1916), the Court said: 542 "As applied to those States where liability is not expressly created by statute the overwhelming weight of authority sustains the following concise statement of the general rule upon the question before us: "`The duty of providing means of education, at the public expense, by building and maintaining school houses, employing teachers, etc., is a purely public duty, in the discharge of which the local body, as the State's representative, is exempt from corporate liability * * .' 2 Shearman & Redfield, Negligence (6th ed), § 267." (Emphasis added.) Also see Daszkiewicz v Detroit Board of Education, 301 Mich. 212, 220; 3 NW2d 71 (1942). See generally Anno, Modern Status of Doctrine of Sovereign Immunity as Applied to Public Schools and Institutions of Higher Learning, 33 ALR3d 703, and 57 Am Jur 2d, Municipal, School, and State Tort Liability, p 1. Statutory exceptions have since eliminated immunity concerning building maintenance and repairs[6] but the remainder continues in vitality. It cannot be seriously argued that hiring and/or supervising of school personnel and making of relevant policy are not governmental functions. Neither can it be seriously argued that Mr. Kirkeby's alleged sexual activities come within his function 543 as a school principal. He was acting beyond the scope of his employment. He is not clothed in governmental immunity as an agent carrying out his prescribed duties. The alleged activities were solely personal and cannot come within the immunity provided to the other defendants. However, the key problem does not concern defendant Kirkeby's liability. It concerns the liability of the school board and the administrator who were discharging a governmental function. III Plaintiff argues the applicability of some cases grounded on the constitutional mandate that "[p]rivate property" cannot be taken without "just compensation" (1963 Const, art 10, § 2).[7] We cannot in good conscience apply that constitutional prohibition to an area clearly not within the intent of the article which is entitled "Property". Section 2 has to do with eminent domain. The convention comment submitted to the people when the constitution was approved states, in speaking of § 2, that it was deemed a "sufficient safeguard against taking of private property for public use". The convention noted that the section contains provisions for "proper procedures for the acquisition of private property". 2 Official Record, Constitutional Convention 1961, What the Proposed New State Constitution Means to You, p 3403. 544 IV In a case factually similar to the one at bar, the Court of Appeals, Judge DANHOF writing, found the school district, superintendent and principal clothed in immunity, but the negligence of defendant teachers-coaches to be personal, thereby removing them from the protection of governmental immunity. Lovitt v Concord School District, 58 Mich. App. 593, 602; 228 NW2d 479 (1975). In Lovitt, the teachers-coaches had required a particularly severe football session in August heat. Plaintiff had died of heat prostration as a result. The Court cited with approval 22 Callaghan's Michigan Civil Jurisprudence, Schools and Education, § 148, p 194: "`The immunity which attaches to the performance of a governmental function protects not only the incorporate district or board of education, but also the individual members of the board, or school officers, who execute that function, where the duty that is breached is one that is imposed on the entity and not the individual. "`Where, however, the injuries for which redress is sought are attributable to the individual tort or negligence of a particular official, agent, or employee, the person himself is liable although the district or board is not.'" Similarly, Mr. Kirkeby may be personally liable for the injury which he personally committed outside the scope of his employment. Mr. Adams cannot be held individually liable and neither the school board nor Mr. Adams can be held corporately liable under the law as it exists. V Plaintiff also pleads public nuisance, but the 545 facts do not support that legal concept. Being without merit, it is not further discussed. VI CONCLUSION The school board and Mr. Adams at all times were acting within the exercise of their duties. The applicable statute grants immunity to school districts from tort liability in all cases in which it is acting within its governmental function with certain exceptions, none of which apply to these facts. We must not confuse Mr. Kirkeby's personal liability with that of the others. In clear language, the Legislature has spoken. If it finds it better public policy to exclude governmental units from immunity in cases where employees act outside of their scope of employment and commit personal offenses, the Legislature should act accordingly. To be considered would be the impact upon school board members and school administrators made to assume responsibility for hundreds or thousands of teachers and other employees for personal aberrations outside of the realm of their governmental functions. If the Legislature does provide for such liability, the school districts should have notice so that they may seek adequate insurance or, if none is available, they may establish within the budget a fund to cover such various personal excursions of employees as here alleged. Reverse and remand for proceedings consistent with this opinion. LINDEMER, J., concurred with COLEMAN, J. NOTES [1] The Chief Justice and Justice LEVIN do not "believe the day to day operation of a [mental] hospital is a governmental function." 71. [1] Kirkeby was hired by the Warren Consolidated Schools in 1966 and discharged in 1972. Adams was hired in 1970. [2] 1970 PA 155. [3] Plaintiffs argue continuing tort from a time prior to the statute. The argument is rejected as to plaintiffs. No tort as to Mark Galli is alleged to have occurred prior to 1972. [4] Section 7 of plaintiff's amended complaint states the alleged wrongdoing of defendants-appellants: "That defendant Board of Education for the Warren Consolidated Schools and defendant Olin L. Adams, individually and as Supervisor for the Warren Consolidated Schools, owed a duty to the public and students to provide proper, competent, moral and capable personnel at their institutions of learning and said defendants failed so to do, and that, further, they failed to supervise said personnel, failed to properly screen personnel before hiring, failed to properly investigate and evaluate said personnel, failed to overview the actions of said personnel and, in other words, employed an incompetent, improper and immoral servant who failed to carry out the obligations and duties imposed upon the defendant school administrator and defendant school board by force of law." A second amended complaint incorporated by reference a prayer for specific damages (count I) and a count pleading public nuisance (count II). [5] Governmental immunity is not actually a defense although frequently expressed as such. It is a characteristic of government which plaintiff must avoid. [6] The legislative exceptions may arise (1) from failure to keep any highway under the particular agency's jurisdiction in "reasonable repair, and in condition reasonably safe and fit for travel" (MCLA 691.1402; MSA 3.996[102]), (2) from "negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is the owner" (MCLA 691.1405; MSA 3.996[105]), or (3) "from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect" (MCLA 691.1406; MSA 3.996[106]). Further, proprietary functions of the agencies are excluded from immunity. (MCLA 691.1413; MSA 3.996[113]). There is no exception even for neglect with knowledge. None of the statutory exceptions apply to this case, nor are they pled in the complaint. [7] Herro v Chippewa County Road Commissioners, 368 Mich. 263; 118 NW2d 271 (1962); Buckeye Union Fire Insurance Co v Michigan, 383 Mich. 630; 178 NW2d 476 (1970). For an old but interesting discussion of this question of a taking without adequate compensation see Pumpelly v Green Bay Co, 80 US (13 Wall) 166, 181; 20 L. Ed. 557 (1871).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619254/	71 Mich. App. 618 (1976) 248 N.W.2d 641 PEOPLE v. WESTERFIELD Docket No. 23522. Michigan Court of Appeals. Decided October 19, 1976. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Charles P. Kellett, Assistant Prosecuting Attorney, for the people. Keller & Svenson, for defendant. Before: D.E. HOLBROOK, P.J., and BRONSON and D.C. RILEY, JJ. BRONSON, J. Defendant was convicted after a bench trial of receiving or concealing stolen property of a value greater than $100. MCLA 750.535; MSA 28.803. He was sentenced to a term of one year in the Detroit House of Correction. He now appeals by right. Defendant was arrested for unlawfully driving away a motor vehicle, MCLA 750.413; MSA 28.645, when he and three other youths were found hiding in the vicinity of a 1957 Chevrolet that had been stolen. His arrest arose solely from his connection with this Chevrolet. Police ascertained that the youths had arrived on the scene in a 1966 Thunderbird that defendant claimed to own. In the rear of the Thunderbird, police found bolt cutters and a lock slammer, tools described as car thieves' tools. 620 The police seized the Thunderbird and, after inspection, noted that the vehicle identification number (VIN) plate on the door appeared to have been recently affixed. In verifying that the Thunderbird's license plates had been issued to defendant, they discovered that the typewritten serial number on his registration had been altered by pen. The penned-in registration number conformed with the suspicious VIN number that was found on the car's door. The police, suspecting that the Thunderbird's door plate VIN was not the original, searched for a "confidential number". This number had been ground off, but police experiments enabled them to reconstruct the confidential number. This number did not match the door plate VIN. A check of confidential numbers revealed that a Thunderbird with that number had been reported as stolen by a Ms. Porenda 15 days prior to the arrest of defendant for the Chevrolet offense. On the basis of this investigation, defendant was arrested for receiving and concealing stolen property. Ms. Porenda testified at trial that she had turned down offers of $800 and $1,000 for the car shortly before it had been stolen. She testified that the car was in excellent shape when it had been stolen but that when it was returned to her, the ignition had been changed, the starter didn't work, the wiring was out of commission, the interior lights had been pulled out, and the seat belts had been ripped up. Defendant testified that he had purchased the Thunderbird in Detroit from a friend two days prior to his arrest, not knowing that it was stolen. He admitted to having paid only $350 for the car and that he had reported to the Secretary of State that he had paid $75 for it. He acknowledged that 621 he had no use for the bolt cutters or the lock slammer in his work and was unable to give any explanation for having them in his possession. In addition, he acknowledged that he had registered the car in Albion, Michigan, although he lived in Detroit, had no relatives in Albion, and gave no explanation of why he went all the way to Albion to register the car. On appeal, defendant asserts that insufficient evidence was presented at trial to establish the elements of the offense of which he was convicted. Specifically, defendant claims that the element of guilty knowledge was not established at the trial below. We disagree. There is no question but that an essential element of the offense charged here is that of the defendant's guilty knowledge at the time he received the property, or aided in its concealment. To be guilty of this offense, defendant must have received the car in question knowing it to have been stolen. People v Tantenella, 212 Mich. 614, 619; 180 N.W. 474 (1920). See, also, People v Brewer, 60 Mich. App. 517; 231 NW2d 375 (1974), People v McLott, 55 Mich. App. 198; 222 NW2d 178 (1974), and People v Kyllonen, 66 Mich. App. 467; 239 NW2d 410 (1976). Guilty knowledge, as with most states of mind, cannot generally be proved by direct evidence absent admission by the defendant. By the very nature of the element, it must usually be inferred from all of the various circumstances of the case. Thus, in Tantenella, supra, 621, it was said: "Guilty knowledge means not only actual knowledge, but constructive knowledge, through notice of facts and circumstances from which guilty knowledge may fairly be inferred." The evidence held sufficient to prove guilty 622 knowledge in Tantenella was in many ways strikingly similar to the evidence presented in the instant case. There the Supreme Court, in finding that sufficient evidence of guilty knowledge had been presented to sustain a jury verdict of guilty, relied in part on the fact that defendant had come into possession of the stolen car shortly after it was stolen, that the car's condition had been changed, that the defendant possessed a fictitious bill of sale for the car, and the fact that the identification number on the motor of the car had been altered. Similarly, in this case, the condition of the vehicle itself contradicts defendant's assertion that he was an innocent and unsuspecting purchaser. The vehicle identification number (VIN) plate on the door showed visible signs of recent tampering, and the car's wiring and interior lights were out of commission. The VIN number on the car registration had been noticeably altered. Defendant had purchased the car within a relatively short time after it had been stolen. In addition, here the defendant admitted at trial that he had paid only $350 for the car, a suspiciously low price in view of the car owner's testimony that she had recently turned down offers of $800 and $1,000 for the car, and defendant had reported to the Secretary of State that he had paid $75 for the vehicle. Moreover, this defendant was found to be in possession of tools commonly used for stealing cars, had no use for the tools in his work, and was unable to give any explanation for having them. He apparently went far out of his way to register the car in out-state Michigan and was unable to offer an explanation for doing so. The combination of all of these various facts and circumstances provides substantial support for an inference that defendant knew the car was stolen when he received it. 623 Upon reviewing findings of fact by a judge sitting without a jury in a criminal case, we do not reverse unless, on the entire record, we are left with the definite and firm conviction that a mistake has been committed. People v White, 53 Mich. App. 51, 55; 218 NW2d 403 (1974), People v Hubbard, 19 Mich. App. 407; 172 NW2d 831 (1969), aff'd, 387 Mich. 294; 196 NW2d 768 (1972). See, also, Tuttle v Department of State Highways, 397 Mich. 44; 243 NW2d 244 (1976). We are required to give special regard to the trial court's opportunity to judge the credibility of witnesses. GCR 1963, 517.1. We are not persuaded that a mistake was made. Defendant also challenges the sufficiency of the evidence presented at the preliminary examination. However, this issue was not raised prior to or at trial and cannot be raised for the first time on appeal. People v Lutzke, 68 Mich. App. 75, 78; 241 NW2d 765 (1976), People v Miller, 62 Mich. App. 495; 233 NW2d 629 (1975). Defendant finally asserts that he is entitled to resentencing, arguing that the circumstances surrounding the imposition of sentence in this case deprived him of due process and his Fifth Amendment right to remain silent. The record reveals that the trial judge, after finding defendant guilty as charged and after setting a sentencing date, advised defendant as follows: "The Court: * * * Now the probation department is going to set up a probation hearing for you, you had better be very frank with them. I am going to be kind of interested in knowing where you learned to take care of a car in this manner. And keep in mind that you can be sentenced up to five years on this." At the sentencing proceedings, immediately after 624 defense counsel had presented an argument as to why defendant would be a good risk for probation, the trial judge began to question the defendant about where he had learned the business of stealing cars, removing VIN numbers and why defendant was carrying tools for stealing cars in his automobile. Defendant asserted that he had learned the business of stealing cars from the juveniles who were with him when he was arrested, that a man named Bubba, whose last name defendant did not know, was responsible for removing the VIN numbers, and that defendant himself knew nothing about the process of removing VIN numbers or where Bubba did this work. The trial judge indicated that he thought it more likely that defendant was teaching the juveniles the business of stealing cars, indicated that he did not believe that defendant knew as little about Bubba as he claimed, and that he doubted defendant's assertion of ignorance of the process of removing VIN numbers. In the course of the questioning defendant stated that he had not stolen the 1966 Thunderbird for possession of which he was on trial, but admitted having known that the car was stolen. He also admitted having previously stolen five or six other cars. The court imposed sentence as follows: "The Court: Well, it is the sentence of this Court that you be sentenced to the Detroit House of Correction for a period of one year, and part of the reason you are doing that one year is because I don't believe anything you are telling me. "I told you at the time you were found guilty that you better be prepared to be honest with me about these cars, and I don't believe anything you have told me. 625 "Defendant: I am being honest. "The Court: All right, one year in the Detroit House of Correction." Since the trial judge frankly stated that the sentence which he was imposing was in part due to his disbelief of defendant's answers to his questions, the question presented at this time is whether a sentencing judge may aggravate the sentence imposed on a convicted defendant because of what he perceives to be the defendant's failure to confess fully to other possible criminal behavior. We hold that he may not. In People v Grable, 57 Mich. App. 184; 225 NW2d 724 (1974), this Court held that a sentencing judge could not increase the sentence imposed for the reason that the defendant refused to admit his guilt of the offense of which he had been convicted. The defendant in that case had maintained his innocence throughout the trial and continued to do so after conviction. It was held that he had a right to do so without penalty. Grable, supra, 188-189. The instant case differs from Grable in that here the sentencing judge was successful in eliciting an admission of guilt of the charged offense from the defendant, despite defendant's proclamations of innocence at trial. While Grable clearly indicates that it was error for the court to compel this admission by threatening defendant with the higher sentence, here the trial judge went even farther and increased defendant's sentence on this conviction because he did not believe that defendant had fully confessed to other offenses for which he had never even been charged. Moreover, the procedure employed in the instant case raises a serious question as to whether defendant was sentenced on the basis of accurate *626 information. Since the trial judge enhanced defendant's sentence because he did not believe defendant's confession as to his involvement in other criminal activity was complete, although defendant asserted that he was being honest, it is apparent that, in effect, defendant's sentence was increased because of the trial court's belief that defendant was guilty of offenses which defendant denied. There was no proof to support this conclusion by the trial court. A sentence based on such considerations amounts to a denial of due process. People v Zachery Davis, 41 Mich. App. 683; 200 NW2d 779 (1972), People v Perine, 7 Mich. App. 292; 151 NW2d 876 (1967), People v Grimmett, 388 Mich. 590; 202 NW2d 278 (1972). A sentencing judge has a duty to ascertain, upon objection by a defendant, that the defendant is not prejudiced in sentencing by false information. People v McIntosh, 62 Mich. App. 422; 234 NW2d 157 (1975). That duty is not fulfilled where, as here, a convicted defendant is sentenced on the basis of assumptions of fact based on no proof and inconsistent with defendant's version of the facts. Affirmed. Remanded for resentencing before a different judge. We do not retain further jurisdiction.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619122/	72 Mich. App. 35 (1976) 248 N.W.2d 680 PEOPLE v. YENNIOR Docket No. 26115. Michigan Court of Appeals. Decided October 20, 1976. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Edward B. Meth, Prosecuting Attorney, for the people. Faintuck, Shwedel, Roether, Wolfram & McDonald, for defendant. Before: R.M. MAHER, P.J., and D.C. RILEY and R.M. RYAN,[] JJ. 37 R.M. MAHER, P.J. Defendant, after a jury trial, was found guilty as charged on a count of delivery of a controlled substance, phencyclidine, MCLA 335.341(1)(b); MSA 18.1070(41)(1)(b). The court imposed a sentence of 14 months to 7 years imprisonment. This Court granted defendant's application for delayed appeal, filed after the trial court denied defendant's motion for a new trial or resentencing. This appeal raises two questions: Did the court improperly consider the fact that defendant did not admit guilt when it imposed sentence? Did the court improperly ignore defendant's antecedents, character and circumstances when it imposed sentence? An affirmative answer to either question would require that defendant be resentenced. As trial courts frequently acknowledge, they are faced with few tasks as difficult as sentencing. Sentencing, quite often the last and most important contact a defendant has with the judicial system, is the most neglected stage of criminal proceedings. "The dilemma of the American sentencing judge is qualitatively unique. Because our system of criminal justice has embraced to a degree unequaled elsewhere the rehabilitative ideal that punishment should fit not the crime, but the particular criminal, the sentencing judge must labor to fulfill the dual and sometimes conflicting roles of judge and clinician. Entrusted with enormous discretion, he is expected to `individualize' the sentence he imposes to suit the character, social history, and potential for recidivism of the offender before him. Yet, because of the general absence in our system of meaningful procedures for the appellate review of sentences, he is denied standards by which to determine any particular sentence or by which to learn what decisions his fellow judges have reached in similar situations." Coffee, The Future of Sentencing Reform: 38 Emerging Legal Issues in the Individualization of Justice. 73 Mich L Rev 1362, 1362-1363 (1975). Very little guidance for sentencing courts can be found in the statutes and court rules. In MCLA 769.8; MSA 28.1080, the Legislature, as authorized by Const 1963, art 4, § 45, has directed sentencing courts to impose indeterminate sentences. The statute states that the sentencing judge "shall before or at the time of passing such sentence ascertain by examination of such convict on oath, or otherwise, and by such other evidence as can be obtained tending to indicate briefly the causes of the criminal character or conduct of such convict." Similar vagueness is found in the statute requiring the probation department to provide the sentencing court with a presentence report. MCLA 771.14; MSA 28.1144 states that "the probation officer shall inquire into the antecedents, character and circumstances of such person [the defendant] * * and shall report thereon in writing" to the sentencing court. The sentencing court, then, must try to utilize his discovery of "the criminal character or conduct of such convict" and the probation officer's report on "the antecedents, character and circumstances of such person" in deciding what sentence it shall impose. The court may choose probation, available in all but a few very serious crimes, "where it appears to the satisfaction of the court that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant shall suffer the penalty imposed by law." MCLA 771.1; MSA 28.1131. GCR 1963, 785.8 says nothing about the factors the sentencing court should consider. It properly limits itself to procedural matters, including the 39 right of defendant and his lawyer "to advise the court of any circumstances they believe the court should consider in imposing sentence". While appellate courts have clearly stated the objectives of the indeterminate sentencing scheme, they have provided little or no guidance on how to best achieve the objectives of "rehabilitation of the individual offender, society's need to deter similar proscribed behavior in others and the need to prevent the individual offender from causing further injury to society", People v Lorentzen, 387 Mich 167, 180; 194 NW2d 827, 833 (1972). Whatever guidance appellate courts have provided has usually been in the form of a rebuke, pointing out what a court should not have considered when it exercised its sentencing discretion. An instance of such guidance is People v Grable, 57 Mich App 184; 225 NW2d 724 (1974), in which a panel of this court stated: "[W]e believe that an accused has the right to maintain his innocence after conviction. No additional penalty is to be imposed for continuing to proclaim one's innocence." 57 Mich App at 188-189. The case was remanded for resentencing because defendant's refusal to change his story at sentencing, despite questioning by the court, may have enhanced the sentence imposed. Grable, unfortunately, offers little analysis and cites no authority on what constitutes improper sentencing considerations. In the recent case of People v Gray, 66 Mich App 101; 238 NW2d 540 (1975), defendant, as does defendant in the case now before us, relied on Grable in asserting that he was improperly sentenced. In Gray, this Court rejected the contention that it was error for the sentencing court to consider 40 defendant's lack of remorse. After pointing out that a presentence report informing the court of defendant's "antecedents, character and circumstances" is required, the opinion observes that: "It would seem that a defendant's failure to express any remorse or regret at all concerning a prior conviction, or concerning his commission of a crime which he does not deny, would be a very relevant facet of his character. It may be noted by the probation officer. It may be taken into account by a sentencing court. We therefore hold that, if indeed the trial court did consider defendant's lack of remorse in passing sentence, such was not error." 66 Mich App at 110-111. Defendant Gray had taken the stand at trial and offered a story inconsistent with guilt. The mention that he did not deny his crime should not be used to conclude that he acknowledged his guilt yet remained unremorseful. In Gray, Grable was distinguished as a case in which the court attempted to get defendant to admit guilt and, failing in its attempt, enhanced his sentence. A broader reading of Grable would not be justified; the facts presented in Grable indicate that it was unnecessary for the court to decide whether, in all instances, it is improper for a sentencing court to give any consideration to whether a defendant accepts responsibility or shows remorse for his crime. The error requiring resentencing in Grable was the court's attempt to reopen, at sentencing, the fact-finding process that a finding of guilt terminated.[1] See People v Towns, 69 Mich App 475; 245 41 NW2d 97 (1976). At sentencing, the court is bound by the earlier determination of guilt. Questions directed to defendant concerning his involvement in the crime for which he has been convicted place defendant in a bind. If he cooperates and gives the answers the court obviously seeks, he may jeopardize his right to appeal or a motion for a new trial. Miler v United States, 255 A2d 497 (DC Ct of App, 1969). If he continues to assert his innocence in the face of questioning (we note that juries are not infallible, they are only conclusive), he runs the risk of encouraging a spiteful sentence. A good example of this second alternative is found in Poteet v Fauver, 517 F2d 393 (CA 3, 1975). How a defendant views the criminal activity that his conviction has established can be helpful to a court that must evaluate a defendant's "antecedents, character and circumstances". We think there is more than semantics involved in distinguishing between properly giving consideration to remorse or its absence at sentencing and improperly penalizing an assertion of innocence at sentencing. In People v Bottany, 43 Mich App 375, 385; 204 NW2d 230 (1972), Justice (then Judge) LEVIN quoted from the concurring opinion of Judge Leventhal in Scott v United States, 135 US App DC 377, 395; 419 F2d 264, 282 (1969): "`It is not easy for me to define why I concur in a judgment of remand. There is a natural, and I believe sound, disposition to adjust sanctions when an offender admits his responsibility. This blends in with a readiness to accept the conclusion that such a person has the stuff that portends future improvement. I dare say that many judges, possibly the overwhelming majority, respond in this way, and I am not ready, at least as of this writing, to say that their approach is inadmissible. The wellsprings of human experience are known to every parent concerned with bringing up children, and 42 who has invoked, consciously or not, Parson Weems' account of George Washington and the cherry tree. "`What we have before us is the difference of degree that amounts to a difference in kind. There is a line between responding favorably to an individual's sincere expression of remorse, and reacting in a hostile way because of a personal belief in the guilt of one who maintains his innocence and seeks review of the judgment.'" (Emphasis supplied.) This view, of course, presents no justification for a court to harass a defendant into admitting criminal complicity at sentencing. An admission of guilt under pressure offers no insight into defendant's character that would be helpful to the sentencing court. When a defendant is aware that his responses will determine his sentence, his admission cannot evidence contrition. It does not take a sophisticated knowledge of psychology to appreciate what Chief Judge Bazelon wrote in Scott v United States, supra, 135 US App DC at 384; 419 F2d at 271, "[W]ith the inducement of a lighter sentence dangled before him, the sincerity of any cries of mea culpa becomes questionable." In opinions of the Wisconsin Supreme Court, the distinction has been made between using an expression of remorse in mitigation of a sentence and considering a lack of remorse in sentencing. The former practice has been held permissible by the Wisconsin court, see State v Tew, 54 Wis 2d 361; 195 NW2d 615 (1972), McCleary v State, 49 Wis 2d 263; 182 NW2d 512 (1971), while the latter has been disapproved. Scales v State, 64 Wis 2d 485; 219 NW2d 286 (1974). We see no benefit in making this distinction. If it is permissible for a court to view expressions of remorse "as indicative of the likelihood that the rehabilitory process hoped for in the criminal law has commenced," 43 Scales v State, supra, 64 Wis 2d at 497; 219 NW2d at 293, why cannot a lack of remorse be considered in projecting the course the rehabilitory process will take. Certainly a court will note the absence of a factor which might, if it were present, encourage the court to impose a particular sentence. At sentencing in the instant case, the court made no attempt to elicit an admission of guilt from defendant. After a lengthy plea from defendant's attorney that the court grant defendant probation, the court offered defendant his right of allocution. Defendant simply responded: "I would like to be given a chance to show you." The court then commented on the situation before it; it is from these comments that defendant draws his first claim of error. The court, undoubtedly in response to counsel's urging that probation be imposed, addressed defendant: "It is rather difficult for the court to relate to one in your position, Mr. Yennior, where you still deny that you committed the crime of which you have been convicted. The court doesn't hold that against you. One of the things the court always seeks in determining disposition in criminal matters is the attitude of the accused with respect to whether they admit how readily they admit they have done wrong. I can't talk to you about that because you don't admit it. That's your prerogative. I don't hold that against you, I just want to explain it, it makes it difficult." This passage, seen in the context of counsel's plea for probation and the absence of any questioning of defendant about his involvement in the crime for which he was convicted, does not indicate that the trial court improperly enhanced defendant's sentence for refusing to admit guilt. Rather, it reflects sentiments akin to those Judge 44 Leventhal spoke of in Scott v United States, supra. It displays an attitude as legitimate as the "natural * * * disposition to adjust sanctions when an offender admits his responsibility * * * a readiness to accept the conclusion that such a person has the stuff that portends future improvement". We appreciate the court's feeling that a plea for probation from a defendant who has not admitted responsibility presents a difficult sentencing situation for the court. Read in context, neither the court's statement quoted above nor its similar statement at the hearing on defendant's motion for resentencing demonstrate that the court impermissibly conditioned leniency on defendant's admission of guilt. Rather, we think it clear that the court merely informed defendant that the factor of remorse or contriteness was not available to the court as it considered defendant's request for probation. It was not improper for the court to note that defendant had not accepted responsibility for his crime. We similarly find that defendant's second issue does not merit remand for resentencing. Despite several mentions of "policy" in the court's explanation of the sentence it imposed, we are not convinced that the court failed to exercise its discretion in fitting an indeterminate sentence "to the needs of the particular case and the requirements of society". People v Lessard, 22 Mich App 342; 177 NW2d 208 (1970). The court, at the hearing on defendant's motion for resentencing, explained that when he spoke of a "policy" he meant that all convictions for distribution of hard drugs are viewed as extremely serious cases, not that all persons convicted of distributing hard drugs are not dealt with individually. It is not improper to consider the relative seriousness of the offense in 45 imposing sentence. See People v Shively, 45 Mich App 658; 206 NW2d 808 (1973). In Shively, this Court pointed out that the ABA Standards Relating to Probation (Approved Draft, 1970) in § 1.3a(iii), recognizes that incarceration rather than probation is proper where the court finds that "`it would unduly depreciate the seriousness of the offense if a sentence of probation were imposed'". In the court's sentencing defendant to a rather brief period of incarceration, rather than probation, we find no error. Affirmed. R.M. RYAN, J., concurred. D.C. RILEY, J. (dissenting). The majority seems to impart two, somewhat contradictory, lessons in the case at bar. On one hand, the majority reaffirms its ostensive support of People v Grable, 57 Mich App 184; 225 NW2d 724 (1974), and on the other it cites with apparent approval People v Gray, 66 Mich App 101; 238 NW2d 540 (1975). Grable held that a remand for resentencing by a different judge is warranted where a sentencing court "may have enhanced the sentence imposed" (Id. at 189) in response to a convicted defendant's adamant, post-verdict proclamations of innocence: "[W]e believe that an accused has the right to maintain his innocence after conviction. No additional penalty is to be imposed for continuing to proclaim one's innocence." Grable, supra, at 188-189. (Emphasis added.) In Gray, supra, a panel of this Court, interpreting Grable as factually inapposite, held that lack of remorse for an undenied crime may be taken 46 into account at sentencing. If the facts in Gray clearly support such a proposition, I would not be dismayed by the holding; sadly, however, they do not. As the majority recognizes, defendant Gray at trial "offered a story inconsistent with guilt". At sentencing, however, the trial court in Gray commented on the mention made by probation officials of Gray's supposed lack of remorse without elaborating on how the probation authorities arrived at this conclusion. Despite the absence of documentation concerning Gray's reported lack of contrition, this Court concluded that defendant Gray did not deny his guilt. Without the benefit of the probation report, I would not have reached the same conclusion quite so readily. At any rate, it is clear that a defendant, who in fact admits his guilt yet eschews regret for his actions, reveals by his unrepentance a relevant facet of his character that can be considered at sentencing. It is quite another matter, however, to say that a defendant, who personally or through his counsel maintains his innocence even after a guilty verdict, should be penalized for failing to express remorse regarding a crime he denies committing. This is precisely the kind of "additional penalty" that Grable, supra, condemns. People v Towns, 69 Mich App 475, 479; 245 NW2d 97 (1976). If as the majority suggests "[a]n admission of guilt under pressure offers no insight into defendant's character that would be helpful to the sentencing court", then the fact, rather than the source, of such pressure should be determinative. Whether the pressure to admit guilt and show remorse flows directly from a judge's badgering questions or obliquely from the subtle inducement of the present decision, the evil is the same. On reflection, it should be immediately apparent 47 that inducing an assertedly innocent defendant to admit guilt and pressuring, albeit indirectly, a defendant to express remorse for a crime whose perpetration he denies are but two sides of the same coin. By its decision today, the Court bestows its imprimatur on, and thus encourages, the longstanding practice by which defendants, whether innocent or guilty, are motivated to appear contrite in the hope of reaping a lenient sentence. Why we should exalt such an unfortunate tactic to the level of doctrine escapes me completely. Another disturbing aspect of the present decision is that, despite a laudable effort to clarify this muddled area, the majority perpetuates the confusion. At one point, the majority opinion indicates that a judge may "properly giv[e] * * consideration to remorse or its absence at sentencing". Yet later in the opinion we are told that a court may note "the absence of a factor which might, if it were present, encourage the court to impose a particular sentence". There is more than a mere semantic difference between giving consideration to the absence of remorse and noting the absence of remorse as a factor to be disregarded in passing sentence. Without a clarification of its precise holding, the case at bar, rather than serving as a beacon to sentencing judges, enshrouds them in still greater darkness. Assuming one accepts the more limited version of the majority's holding, namely, that a judge may inform a defendant who is reluctant to admit guilt that remorse is not among the mix of factors to be weighed in passing sentence, the facts in the present case are illsuited to such a proposition. The lower court did more than merely relay this information to defendant. The following statement of the court below at the hearing on defendant's 48 motion for resentencing, taken together with the judge's similar statement at sentencing, convinces me that the judge's remarks were in essence thinly guised invitations to the defendant to recant his misdeed: "I am sure you have heard before, we still have the situation where the defendant refuses to admit he is guilty. If ever a man is going to be rehabilitated effectively, the first thing he has got to do is say I am [guilty], admit it, and then I am sorry. We always run into a problem where somebody is convicted in the trial, if they pled guilty, then they are saying I am guilty, to go through the trial and still deny it afterward, then you have a problem then (sic). If you are guilty, why don't they admit it, isn't that the first step in rehabilitation, that is always a fact to be considered by the Court, and the attitude of the person toward the crime that was committed." (Emphasis added.) I believe that enhancing the defendant's sentence because he declined the judge's not so subtle invitations to admit guilt is just as egregious as the error found in Grable, supra. The absence of remorse in a convicted defendant who disclaims his guilt should be disregarded in passing sentence. This does not mean, however, that an expression of contrition by a defendant who acknowledges his crime should be ignored by the sentencing court. Rather, a sentencing judge should strive to temper with a healthy skepticism "the natural tendency to adjust [the] sanctions" imposed on a repentant defendant. The courts should be leery of a defendant's newfound, and possibly feigned, declarations of penitence. I trust that this state's seasoned trial judges, having frequent opportunity to assess the credibility of persons appearing before them, will 49 be able in most cases to distinguish the sincere from the contrived. Before closing, one last point should be addressed. I agree with the majority that the lower court's frequent reference to a "policy" concerning defendants convicted of drug delivery offenses was not improper once the judge explained that policy related to the gravity of such crimes and not to a refusal to individualize the sentences imposed. However, I would caution sentencing courts to refrain from the use of the term "policy" or phrases of like import in passing sentence because, as this case illustrates, such terms may engender the misimpression that the individualization of sentencing is a rule honored more in the breach than the observance. I would remand this case for resentencing by a different judge because of the distinct possibility that defendant's refusal to confess guilt and express remorse caused the court to enhance the sentence imposed. NOTES [*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968. [1] Grable quotes portions of the transcript that indicate defendant's sentence may have been based, in part, on the court's belief that defendant lied at trial. It is improper to punish a defendant for the substantive offense of perjury without according him his right to trial. Scott v United States, 135 US App DC 377; 419 F2d 264 (1969); cf. People v Anderson, 391 Mich 419; 216 NW2d 780 (1974).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619320/	762 F. Supp. 1518 (1991) Michael CLEMENTE, Plaintiff, v. PEARLE VISION, INC., Defendant. Civ. No. 91-0155-P. United States District Court, D. Maine. May 10, 1991. Michael J. LaTorre, Platz & Tompson, Lewiston, Me., for plaintiff. Mary Mitchell Fiedman, Petruccelli, Cox & Martin, Portland, Me., for defendant. 1519 MEMORANDUM OF DECISION AND ORDER GENE CARTER, Chief Judge. Plaintiff in this diversity action moves for a temporary restraining order. For the reasons that follow, the motion is denied. Background The facts alleged in Plaintiff's complaint are relatively straightforward. Defendant is a Texas corporation involved in the operation of a chain of retail optical stores. In 1984 Plaintiff and Defendant entered into a franchise agreement. Pursuant to the agreement Plaintiff subleased from Defendant Pearle Vision Center store in Auburn, Maine and was granted a right to use Defendant's trademarks. The agreement provided Defendant with a series of remedies in the event of a default by Plaintiff, including the right to take immediate possession of the store. In March 1991, Defendant served notice on Plaintiff that he was in default of the franchise agreement for, inter alia, failing to report to Defendant all gross sale revenues from the store's operation. Plaintiff and his counsel unsuccessfully sought documentation of the alleged defaults, and in April 1991 Plaintiff informed Defendant that he did not intend to voluntarily surrender the premises without legal process. Shortly thereafter Defendant served on Plaintiff a demand that he immediately surrender the premises. Plaintiff refused, and on April 24, 1991 Defendant seized the property and barred Plaintiff from the premises. Plaintiff's five-count complaint alleges that Defendant violated a covenant of good faith and fair dealing alleged to exist between the parties (Count I), that the franchise agreement is unconscionable and void as against public policy (Count II), that Defendant breached the contract between the parties (Count III), that a non-competition covenant in the franchise agreement is unreasonable in its scope and duration and is thus void (Count IV), and that Defendant unlawfully evicted him from the optical store (Count V). Plaintiff seeks damages for lost profits and the value of the franchise, as well as an injunction requiring Defendant to vacate the store and restoring Plaintiff to his rights under the contract and a reformation of the agreement to cure its alleged illegalities. Discussion Plaintiffs must satisfy four criteria to succeed on their application for a temporary restraining order: (1) that Plaintiffs will suffer irreparable injury if the temporary restraining order is not granted; (2) that such irreparable injury outweighs any harm which granting the temporary restraining order would impose on Defendants; (3) that Plaintiffs have exhibited in its filings a likelihood of success on the merits of its claims; and (4) that the public interest will not be adversely affected by the issuance of a temporary restraining order. Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981); see also Augusta News Co. v. News America Publishing, Inc., 750 F. Supp. 28 (D.Me.1990). Preliminary injunctive relief is available only in cases where the need for extraordinary equitable relief is clear and plain. Augusta News, 750 F.Supp. at 31. The Court finds that Plaintiff has failed to carry his burden of showing irreparable injury should the temporary restraining order not be granted, and thus the Court denies the motion. Plaintiff contends that "Plaintiff has devoted numerous years of his labor, industry and skills to the development of this business which has been wrongfully seized from him. If this case follows the normal docket procedure, Plaintiff stands to lose those efforts, all of which are extremely difficult to value." Memorandum of Law in Support of Plaintiff's Motion for a Restraining Order, at 4. Plaintiff's allegations of economic harm are insufficient to establish irreparable harm for the purposes of a temporary restraining order, since a preliminary injunction is available only when there is no adequate remedy at law. C-B Kenworth, Inc. v. 1520 General Motors Corp., 675 F. Supp. 686 (D.Me.1987) (holding preliminary injunction unavailable where damage claims for lost profits and injuries to reputation and good will are compensable in money damages).[1] Accordingly, Plaintiff's Motion for a Temporary Restraining Order or Preliminary Injunction is hereby DENIED. So ORDERED. NOTES [1] Plaintiff has not established that the Auburn optical store will perish in the absence of preliminary injunctive relief, and thus he has not established that a potential "destruction of the business" constitutes irreparable harm. See e.g. Augusta News, 750 F.Supp. at 31-32; C-B Kenworth, 675 F.Supp. at 688 n. 4. On the record made on this motion, it appears that the store is currently being operated by Defendant in accordance with the default provisions of the franchise agreement. If Plaintiff ultimately prevails on his claim that Defendant wrongfully terminated the franchise, he may be entitled to reinstatement of the franchise agreement. In that instance, however, damages for the temporary deprivation of Plaintiff's rights under the franchise agreement are compensable at law.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619301/	762 F. Supp. 844 (1991) ELECTRO BATTERY MFG. CO. and Fireman's Fund Insurance Cos. Plaintiffs, v. COMMERCIAL UNION INSURANCE CO., Defendant. No. 89-0297-C-5. United States District Court, E.D. Missouri, E.D. February 26, 1991. 845 846 Dennis C. Burns, Godfrey, Vandover & Burns, Inc., St. Louis, Mo., for plaintiffs. Russell F. Watters, Brown & James, St. Louis, Mo., for defendant. MEMORANDUM LIMBAUGH, District Judge. Plaintiffs Electro Battery Mfg. Co. ("Electro") and Fireman's Fund Insurance Cos. ("Fireman's") filed a one count complaint against defendant Commercial Union Insurance Co. ("Commercial Union") seeking declaratory relief and damages. Plaintiffs allege that Commercial Union is liable for damages resulting from a gap between Electro's primary and excess automobile insurance coverage. This action was tried before the Court on January 22, 1990. The Court, having considered the pleadings, testimony of witnesses, and documents admitted into evidence hereby makes the following findings of fact and conclusions of law as required by Fed.R.Civ.P. 52. I. Findings of Fact Electro is a corporation that distributes automobile and truck batteries. Daniel & Henry Co. ("Daniel") considers itself an insurance brokerage firm. Electro's insurance policies for primary and excess automobile liability insurance were issued through Daniel. Commercial Union is an insurance company which provided Electro with primary automobile insurance coverage. Mission Insurance Company ("Mission") is an insurance company which provided Electro with excess or umbrella automobile insurance coverage. Fireman's Fund is an insurance company which provided Daniel with coverage for errors and omissions. There are approximately thirty insurers with which Daniel brokers can place insurance. Daniel is compensated with a commission paid by the insurers. In almost all cases the commission is a percentage of the insurance premium paid by the insured. Daniel has agency agreements with approximately 90% of the insurers with which it deals, including Commercial Union. The agency agreement governs the relationship between Daniel and the insurer. The brokers at Daniel complete applications for insureds. The broker has the authority to bind the insurer while the insurer considers the application of the prospective insured. The insurer, however, ultimately decides whether to issue insurance coverage to the applicant. Commercial Union provided primary automobile liability insurance coverage to Electro between October, 1976 and June 30, 1981. For each annual period Commercial Union issued insurance policies to Electro which provided split liability coverage of $250,000 per person, $500,000 per occurrence, and $100,000 property damage ("250/500/100"). For the annual periods beginning July 1, 1979 and July 1, 1980, Mission provided excess coverage to Electro. Mission required Electro to have primary coverage $500,000 combined single limit ("500 CSL"), that is, for each accident Electro should have primary coverage of $500,000.00 regardless of the number of persons involved. Mission provided excess 847 coverage of $5,000,000.00 over and above an underlying 500 CSL. At all times relevant to this action James Mangan was a commercial marketer with Daniel. Mr. Mangan was assigned the task of renewing Electro's account for the annual periods beginning July 1, 1979 and July 1, 1980. It was Mr. Mangan's intention for the annual period beginning July 1, 1979 to change Commercial Union's primary coverage of Electro to 500 CSL. As was stated, supra, prior to 1979 Commercial Union had issued automobile liability policies to Electro with the split coverage of 250/500/100. Mr. Mangan intended to notify Commercial Union of the change in coverage but failed to inform Commercial Union orally or in writing of the change. Therefore, Commercial Union renewed Electro's policy with the split coverage of 250/500/100. Mr. Mangan, however, indicated on Electro's application to Mission for excess insurance coverage that the underlying coverage issued by Commercial Union was going to change from 250/500/100 to 500 CSL.[1] Mr. Mangan renewed Electro's policies for the annual period beginning July 1, 1980 on the same terms as for the previous annual period. Again, Mr. Mangan failed to inform Commercial Union either orally or in writing of any intended change in coverage from 250/500/100 to 500 CSL. Therefore, Commercial Union renewed the policy at 250/500/100. Mission renewed its excess coverage on the assumption that the underlying coverage was 500 CSL. On December 3, 1980 Howard Kutermier, an employee of Electro, was involved in an automobile accident with Ricardo Gonzales, M.D.. Dr. Gonzales filed a lawsuit against Electro which was eventually settled for $300,000.00.[2] Commercial Union paid $250,000 toward the settlement. Mission refused to pay the $50,000 remainder because Mission was only liable for the amount of a settlement in excess of $500,000 under the terms of its policy with Electro. Fireman's Fund, which insured Daniel for errors and omissions, contributed the $50,000.00 necessary to settle Mr. Gonzales' case. Nicholas Kontras, an insurance broker with Daniel, requested Mission to reform its insurance policy to close the gap. Mission refused. Mission was later declared to be insolvent. Fireman's Fund then demanded Commercial Union to reform its insurance policy to close the gap. Commercial Union also refused. II. Conclusions of Law Electro and Fireman's seek to hold Commercial Union liable for damages sustained due to the gap in coverage. First, Commercial Union may be liable for the gap because Commercial Union is directly at fault for the gap.[3] Second, Commercial Union may be liable for the gap because it is liable for the acts of Daniel, its alleged agent. A. Is Commercial Union at fault for the gap? It is clear that Daniel, not Commercial Union, is at fault for the gap in coverage. First, Commercial Union was not notified either orally or in writing, as required by the Agency Agreement between Daniel and Commercial Union, that Daniel sought to change Electro's primary coverage from 250/500/100 to 500 CSL. Second, Commercial Union did not receive information concerning Electro's excess coverage that would enable Commercial Union to detect the gap in coverage. In fact, Commercial Union was the only party that could not have discovered the gap in coverage. Daniel, Electro, and Mission received a declarations page from Commercial Union and Mission which set forth the coverage each provided. If Daniel, Electro, or Mission compared the policies, they would have discovered a gap. Commercial Union, 848 however, did not receive a declarations page from Mission and therefore did not know the terms of the excess coverage provided by Mission. Third, as was stated in Lazzara v. Howard A. Esser, Inc., 802 F.2d 260, 266 (7th Cir.1986) (applying Illinois law), "[a]n insurer ... does not have the duty of reviewing the adequacy of an insured's coverage, even when it knows of facts that indicate that the coverage is inadequate." Therefore, Commercial Union was not at fault in renewing its coverage of Electro at 250/500/100 even though renewal on those terms resulted in a gap between primary and excess coverage. The fault for the gap lies squarely in the lap of Daniel. It is well settled that an insurance agent or broker who undertakes to procure insurance for a client owes an obligation to act with reasonable care, skill, and diligence. Bell v. O'Leary, 744 F.2d 1370, 1372 (8th Cir.1984) (interpreting Missouri law); Chandler v. Jones, 532 So. 2d 402, 405 (La.App.1988); DiLorenzo v. Edward Holle Insurance Agency, 735 F. Supp. 571, 573 (S.D.N.Y.1990). Daniel failed to exercise reasonable care, skill, and diligence in two ways. First, Mr. Mangan failed to notify Commercial Union, either orally or in writing, of the desired change in insurance coverage. Second, it is Daniel's policy to compare a client's underlying and excess insurance coverage to insure that the coverage of both policies was issued as intended. Mr. Mangan does not recall performing the comparison. If Mr. Mangan or any other employee at Daniel would have conducted this comparison, they could have discovered and remedied the gap. B. Is Commercial Union liable for the negligence of Daniel? Plaintiffs seek to hold Commercial Union liable for the negligence of Daniel. Plaintiffs assert that Daniel is the agent of Commercial Union and that Commercial Union, as principal, is liable for Daniel's negligence. Defendant, however, asserts that Daniel is the agent of Electro. To determine whether Daniel was the agent of Commercial Union, the Court must first characterize Mr. Mangan as an insurance agent or insurance broker. Daniel considers itself an insurance brokerage firm, and Mr. Mangan an insurance broker. However, it is the acts of the person, and not what he calls himself, that determine whether he is a broker or an agent. 16 J. Appleman Insurance Law and Practice § 8726 (1981). An insurance broker is an independent middleman not tied to a particular insurance company. The insurance broker may shop around for the insured to obtain the most favorable terms from competing insurance companies. Id. at § 8725. The insurance agent, however, is captive to one insurance company and is bound to place insurance with that company. Id. In the instant matter it is clear that Mr. Mangan was an insurance broker rather than an insurance agent. Although Daniel had placed Electro's primary automobile liability insurance with Commercial Union since 1976, Daniel placed insurance with approximately 30 insurance companies and Mr. Mangan was free to switch insurers if another insurer offered Electro better terms for its coverage. The general rule is that the insurance broker is the agent of the insured. However, whether an insurance broker is the agent of the insurer or of the insured depends on the facts of the particular case. Schimmel Fur Co. v. American Indemnity Co., 440 S.W.2d 932, 938 (Mo.1969). The broker may be the agent of just one, or he may be the agent of the insurer for a certain purpose and of the insured for another purpose. Id. For example, the broker acts for the insured for the purpose of making the application and procuring the policy, and for the insurer for the purpose of collecting and remitting the premiums and delivering the policy. Couch on Insurance 2d § 25:94 (1984). Even though a broker is generally the agent for the insured, it has been recognized that special conditions or circumstances in a particular case may warrant a fair inference that the broker is the agent of the insurer. Schimmel Fur Co., supra, 440 S.W.2d at 938. The Court's inquiry, therefore, is whether special conditions or circumstances exist in 849 this matter which warrant a diversion from the general rule. Daniel executed agency agreements with most of the insurance companies with which Daniel placed insurance. The Agency Agreement between Daniel and Commercial Union, which was in effect at all times relevant to this action, provided in relevant part: In consideration of the mutual covenants and agreements herein contained, the undersigned Companies and Agent (herein designated as Company and Agent, respectively) hereby agree as follows: (1) Company appoints the Daniel and Henry Co. as Agent in the following territory: St. Louis, Missouri, and vicinity (but not to the exclusion of other Agents) with authority to receive and accept proposals for such contracts of insurance (including bonds) as Company and Agent have authority lawfully to make; subject, however, to the restrictions placed upon Agent by laws of the State or States in which Agent is authorized to write business and to the terms and conditions set forth herein and to the instructions of Company to Agent. * * * * * (4) Agent agrees to notify Company in writing of all Endorsements, Certificates and Contracts of Insurance accepted not later than the fifth working day, and all binders accepted not later than the third working day of coverage, which ever occurs first. Plaintiff asserts that under the Agency Agreement Daniel had authority to accept proposals for insurance contracts and to issue binders accordingly. Plaintiff further asserts that Daniel had the authority to bind Commercial Union to the change in policy limits from 250/500/100 to 500 CSL. Therefore, under the terms of the Agency Agreement Daniel was the agent of Commercial Union when Mr. Mangan renewed the Electro's policy, and Commercial Union is liable for Mr. Mangan's negligence in renewing the policy on terms leaving a gap in coverage. Plaintiff cites as support for its position Schimmel Fur Co. v. American Indemnity Co., supra, and Travelers Indemnity Co. v. Beaty, 523 S.W.2d 534 (Mo.App. 1975). In Schimmel Fur Co., plaintiff was a fur merchant. Plaintiff placed his insurance through Mr. Lee Kling, vice president of the insurance brokerage firm General Insurors, Inc.. In 1963 plaintiff opened a second place of business. Plaintiff contacted Mr. Kling, and requested that Mr. Kling purchase insurance against loss by burglary for the new location. Mr. Kling assured plaintiff that the new premises would be covered by an amendment to the existing policies. The new location contained two back rooms: a large room called the "vault" and a smaller room called the "stockroom". It was plaintiff's intention to insure the stockroom for $22,500.00 and the rest of the premises for $2,500.00. Mr. Kling, however, inadvertently insured the vault for $22,500.00 and the rest of the premises for $2,500.00. In October, 1964 plaintiff sustained a substantial loss when the stockroom room was burglarized. Plaintiff then discovered that the limit of insurance coverage for the loss was only $2,500.00. Although Mr. Kling was an insurance broker, the Court concluded that Mr. Kling acted as the agent of the insurer when he purchased the insurance for plaintiff's new location. The court stated: The evidence shows that this is not a case where an independent broker is given an order to procure insurance in any company he may choose. Instead, there is evidence from which it could be found that, irrespective of any previous brokerage performed by Kling for plaintiff, an arrangement was made on this occasion between plaintiff and Lee Kling as vice-president of General Insurors, Inc., that an existing policy of insurance ... should be extended to include plaintiff's new store, and the arrangement was confirmed when Kling notified plaintiff that the new store when opened would be covered as desired by plaintiff. That Kling, as vice-president of General Insurors, was [the insuror's] actual or apparent agent at the time of the confirmation, 850 was supported on the record. The existing policy had been in effect for over a year and it bore the stamp, "General Insurors, Inc.," as authorized representative of [the insuror] with knowledge and authority of [the insuror]; Lee Kling was known by plaintiff to be a vice-president of General Insurors, Inc., and all previous Schimmel insurance had been placed by Kling through General. These circumstances reasonably permitted plaintiff to assume that Kling had authority when he recommended extending the existing policy and called to confirm plaintiff's desired coverage would be accomplished in that manner; and a principal who places an agent in such a situation that a person of ordinary prudence is justified in presuming that the agent has authority to perform a particular act on the principal's behalf is estopped from denying such authority as against such innocent third person. 440 S.W.2d at 938. The Court permitted the insurance contract to be reformed to conform to the parties' agreement. Id. at 939. In Travelers Indemnity Co., the Court held that an insurance broker possessed apparent authority to bind an insurance company to immediate coverage despite the terms of the policy which delayed the commencement of coverage. Mr. Beaty, the insured, purchased automobile coverage with Travelers, the insurer, through the Ogle Insurance Agency, an insurance broker. On July 30, 1987 Belva Beaty, the wife of the insured, purchased from Travelers additional coverage through Ogle for a tandem. On July 30, 1987 Mrs. Beaty paid to Ogle the premium for the additional insurance coverage. The application stated that coverage was to commence on August 1, 1970. On the back of the application Mr. Ogle responded "yes" to the question of whether coverage was bound. Mr. Ogle also assured Mrs. Beaty that coverage was effective as of July 30, 1970. On July 31, 1970 the tandem was involved in a collision with a bridge owned by the Missouri State Highway Commission. The Missouri State Highway Commission sued the Beatys for damage to the bridge and received an award of $27,000.00. Travelers refused to provide coverage for the Beatys because the effective date of coverage for the policy, both by the application and endorsement, was August 1, 1970. The Court held that the following circumstances demonstrated apparent authority on behalf of Ogle to bind Travelers to immediate coverage on July 30, 1970: (1) Ogle had earlier bound coverage in Travelers for Beaty on the application for the original policy; (2) the application form furnished by Travelers contained the question: "Has coverage been bound?" to which Ogle responded "yes"; (3) Ogle verbally assured Mrs. Beaty that coverage was bound on July 30, 1970. 523 S.W.2d at 538. An agency relationship between Commercial Union, as principal, and Daniel, as agent, may arise from Commercial Union's granting Daniel either actual or apparent authority. The Agency Agreement between Commercial Union and Daniel, which is a source of actual authority, provided Daniel with the authority to accept proposals for insurance contracts and to issue binders accordingly. Therefore, Daniel had the authority to bind Commercial Union to the change in policy limits from 250/500/100 to 500 CSL until Commercial Union renewed or rejected the policy. The issuance of a binder creates a temporary or preliminary contract of insurance that is effective from the date of the binder until (1) the issuance of the formal policy, or (2) rejection of the risk by the insurer. 12A Appleman Insurance Law and Practice § 7227 (1981). The binder does not constitute a part of an insurance policy, nor does it create any rights for the insured other than during its effective period. Id. In Travelers Indemnity Co. the court concluded that the insured paid her premium for coverage on July 30, 1970 and coverage commenced on that date, in accordance with the written and oral statements of the broker, despite the fact that the application was post dated August 1, 1970. The insured was covered on July 30, 1970 because the broker had either actual or apparent authority to bind, and the accident 851 occurred during the period which the insurer was bound by the actions of the broker. In Travelers Indemnity Co., the broker's authority to bind was relevant because the loss occurred before the policy was issued by the insurer. In the instant matter the accident did not occur while the binder was in effect. Instead, the accident occurred after Commercial Union renewed the policy with the split coverage of 250/500/100. The grant of a power to bind creates actual authority for the broker to act on behalf of the insurer while the binder is in effect. The authority to bind, however, does not make the insurer liable for the negligence of the broker after the policy has been accepted or rejected by the insurer and the insured is notified of the terms on which the policy was issued. Therefore, the Court does not consider the Commercial Union's granting Daniel the power to bind a special circumstance which persuades the Court to disregard the general rule in this matter. An agency relationship between Commercial Union and Daniel can also arise from apparent authority. Apparent authority is created when a principal places an agent in such a situation that a person of ordinary prudence is justified in presuming that the agent has authority to perform a particular act on the principal's behalf. In Schimmel Fur Co. the Court concluded that the broker had apparent authority to act on behalf of the insurer when it extended the coverage of the insured to include the new store. First, the broker extended an existing policy to provide additional coverage for the insured pursuant to an arrangement between the insured and the broker. Second, the broker contacted the insured and confirmed that the new store would be covered as desired by plaintiff. Third, the insurance policy bore the stamp of the broker which identified the broker as the authorized representative of the insurer. Plaintiffs assert, as a source of apparent authority, that it is the standard practice in the insurance industry with respect to policy renewals to afford brokers discretion in increasing policy limits. Absent extraordinary circumstances, such increases are accepted by insurers. This is especially true when, as in the instant matter, the insurer had provided insurance coverage for the insured for several years and was familiar with the account. The Court has considered whether this "industry practice" is a source of actual or apparent authority and concludes that it is not. First, Commercial Union did not grant Daniel the actual authority to increase or change policy limits on renewal insurance contracts. Instead, for renewals Daniel was only granted the actual authority to accept a proposal and issue a binder which was effective until Commercial Union either accepted or rejected the risk. Second, Commercial Union did not grant Daniel apparent authority to increase or change policy limits on renewal insurance contracts. Although plaintiffs call the policy an industry practice, there is no evidence that the industry practice was in place at Commercial Union. It is assumed that Commercial Union would have changed the policy limits to 500 CSL if Mr. Mangan had properly notified Commercial Union of the desired change. However, unlike in Schimmel Fur Co. there is no evidence of any assurances by Mr. Mangan to Electro that Commercial Union had renewed the policy at 500 CSL. There is no evidence of any assurances by Mr. Mangan to Electro that Commercial Union's acceptance of a renewal at 500 CSL was merely pro forma. Also, unlike in Schimmel Fur Co. there was no stamp or other representation to Electro that Daniel was the authorized agent of Commercial Union. Instead, the Commercial Union's policy merely identifies Daniel as an insurance broker. The Court's focus for apparent authority is on the actions of Commercial Union, the alleged principal. Commercial Union renewed the policy on the terms requested by the insurance broker. Although the broker intended to change the terms on which the policy was renewed, the broker did not communicate this intention to the insurance company, and did not detect the error after the policy was renewed. The Court concludes that plaintiff has set forth no reason to deviate from the general rule that the *852 broker is the agent for the insured. Therefore, Commercial Union cannot be held liable for the negligent acts of Daniel in renewing Electro's insurance policy because Daniel was the agent of Electro. C. Reformation Plaintiffs seek for Commercial Union to reform its policy for the annual period beginning July 1, 1989 to provide primary coverage to Electro of 500 CSL instead of 250/500/100. The remedy of reformation is applicable to insurance contracts. Williams v. United Ins. Co., 618 S.W.2d 229, 231 (Mo.App.1981) (citing Peterson v. Commonwealth Casualty Company, 212 Mo.App. 434, 249 S.W. 148, 150 (1923)). A written instrument which does not conform to the contract agreed to by the parties will be reformed in equity to reflect the contract agreed to. Id. (citing St. Louis County National Bank v. Maryland Casualty Company, 564 S.W.2d 920, 924 (Mo.App.1978)). The party seeking reformation has the burden to establish by clear and convincing evidence that a mutual mistake common to both parties has been made. It must be clear that the instrument has done what neither party intended. Id. Commercial Union, as insurer, was a party to the insurance contract that plaintiffs seek to reform. Commercial Union, however, renewed in accordance with the instructions of Daniel. Although Daniel intended to notify Commercial Union of changes in the policy limits, Daniel failed to communicate this information to Commercial Union orally or in writing and Commercial Union renewed the policy with the prior policy limits. Because Commercial Union intended to renew the policy with the split coverage of 250/500/100, Commercial Union made no mistake warranting reformation of the contract. Although Electro and Daniel each intended the contract to be renewed with coverage of 500 CSL, no mutual mistake exists because Daniel was the agent of Electro. When a broker is not the agent of the insurer, the broker's mistake is not chargeable to the insurer. Accordingly, the insurer does not act under a mutual mistake when it issues a policy in accordance with the broker's mistaken direction. Couch on Insurance 2d § 66:47 (1983). Under Missouri law a court may grant equitable relief when a party to a contract makes a unilateral mistake. Sheinbein v. First Boston Corporation, 670 S.W.2d 872, 876 (Mo.App.1984). The elements necessary for a Court to grant relief in the event of a unilateral mistake include: (1) the opposing party must possess knowledge of the unilateral mistake or the mistake must be of such nature that it should have been known by the opposing party, (2) the unilateral mistake must concern a vital matter so that the court could conclude that the parties never actually agreed to the contractual elements, and (3) the party seeking rescission must act promptly on discovering the reason and need for rescission. Id. The Court declines to reform the policy on the ground of unilateral mistake. Commercial Union, the opposing party, had no knowledge of the unilateral mistake at the time it renewed the policy with split coverage of 250/500/100. Furthermore, the mistake was not of such a nature that Commercial Union should have been aware of it. Electro had purchased policies from Commercial Union for several years with split coverage of 250/500/100. Also, Commercial Union was not apprised of the excess coverage carried by Electro and had no reason to believe that a renewal with split coverage would create a gap. For the foregoing reasons, the Court enters judgment in favor of defendant and against plaintiff on the merits of plaintiff's complaint. NOTES [1] Although a gap in Electro's coverage existed for the annual period beginning July 1, 1979, the gap was not detected because no losses were claimed on the policy. [2] The parties agree that the $300,000.00 paid to settle Dr. Gonzales' claim was fair and reasonable. [3] The Court will address this argument even though plaintiffs do not expressly assert it.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619165/	248 N.W.2d 775 (1977) 197 Neb. 354 STATE of Nebraska, Appellee, v. Charles Lynn EDWARDS, Appellant. No. 40744. Supreme Court of Nebraska. January 12, 1977. 776 Joseph Saint-Veltri, Davies & Saint-Veltri, Harley W. Shaver, Canges & Shaver, Denver, Colo., for appellant. Paul L. Douglas, Atty. Gen., John R. Thompson, Asst. Atty. Gen., Lincoln, for appellee. Heard before SPENCER, McCOWN, and NEWTON, JJ., and CANIGLIA and COADY, District Judges. NEWTON, Justice. The defendant was found guilty by a jury on a charge of possession of marijuana with intent to distribute, deliver, or dispense it. Three assignments of error are presented dealing with denial of a motion for a separate trial, insufficiency of the evidence, and an alleged illegal search and seizure. We affirm the judgment of the District Court. The marijuana was contained in a suitcase shipped at the Grand Island, Nebraska, airport by an individual giving a non-existent address and apparently a false name. It was to be forwarded to Lyle Pelton, Jr., at North Platte, Nebraska. An employee at the Grand Island airport noticed the odor of marijuana emanating from the suitcase and opened it. On observing the marijuana a law officer was called, the suitcase reopened by an airport employee, and its contents displayed to the officer 777 who noted and wrote down the information on the attached tag. The suitcase was then forwarded to North Platte the following day and two officers were alerted to watch for its arrival. In North Platte it was again opened by an airport employee and its contents were inspected by the employee and a law officer who marked the suitcase and watched it until its later seizure. The defendant Edwards called at the airport and asked for a suitcase that had come in from Grand Island for Lyle Pelton. The suitcase was produced and defendant was asked if he was Mr. Pelton. Defendant said he was not and was then advised that Mr. Pelton would have to pick it up as the manner of shipping required identification on delivery. Edwards asked the employee to phone Pelton as he was at work and was advised that it could only be delivered to Pelton on a proper showing of identification. Edwards left and later returned with Pelton; Pelton went in, obtained the suitcase, and placed it in Edwards' van. They drove to the home of Edwards' parents where they were arrested and the suitcase seized. Edwards did not testify at his joint trial with Pelton, but Pelton did testify. Pelton's evidence was that on Sunday, May 11, 1975, the day of the arrest, he was in bed when Edwards stopped at his home and asked him to go with him to get the suitcase. Pelton denied any knowledge of its contents, contending Edwards, who was a railroad brakeman making regular trips to or through Grand Island, had told him it contained some clothes of Edwards. Pelton's father also testified and stated that Edwards had said they were going to pick up a suitcase of his, Edwards'. Both men were convicted. Defendant's contention that the seizure occurred on removal of the suitcase from Edwards' van is incorrect. Since the search was made by an employee at the airport and not by a law officer, the search was valid. In United States v. Ford, 525 F.2d 1308 (10th Cir., 1975) it was held in an identical case: "Realistically, the contraband was seized by the officers in California before it was ever shipped to Oklahoma. See United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973). The California officers marked the package and placed a business card inside it. Upon receiving assurances of cooperation from Oklahoma City officers, they authorized its shipment. This action constituted the initial act of control and dominion over the contraband, for without government authorization the airline officials could not have shipped the contraband. This official dominion continued unbroken because close surveillance followed the seized contraband, insuring that it remain within official possession. Actual physical control was in fact reasserted by the Oklahoma City police when the arrest process was completed. These material facts are indistinguishable from DeBerry, supra, and we adopt the analysis of that case in concluding that the official seizure of the contraband occurred in San Francisco when the government asserted dominion over it. The seizure must be judged against the Fourth Amendment as of that time and place. * * * "The search was private, and the ensuing warrantless seizure was made upon probable cause under exigent circumstances. Neither the search nor the seizure violated appellant's Fourth Amendment rights." Defendants had each moved for separate trials and the motions were denied. Section 29-2002, R.R.S.1943, authorizes joint trials where the defendants are charged with acts based on the same act or transaction, as here, unless prejudice appears. In this instance the defendants were represented by different counsel and no confession or statement of either defendant was introduced in evidence. We have frequently held that: "The ruling of the trial court upon a severance of criminal prosecutions properly joined in a single indictment, information, or complaint will not be disturbed on appeal, in the absence of an abuse of discretion." State v. Micek, 193 Neb. 379, 227 N.W.2d 409. This record does not reflect that any evidence was introduced in support of the motion for severance or any prejudice shown to defendant 778 Edwards. Defendant asserts that prejudice developed during the trial due to Pelton's testimony. In State v. Saltzman, 194 Neb. 525, 233 N.W.2d 914, a statement of one defendant was admitted in evidence. We there held: "The confrontation clause is not violated by admitting a codefendant declarant's out-of-court statement, so long as the declarant is testifying as a witness and is or has been subject to full and effective cross-examination. * * "In a joint trial, where an out-of-court hearsay statement of one defendant inculpating a codefendant is admitted in the prosecution's case-in-chief, the subsequent in-court testimony of the one who made the statement is sufficient to afford the prejudiced codefendant his right to full and effective confrontation and cross-examination, and the Bruton rule [Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476] becomes inapplicable." In this instance Pelton testified and was subjected to cross-examination. His testimony cannot be subjected to any limitation not also applicable to a previously executed written statement. We conclude that the rights of the defendant Edwards were not prejudiced and no abuse of discretion occurred. The final question pertains to the sufficiency of the evidence to sustain the conviction. The evidence reflects that Edwards attempted to claim the suitcase at the airport and persisted by requesting the employee in charge to call Pelton whom he stated was at work. This was a falsehood as the day was a Sunday and Pelton was at home in bed. Apparently Pelton had not requested Edwards to get the suitcase, but, on the contrary, soon after Edwards failed to obtain delivery, he called and picked up Pelton and took him to the airport with the request that he obtain delivery of the suitcase. This Pelton did. There is also the evidence of Pelton's father that Edwards told him they were going to the airport "and pick up my suitcase." There was also further evidence that Edwards was frequently in Grand Island, the source of the shipment, and had told Pelton that he was having some clothes forwarded and that he had sent a suitcase which was at the airport. "Proof of guilty knowledge may be made by evidence of acts, declarations, or conduct of the accused from which the inference may be fairly drawn that he knew of the existence and nature of the narcotics at the time and place where they were found." State v. Torrence, 192 Neb. 720, 224 N.W.2d 177. There is evidence which, if accepted by the jury, was sufficient to sustain a finding that Edwards was aware of the contents of the suitcase and at least a part-owner of the marijuana. We have held that: "In determining the sufficiency of evidence to sustain a conviction in a criminal prosecution, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the jury. * * * "The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the State, to support it." State v. Lacy, 195 Neb. 299, 237 N.W.2d 650. We find the evidence sustains the verdict. The judgment of the District Court is affirmed. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619215/	303 S.W.3d 819 (2009) Malcolm BARBER and Leann Barber, Appellants, v. William F. DEAN, M.D., Mikko Peter Tauriainen, M.D., and Cardiovascular and Thoracic Surgical Group of Wichita Falls, P.A., Appellees. No. 2-07-353-CV. Court of Appeals of Texas, Fort Worth. October 29, 2009. Rehearing Overruled December 3, 2009. 821 Darrell L. Keith, Arin K. Schall, Keith Law Firm, P.C., Fort Worth, TX, for Appellants Malcolm Barber and Leann Barber. Stephen L. Tatum, Cantey Hanger, L.L.P., Fort Worth, for Appellees William F. Dean, M.D. J. Wade Birdwell, Leslie Dillon Thomas, Wallach & Andrews, P.C., Fort Worth, TX, for Appellees Mikko Peter Tauriainen, M.D. James K. Peden III, Joseph A. Turano, Craig Myers, Strasburger & Price, L.L.P., Dallas, TX, for Appellees Cardiovascular and Thoracic Surgical Group of Wichita Falls, P.A. PANEL: CAYCE, C.J.; LIVINGSTON and MEIER, JJ. OPINION BILL MEIER, Justice. I. INTRODUCTION In three issues, appellants Malcolm Barber and Leann Barber appeal the trial court's order dismissing their health care liability claims against Appellees William F. Dean, M.D., Mikko Peter Tauriainen, M.D., and Cardiovascular and Thoracic 822 Surgical Group of Wichita Falls, P.A. ("CTSG"). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon Supp. 2009). We will affirm in part and reverse and remand in part. II. FACTUAL AND PROCEDURAL BACKGROUND According to Appellants' original petition and the expert report of Jeffrey Alan Wagner, M.D., M.B.A., in January 2004, Malcolm underwent a multivessel coronary artery bypass graft procedure involving the harvesting of his left radial artery, left saphenous vein, and left internal mammary artery. The surgery lasted over six hours. A "three team approach" was utilized during the harvesting procedure, and all three harvests were performed simultaneously. Dr. Tauriainen performed the harvest of the left internal mammary artery; Leo Mercer, M.D. performed the harvest of the left saphenous vein; and Shellie Barnett-Wright, PA-C performed the harvest of the left radial artery from Malcolm's left forearm. Dr. Dean, who was present in the operating room for a portion of Malcolm's surgical procedure, provided "medical/surgical" services to Malcolm. Following the harvesting, Malcolm's left arm was "tucked" by anesthesiologist Robert Moss, M.D., assisted by a couple of nurses. Following the bypass graft procedure, Malcolm experienced difficulties with his left hand and arm, including pain, burning, numbness, inability to grip, stiffness, stinging, swelling, and weakness. He attempted to relieve these difficulties through medical management and occupational therapy, but the treatments proved to be unsuccessful. An orthopedic surgeon diagnosed Malcolm with a left ulnar nerve lesion and ulnar cubital syndrome and recommended surgery to treat the conditions. Surgery to relieve these conditions was unsuccessful, and Malcolm continues to experience pain, weakness, grip difficulties, and other problems with his left arm and hand. Appellants sued Appellees and others[1] alleging, among other things, that Malcolm's postsurgical problems were caused by Appellees' negligence in failing to provide medical or surgical care regarding Malcolm's left upper extremity condition during and after the surgical procedures. Throughout his report, Dr. Wagner characterizes Appellees' conduct as a failure to provide for the proper positioning and padding of Malcolm's arms and body to prevent perioperative peripheral neuropathies. Appellants alleged both direct and vicarious theories of liability against CTSG. They tendered Dr. Wagner's expert report within 120 days of suit. Dr. Dean timely filed his objections to Dr. Wagner's report on the following grounds: (1) Dr. Wagner is not qualified to render an opinion about the accepted and applicable standard of care relevant to Appellants' claim; and (2) the report fails to sufficiently set forth (i) the applicable standard of care and (ii) how Dr. Dean failed to meet that standard of care. Dr. Tauriainen timely filed his objection to Dr. Wagner's report on the ground that Dr. Wagner, an anesthesiologist, is not qualified to render an opinion about the 823 standard of care applicable to a cardiovascular and thoracic surgeon. CTSG timely filed its objections to Dr. Wagner's report on the following grounds: (1) Dr. Wagner is not qualified to render an opinion as to whether CTSG breached any applicable standard of care; and (2) the report is insufficient to set forth (i) the applicable standard of care, (ii) how CTSG breached the standard of care, and (iii) how CTSG's alleged negligence caused Malcolm's alleged injuries. Appellees also filed civil practice and remedies code section 74.351(b) motions to dismiss. After a hearing on Appellees' objections to Dr. Wagner's report and motions to dismiss, the trial court sustained Appellees' objections and dismissed Appellants' claims against Appellees with prejudice.[2] III. STANDARD OF REVIEW We review a trial court's order on a motion to dismiss a health care liability claim for an abuse of discretion.[3]Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or if it acts without reference to any guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986)). We may not substitute our judgment for the trial court's judgment. Id. Nor can we determine that the trial court abused its discretion merely because we would have decided the matter differently. Downer, 701 S.W.2d at 242. IV. EXPERT REPORT REQUIREMENTS AND STANDARDS Civil practice and remedies code section 74.351 provides that, within 120 days of filing suit, a plaintiff must serve expert reports for each physician or health care provider against whom a liability claim is asserted. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). An expert report is a written report by an expert that provides a fair summary of the expert's opinions regarding the applicable standard of care, the manner in which the care rendered by the physician or health care provider failed to meet the standard, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6). If a claimant timely furnishes an expert report, a defendant may file a motion challenging the report's adequacy. See id. § 74.351(a), (c), (l). A trial court must grant a motion to dismiss based on the alleged inadequacy of an expert report only if it finds, after a hearing, "that the report does not represent an objective good faith effort to comply with the definition of an expert report" in the statute. Id. § 74.351(l). The information in the report does not have to meet the same requirements as evidence offered in a summary judgment proceeding or at trial, and the 824 report need not marshal all the plaintiff's proof, but it must include the expert's opinions on each of the elements identified in the statutestandard of care, breach, and causation. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex.2001); Thomas v. Alford, 230 S.W.3d 853, 856 (Tex.App.-Houston [14th Dist.] 2007, no pet.). In detailing these elements, the supreme court has made clear that an expert report must provide enough information to fulfill two purposes if it is to constitute a good faith effort: the report must (1) inform the defendant of the specific conduct the plaintiff has called into question and (2) provide a basis for the trial court to conclude that the plaintiff's claims have merit. Palacios, 46 S.W.3d at 879; Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex.App.-Houston [1st Dist.] 2006, no pet.). A report does not fulfill these two purposes if it merely states the expert's conclusions or if it omits any of the statutory requirements. Palacios, 46 S.W.3d at 879. In assessing the report's sufficiency, the trial court may not draw any inferences; it must rely exclusively on the information contained within the report's four corners. Bowie Mem'l Hosp., 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. Regarding qualifications, the civil practice and remedies code provides in relevant part that "expert" means the following: (A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of medical care, an expert qualified to testify under the requirements of Section 74.401; (B) with respect to a person giving opinion testimony regarding whether a health care provider departed from accepted standards of health care, an expert qualified to testify under the requirements of Section 74.402; [and] (C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(A)-(C). Under section 74.401, a person may qualify as an expert witness on the issue of whether a physician departed from accepted standards of medical care only if the person is a physician who (1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose; (2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care. Id. § 74.401(a) (Vernon 2005). In determining whether a witness is qualified on the basis of training or experience under section 74.401(a)(3), the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and (2) is actively practicing medicine in rendering medical care services relevant to the claim. Id. § 74.401(c). Under section 74.402, a person may qualify as an expert witness on the issue of whether a health care provider departed 825 from accepted standards of care only if the person (1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose; (2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care. Id. § 74.402(b) (Vernon 2005). In determining whether a witness is qualified on the basis of training or experience under section 74.402(b)(3), the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness (1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim and (2) is actively practicing health care in rendering health care related services relevant to the claim. Id. § 74.402(c). Under rule of evidence 702, "[w]hat is required is that the offering party establish that the expert has `knowledge, skill, experience, training, or education' regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject." Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.403 (Vernon 2005). V. DR. WAGNER'S QUALIFICATIONS In their second issue, Appellants argue that the trial court abused its discretion by ruling that Dr. Wagner is not qualified to render an expert opinion as to whether Dr. Dean, Dr. Tauriainen, and CTSG departed from accepted standards of medical care regarding the positioning and padding of Malcolm's arm during the January 2004 multivessel coronary artery bypass graft procedure. A. Dr. Dean's Objection Dr. Dean did not object in the trial court that Dr. Wagner does not meet the criteria identified in section 74.401(a), (b), or (c). Instead, Dr. Dean based his objection to Dr. Wagner's qualifications on only one ground, stating as follows: [Dr.] Wagner's curriculum vitae ("CV") fails to show that he has any training or experience as a cardiovascular surgeon. Since Dr. Dean is a cardiovascular surgeon, Dr. Wagner is not and cannot be familiar with the standard of care applicable to a physician like or similar to Dr. Dean. Dr. Dean's objection to Dr. Wagner's qualifications is without merit for more than one reason. In delineating the statutory qualifications for a chapter 74 expert, the statute does not merely focus on the defendant physician's area of expertise but also on the condition involved in the claim. See Tex. Civ. Prac. & Rem.Code Ann. § 74.401(a)(2) (requiring expert to have "knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim" (emphasis added)), § 74.401(c)(1), (2) (recognizing an expert may be qualified on the basis of training or experience if he or she is board certified or is practicing "in an area of medical practice relevant to the claim" (emphasis added)). 826 That is, the applicable "standard of care" and an expert's ability to opine on it are dictated by the medical condition involved in the claim and by the expert's familiarity and experience with that condition. See Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d 261, 266-67 (Tex.App.-Fort Worth 2009, no pet.); McKowen v. Ragston, 263 S.W.3d 157, 162 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (permitting infectious disease physician to opine on standard of care for treating infection stemming from AV graft even though defendant doctor was cardiothoracic surgeon); Blan v. Ali, 7 S.W.3d 741, 746-47 & n. 3 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Here, according to Dr. Wagner's fourteen-page, single-spaced report, he specializes in anesthesiology and he has substantial personal knowledge and experience in the care and treatment of patients undergoing general anesthesia for cardiac surgical procedures. He is also familiar with how such procedures are managed. Included in the management of such procedures is the positioning and padding of the patient and the patient's extremities.[4] Appellants claim that Malcolm's postsurgical problems were caused by Appellees' negligence in failing to provide for the proper positioning and padding of his arm. Thus, Dr. Wagner has familiarity and experience with the specific medical condition involved in the claim, which is the focus of chapter 74. Further, though not every physician automatically qualifies as an expert in every area of medicine, it is well established that a physician need not be a practitioner in the same specialty as the defendant to be qualified as an expert in a particular case. Broders, 924 S.W.2d at 152-53. If a particular subject is substantially developed in more than one medical field, a qualified physician in any of those fields may testify. Id. at 154; see Rittger v. Danos, ___, S.W.3d ___, ___ (Tex. App.-Houston [1st Dist.] 2009, no pet. h.) (stating that when a particular subject of inquiry is common to and equally developed in all fields of practice and the prospective medical expert witness has practical knowledge of what is usually and customarily done by a practitioner under circumstances similar to those that confronted the practitioner charged with malpractice, the witness is qualified to testify). Here, the proper positioning and padding of Malcolm's arm during the cardiac surgical procedure is not a subject exclusively within the knowledge or experience of a physician specializing in cardiovascular or thoracic surgery because Dr. Wagner, a physician who specializes in anesthesiology, is experienced in and familiar with how cardiac surgical proceduresincluding the positioning and padding of patients' extremitiesare managed. Contrary to Dr. Dean's objection, Dr. Wagner's specialization in the field of anesthesiology instead of cardiovascular or thoracic surgery does not disqualify him from rendering an expert opinion as to whether Dr. Dean departed from accepted standards of medical care regarding the proper positioning and padding of Malcolm's arm.[5]See 827 Broders, 924 S.W.2d at 153-54. We hold that the trial court abused its discretion by ruling that Dr. Wagner is not qualified to render an expert opinion as to whether Dr. Dean departed from the accepted standards of medical care regarding the positioning and padding of Malcolm's arm. We sustain this part of Appellants' second issue. B. Dr. Tauriainen's Objection Dr. Tauriainen made the following objection in the trial court to Dr. Wagner's qualifications: [Dr. Tauriainen] objects to the qualifications of Dr. Wagner for the reason that they fail to meet the criteria, delineated in § 74.401(a), (b) and (c), that would permit him to offer expert testimony on the issue of whether Dr. Tauriainen departed from the accepted standards of medical care in this matter. Dr. Wagner's report satisfies each of the section 74.401(a) requirements. Dr. Wagner has been actively engaged in the practice of medicine from 1982 to the present, and he was practicing medicine as of the date of the report and when the claim arose in January 2004.[6] Dr. Wagner thus satisfies the requirement of civil practice and remedies code section 74.401(a)(1). As mentioned above, Dr. Wagner states that he has substantial personal knowledge and experience in the care and treatment of patients undergoing general anesthesia for cardiac surgical procedures. He is also familiar with the management of such procedures, which includes positioning and padding patients and patients' extremities in order to prevent perioperative peripheral neuropathies. Dr. Wagner consequently states that he has substantial knowledge of the reasonable, prudent, and accepted standards of care applicable to cardiovascular and cardiothoracic surgeons, general and traumatic surgeons, registered nurses, and physician assistants, among others, for "the diagnosis, assessment, care, and treatment of patients undergoing general anesthesia for cardiac surgical procedures," which includes the positioning and padding of the patient and the patient's extremities in order to prevent perioperative peripheral neuropathies. Dr. Wagner's knowledge of the applicable standards of care is based upon the following: (1) his education, training, and experience; (2) his familiarity with applicable medical literature; (3) his familiarity with the applicable standards of medical and health care developed among anesthesiologists, cardiovascular and cardiothoracic surgeons, general and traumatic surgeons, nurses, and physician assistants in the positioning and padding of patients and the patients' extremities for the prevention of perioperative peripheral neuropathies under circumstances like Malcolm's; (4) his familiarity with the minimum standards of reasonable, prudent, and accepted medical practices for the assessment, care, and treatment of surgical patients like or similar to Malcolm 828 regarding the prevention of perioperative peripheral neuropathies; and (5) his familiarity with the standards of reasonable, prudent, and accepted standards of medical care and treatment of surgical patients like Malcolm regarding the prevention of perioperative peripheral neuropathies that were applicable to all cardiovascular and thoracic surgeons, general or traumatic surgeons, nurses, and physician assistants as of 2004. In light of his substantial knowledge of the reasonable, prudent, and accepted standards of care for Malcolm's condition, Dr. Wagner demonstrated that he "has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim," as mandated by civil practice and remedies code section 74.401(a)(2). See Tex. Civ. Prac. & Rem.Code Ann. § 74.401(a)(2). As for the section 74.401(a)(3) requirement, Dr. Wagner states in his report that he became board certified in anesthesiology in 1985. He has been a Diplomate and Consultant to the American Board of Anesthesia since 1985 and a Diplomate to the National Board of Medical Examiners since 1982. Dr. Wagner's certification is relevant to Appellants' claim because Dr. Wagner is experienced in and familiar with how cardiac surgical procedures, including the proper positioning and padding of a patient's extremities, are managed. See id. § 74.401(c)(1). Additionally, Dr. Wagner states that since 1982, he has administered and managed medical anesthesia care and treatment to over 10,000 patients undergoing surgeries in a supine position and to between 300 and 400 patients undergoing cardiac surgery. He also states that he has "extensive experience working cooperatively with nurses and physician[] assistants in the nursing and physician assistant care and treatment of patients undergoing general anesthesia for cardiac surgical procedures." Further, Dr. Wagner states that he has substantial knowledge of the causal relationship regarding an anesthesiologist's, cardiovascular and cardiothoracic surgeon's, and physician assistant's failures to meet the reasonable, prudent, and accepted standards of care and supervision in the diagnosis, care, and treatment of patients undergoing general anesthesia for cardiac surgical procedures. In light of Dr. Wagner's substantial relevant experience, he has "other substantial training or experience in an area of medical practice relevant to" Appellants' claim. See id. In considering section 74.401(c)(2), Dr. Wagner has specialized in the field of anesthesiology since 1983 and is actively engaged in the practice of medicine as the term is defined in section 74.401. We have already explained that Dr. Wagner's practice of anesthesiology is relevant to Appellants' claim. Thus, Dr. Wagner is actively practicing medicine in rendering medical care services relevant to Appellants' claim. See id. § 74.401(c)(2). Accordingly, considering that Dr. Wagner is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and that he is actively practicing medicine in rendering medical care services relevant to the claim, he showed that he is "qualified on the basis of training and experience to offer an expert opinion regarding" the accepted and applicable standards of medical care in this case. See id. § 74.401(a)(3). To the extent Dr. Tauriainen's objection based on section 74.401 implicates section 74.351(r)(5)(C), considering the totality of Dr. Wagner's report, he has knowledge, skill, experience, training, or education that qualifies him to give an opinion about whether Dr. Tauriainen's departure from 829 accepted standards of medical care regarding the positioning and padding of Malcolm's arm before, during, and after the surgical procedure had a causal relationship to Malcolm's injury because (1) he has substantial personal knowledge and experience in the care and treatment of patients undergoing general anesthesia for cardiac surgical procedures; (2) he has substantial knowledge of the reasonable, prudent, and accepted standards of care applicable to cardiovascular and cardiothoracic surgeons and other professionals for the care and treatment of patients undergoing general anesthesia for cardiac surgical procedures; (3) he has specialized in the field of anesthesiology since 1983 and has been board certified in anesthesiology since 1985; and (4) he has administered and managed medical anesthesia care and treatment to between 300 and 400 patients undergoing cardiac surgery. See Broders, 924 S.W.2d at 153. Dr. Wagner's report establishes that he is qualified to opine on the issue of causation because he is qualified to render such an opinion under the rules of evidence. See Tex. Civ. Prac. & Rem.Code Ann. §§ 74.351(r)(5)(C), 74.403(a). Like Dr. Dean, Dr. Tauriainen argues that Dr. Wagner is not qualified to address the accepted standard of care in this case because he is an anesthesiologist, not a cardiovascular and thoracic surgeon. This argument is unpersuasive for the same reasons that it was unpersuasive for Dr. Dean. We hold that the trial court abused its discretion by ruling that Dr. Wagner is not qualified to render an expert opinion as to whether Dr. Tauriainen departed from the accepted standards of medical care regarding the positioning and padding of Malcolm's arm. We sustain this part of Appellants' second issue. C. CTSG's Objection CTSG challenged Dr. Wagner's qualifications to render an expert opinion as to whether it departed from the accepted standards of medical care relevant to Appellants' claims. Appellants alleged both direct and vicarious theories of liability against CTSG.[7] We construe CTSG's objection as a challenge to Dr. Wagner's qualifications to render an expert opinion as to CTSG's direct liability.[8] As a professional association, CTSG is a "health care provider" as defined by section 74.001. Id. § 74.001(a)(12)(A). Thus, Dr. Wagner's report must demonstrate that he is qualified pursuant to section 74.402 to render an expert opinion as to CTSG's alleged departure from the applicable standard of care. See id. § 74.351(r)(5)(B). Unlike Dr. Wagner's report as to Dr. Dean and Dr. Tauriainen, Dr. Wagner's report as to CTSG does not provide any information regarding his background, training, or experience from which it can be concluded that he has expertise about the standards of care generally applicable to professional associations. Dr. Wagner generally asserts that he is qualified to render an expert opinion on CTSG's conduct, but this alone is insufficient in the absence of any information within the report itself indicating any experience or training regarding the standards of care applicable to professional associations. We hold that the trial court did not abuse its discretion by sustaining 830 CTSG's objection that Dr. Wagner's report failed to show that he is qualified under section 74.402 to opine regarding Appellants' direct liability claim against CTSG. We overrule this part of Appellants' second issue. VI. SUFFICIENCY OF DR. WAGNER'S REPORT In their third issue, Appellants argue that the trial court abused its discretion by ruling that Dr. Wagner's report is insufficient to represent an objective good faith effort to comply with the definition of an expert report in section 74.351(r)(6). Dr. Tauriainen did not object in the trial court that Dr. Wagner's report was insufficient as to any of the section 74.351(r)(6) requirements. But Dr. Dean objected that Dr. Wagner's report was insufficient regarding the applicable standard of care and how Dr. Dean failed to meet that standard of care, and CTSG challenged each requirement of section 74.351(r)(6). A. Standard of Care Dr. Wagner states the following regarding the accepted and applicable standards of care in this case: The applicable reasonable, prudent and accepted standards of care for . . . Dr. [Tauriainen] [and] Dr. Dean . . . involved a shared responsibility on the part of each of these surgeons, the physician assistant, and nurses to properly position and pad [Malcolm's] left and right upper extremities before the start of the CABG surgical procedure, during the left radial artery harvest, after the left radial [artery] harvest and during the remainder of the surgery in order to prevent peripheral neuropathies to [Malcolm's] upper extremities. Of the major nerves in the upper extremities, the ulnar nerve and brachial plexus nerves are and were the most common nerves to be at risk of injury and to become symptomatic and lead to major disability of a patient during and after the perioperative period. Improper surgical patient positioning and padding of upper extremities were well known causative factors in the development of surgical patients' ulnar neuropathies as of 2004 and such risks had been known by the surgical, physician assistants, hospital, and operating room nursing communities in the United States for many years. As of 2004, reasonably prudent anesthesiologists, cardiovascular and cardiothoracic surgeons, general and traumatic surgeons, physician's professional associations, registered nurses, and physician[] assistants were or should have been aware that surgical patients in supine positions were at risk of developing ulnar nerve injuries and neuropathies during surgery due to external ulnar nerve compression or stretching caused by malpositioning and improper or inadequate padding during surgery. Prevention of perioperative peripheral neuropathies to [Malcolm], including his left upper extremity, was preventable by proper positioning and padding of his left arm and hand. Dr. Moss, with the cooperation of nurses Alexander and Syptak, should have positioned [Malcolm's] right and left upper extremities in a manner to decrease pressure on the postcondylar groove of the humerus or ulnar groove. When his arms were tucked at the side the neutral forearm position with elbows padded would have been appropriate. When his left upper extremity was abducted on an arm board, that extremity should have been either in supination or a neutral forearm position. His arm should have been extended to less than ninety degrees. They should have applied padding materials such as foam sponges, eggcrate foam or gel pads, to protect exposed peripheral nerves in [Malcolm's] left arm, particularly at the site of his 831 elbow and left ulnar groove. Thus, after Drs. [Tauriainen] [and] Dean . . . harvested [Malcolm's] left radial artery from his left upper extremity extended on an armboard, they, together with Dr. Moss, and nurses Alexander and Syptak, should have assured that [Malcolm's] left upper extremity was returned to his side in a neutral forearm position and padding of his left elbow and any bony prominences should have been performed to protect his left ulnar nerve and prevent the risk of a left upper extremity neuropathy to the nerve. Also, Drs. [Tauriainen] and Dean . . . should have assured and followed procedures so that [Malcolm's] left upper extremity was positioned in a neutral forearm position and properly padded to prevent the risk that any of the surgeons or assistants could come in contact or lean on his left arm during the surgical procedure. [Emphasis added.] The report thus includes Dr. Wagner's opinions on the element of standard of care. See id. § 74.351(r)(6). Dr. Dean and CTSG, however, cite Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241 (Tex.App.-Corpus Christi 2004, no pet.), and argue that Dr. Wagner's report is insufficient because it fails to state with specificity the applicable standard of care for each defendant. Taylor has been thoroughly scrutinized by the appellate courts, and it does not expressly prohibit applying the same standard of care to more than one health care provider if they all owe the same duty to the patient. See Springer v. Johnson, 280 S.W.3d 322, 332-33 (Tex.App.-Amarillo 2008, no pet.); Livingston v. Montgomery, 279 S.W.3d 868, 871-73 (Tex.App.-Dallas 2009, no pet.); Sanjar v. Turner, 252 S.W.3d 460, 466-67 (Tex.App.-Houston [14th Dist.] 2008, no pet.). Dr. Wagner's report provides that Appellees all shared a responsibility to properly position Malcolm's arm. The report is not insufficient for "grouping" Appellees together because Dr. Wagner specifically states that they all owed the same duty to ensure the proper positioning and padding of Malcolm's arm. See Springer, 280 S.W.3d at 332; Livingston, 279 S.W.3d at 873; Sanjar, 252 S.W.3d at 466; In re Stacy K. Boone, 223 S.W.3d 398, 405-06 (Tex.App.-Amarillo 2006, no pet.) (holding that a single standard of care applicable to physicians and physician assistant was sufficient because all participated in administering treatment); cf. Polone v. Shearer, 287 S.W.3d 229, 235 (Tex.App.-Fort Worth 2009, no pet.) (holding report that set forth single standard of care applicable to physician and physician assistant insufficient to represent a good faith effort because "[a]lthough the standards of care might be the same for both [the physician and physician assistant], the report does not specifically state as much"). We hold that Dr. Wagner's report constitutes a good faith effort to identify and set forth the applicable standards of care in this case and that the trial court abused its discretion by ruling otherwise. We sustain this part of Appellants' third issue. B. Breach of Standard of Care and Causation Dr. Wagner's report states the following regarding how Appellees failed to meet the applicable standards of care and the causal relationship between that failure and the injury, harm, or damages claimed: It is my opinion that Dr. [Tauriainen] [and] Dr. Dean . . . failed to meet the applicable reasonable, prudent and accepted standards of medical care . . . for each of them in that they did not properly and adequately perform procedures to assure that [Malcolm's] left upper extremity was positioned and padded to 832 decrease pressure on his left postcondylar groove of the humerus or ulnar groove in order to protect him from a serious and permanent left ulnar nerve injury and neuropathy to his left upper extremity. During the surgery, [Malcolm] was asleep under the effects of general anesthesia and he was unable to care for himself and protect himself from a left upper extremity ulnar nerve injury and neuropathy. According to the hospital's intraoperative record[,] a left radial artery harvest was performed by Ms. Barnett-Wright, under the supervision of Dr. [Tauriainen] and Dr. Dean. After this harvest procedure, [Malcolm's] right arm was placed in a tucked and padded position on his right side, his left arm was placed on an olympic table for the left radial artery harvest procedure, and then his left arm was placed in a "tucked" position on his left side by Dr. Moss, with the cooperation of nurses Alexander and Syptak. Dr. [Tauriainen] [and] Dr. Dean . . . had a shared responsibility with the anesthesiologist . . . to assure that [Malcolm's] left upper extremity was properly positioned and padded for the remainder of the CABG surgery. However, Dr. [Tauriainen] [and] Dr. Dean. . . improperly failed to position [Malcolm's] left arm and apply padding or adequate padding such as foam sponges, eggcrate foam, or gel pads to protect his exposed peripheral left ulnar nerve at the site of his elbow and left ulnar groove. Dr. [Tauriainen] [and] Dr. Dean . . . should have directed Ms. Barnett-Wright to place [Malcolm's] left arm in a neutral forearm position and apply padding of his left elbow to protect his left ulnar nerve, and Dr. [Tauriainen] [and] Dr. Dean . . . should have checked the site of [Malcolm's] left arm and elbow to assure that these procedures had been properly followed, or Dr. [Tauriainen] [and] Dr. Dean should have performed these procedures themselves. It appears from the hospital record that Dr. [Tauriainen] [and] Dr. Dean . . . did not adequately direct Ms. Barnett-Wright in the positioning and placement of [Malcolm's] left arm to protect his left ulnar nerve following the left radial artery harvest, and that they did not adequately perform these procedures themselves nor assure that Ms. Barnett-Wright had done so to protect [Malcolm's] left ulnar nerve. . . . These standard of care failures by Dr. [Tauriainen] [and] Dr. Dean . . . very likely resulted in the exposure of [Malcolm's] left ulnar peripheral nerve to excessive external pressure or stretching, or both, over a prolonged period of approximately four hours during the surgical procedure and this prolonged pressure and/or stretching most likely resulted in a serious and permanent left ulnar nerve injury and neuropathy to [Malcolm's] left arm and hand, and [Malcolm's] physical impairments in the use of his left hand consisting of pain, numbness, stiffness, impaired use of his left hand and two fingers involved. My opinion in this regard is based upon the facts that [Malcolm] did not have any preoperative history of left upper extremity neuropathy, the hospital intraoperative records indicate that his left upper extremity was inappropriately and inadequately positioned and padded during the surgery, [and] he awoke from general anesthesia in the ICU and immediately perceived painful throbbing, burning and swelling of his left arm and hand. . . . If Dr. [Tauriainen] [and] Dr. Dean . . . with the cooperation of Ms. Barnett-Wright, had properly positioned and padded [Malcolm's] left arm, and particularly the area of his elbow and ulnar groove, his ulnar nerve would not have been exposed to *833 prolonged pressure throughout the remainder of the surgery, and in all reasonable medical probability, he would not have suffered permanent left upper extremity ulnar nerve injury and neuropathy for the reasons which I have discussed above. [Emphasis added.] The report thus includes Dr. Wagner's opinions on the elements of the manner in which the care rendered by Appellees failed to meet the applicable standards of care and the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). The report also links Appellees' purported breach of the applicable standards of care to Malcolm's alleged injuries. See Bowie Mem'l Hosp., 79 S.W.3d at 52 (requiring expert to explain the basis of his statements regarding causation and link his conclusions to the facts). We hold that Dr. Wagner's report represents an objective good faith effort to identify and set forth how Appellees breached the applicable standards of care and the causal relationship between that failure and the injuries claimed. Dr. Wagner's report indisputably informs Appellees of the specific conduct Appellants have called into question and provides a basis for the trial court to conclude that the Appellants' claims have merit. See Palacios, 46 S.W.3d at 879. We hold that the trial court's ruling otherwise was arbitrary or unreasonable, or without reference to any guiding rules or principles, and, thus, an abuse of discretion. We sustain the remainder of Appellants' third issue. VII. CONCLUSION Having overruled part of Appellants' second issue, we affirm the part of the trial court's order sustaining CTSG's objection that Dr. Wagner's report failed to show that he is qualified under section 74.402 to render an expert opinion as to CTSG's direct liability and dismissing Appellants' direct liability claims against CTSG. Having sustained the remainder of Appellants' second issue and all of their third issue, we reverse the trial court's order sustaining each of Appellees' other objections to Dr. Wagner's report and dismissing Appellants' claims against Dr. Dean and Dr. Tauriainen and their vicarious liability claims against CTSG. We remand the case to the trial court for further proceedings. NOTES [1] The other defendants included Dr. Mercer; Barnett-Wright; Dr. Moss, who placed Malcolm under general anesthesia for the procedure; and United Regional Health Care System, Inc., the hospital at which the surgery occurred. Dr. Mercer was the appellee in a separate appeal in which Appellants challenged the trial court's dismissal of their claim against Dr. Mercer for failure to comply with the civil practice and remedies code expert report requirements. See Barber v. Mercer, 303 S.W.3d 786, 788 (Tex.App.-Fort Worth 2009, no pet. h.). [2] The trial court also denied Appellants' request for a thirty-day grace period to provide an amended expert report as to Appellees, but Appellants have not appealed that portion of the trial court's order. [3] In their first issue in this appeal, Appellants ask this court to conclude that abuse of discretion continues to be the proper standard of review following the recodification of the Texas Medical Liability Act in 2003. Appellees agree that the standard of review is abuse of discretion. In the absence of supreme court authority instructing otherwise, we have continued to apply the abuse of discretion standard and do so here. See, e.g., Maris v. Hendricks, 262 S.W.3d 379, 383 (Tex.App.-Fort Worth 2008, pet. denied). [4] Dr. Wagner additionally states, "Anesthesiology may also be defined as continuity of patient care involving preoperative evaluation, intra-operative and postoperative care and the management of systems and personnel that support these activities." [Emphasis added.] [5] To the extent Dr. Dean argues that Dr. Wagner is not qualified to render an opinion for reasons other than the ground addressed above, we do not consider those waived objections because they were not raised in the trial court within twenty-one days after the date Dr. Dean was served with Dr. Wagner's report implicating Dr. Dean's conduct. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a); Maris, 262 S.W.3d at 384. [6] According to Dr. Wagner's curriculum vitae, which he fully incorporated by reference into his report, he has been the President and Managing Partner of Anesthesia Associates since 1986, he was the chairperson for the Department of Anesthesia at a Connecticut hospital, he was on the faculty of the Yale School of Medicine, he was an Assistant Professor of Anesthesia at the Yale School of Medicine, he was the CEO of Pain Therapy Consultants, and he was the director of an intensive care unit at a Connecticut hospital. [7] Regarding Appellants' direct liability claims, they alleged that CTSG negligently failed to supervise the quality of medical and health services for Malcolm. [8] To the extent CTSG challenges Dr. Wagner's report as to Appellants' allegations that CTSG is vicariously liable for the actions and inactions of Dr. Tauriainen and Dr. Dean, we have already ruled above that the report was sufficient to demonstrate Dr. Wagner's qualifications to render an expert opinion as to Dr. Tauriainen and Dr. Dean.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619217/	152 So.2d 530 (1963) Henry WILLIAMS, Appellant, v. Richard A. YOUNGBLOOD, individually, and John Stephen Youngblood, a minor, by his father and next friend, Richard A. Youngblood, Appellees. No. D-271. District Court of Appeal of Florida. First District. April 25, 1963. Will O. Murrell, Jacksonville, for appellant. Ralph Roberts, Jacksonville, for appellees. STURGIS, Judge. Henry Williams, defendant below, appeals from a final judgment entered in a negligence action pursuant to verdict of the jury in favor of plaintiffs, Richard A. Youngblood and his minor son, John Stephen Youngblood. The first count of the complaint, stating on behalf of John Stephen Youngblood, a minor, charged that defendant Henry Williams was the parent of Raymond Williams, a minor under the age of sixteen years, who was under the care, custody and supervision of said defendant; that "contrary to the law and statutes of the state of Florida, to-wit: Chapter 790.22, Fla.Statutes Annotated", said defendant did carelessly, negligently and knowingly permit his said infant child to use a powerful BB gun, and that said use was "not under the supervision and in the presence of an adult and at the time the said Raymond Williams lacked maturity, age, judgment and experience, and lacked the capacity to use the said dangerous BB gun properly, and that further the said Raymond Williams was an irresponsible infant"; that said infant "did 531 shoot Plaintiff, John Stephen Youngblood, in the eye with a projectile from the powerful BB gun"; and that as a direct and proximate result of "the aforesaid negligence" of the defendant father the plaintiff minor lost his eye and suffered other personal injuries and damages as therein alleged. The second count of the complaint, stating on behalf of the plaintiff father of the injured minor, realleged the above matters and further alleged that by reason of the premises he was deprived of the companionship and services of his son and "did necessarily lay out and expend divers sums of money in and about endeavoring to have his said son cured of his aforesaid injury." Motion of the defendant to dismiss the complaint for failure to state a cause of action was denied. Defendant filed an answer (1) denying the alleged negligence and (2) alleging contributory negligence on the part of the injured minor, John Stephen Youngblood. Appellant challenges the judgment appealed on three grounds: (1) That the court erred in denying the motion to dismiss the complaint; (2) that the court erroneously charged the jury; and (3) that the evidence is insufficient to support the verdict. The judgment must be reversed because of the errors complained of under grounds (1) and (2), supra. The theory of the case as stated by the complaint is that where a person suffers an injury from the discharge of a BB gun being used by or in the possession of a person under sixteen years of age, Section 790.22, Florida Statutes, F.S.A., imposes vicarious liability in tort upon the adult responsible for the welfare of such infant in those instances where the adult knowingly permitted the infant to use the BB gun or have it in his possession, regardless of negligence or lack of negligence in the use thereof. On that theory the trial judge charged the jury as follows: "(1) The use for any purpose whatsoever of BB guns, air rifles, and 22-calibre rifles by any child under the age of sixteen years is prohibited unless such use is under the supervision and in the presence of an adult. "(2) Any adult responsible for the welfare of any child under the age of sixteen years who knowingly permits such child to use or have in his possession any BB gun, air rifle, or 22-calibre rifle in violation of the provisions of subsection (1) of this section shall be subject to civil liability for any injury resulting as a natural and probable sequence of the violation of the statute." Appellant contends and we agree that the statute does not impose such vicarious liability under the facts of this case. We hold that the complaint herein did not state a cause of action because it failed to allege that the injury complained of proximately resulted from the negligent use of the BB gun in the possession of defendant's minor son, hence the motion to dismiss was improperly denied. The same error pervades the above quoted charge which, as we construe it, is tantamount to a directed verdict for the plaintiffs on the theory of vicarious liability of the defendant. Appellee relies on the case of Tamiami Gun Shop v. Klein, 109 So.2d 189 (Fla. App., 1959), in which Wigginton, J., a judge of this court then sitting with the District Court of Appeal of Florida, Third District, wrote the opinion. Certiorari to review that decision was granted by the Supreme Court of Florida and the writ was discharged pursuant to an opinion written by Hobson, J. See Tamiami Gun Shop v. Klein, 116 So.2d 421 (Fla. 1959). At first blush it might seem that the rule in Tamiami Gun Shop is applicable to the case on review, but careful analysis reveals that this is not so. The statute there involved is Section 790.18, Florida Statutes, F.S.A., making it unlawful for any dealer in arms to sell to minors any repeating rifle or other weapon described therein. There was also an ordinance of the City of Miami making it unlawful for any person to sell a deadly weapon to any minor under seventeen 532 years of age or to one between the ages of seventeen and twenty-one years without the express written approval of one of his parents or his legal guardian. The suit was by a minor against a dealer who contrary to the statute and ordinance sold the minor a prohibited firearm which was discharged while in his possession with resulting injuries to himself. The issue on the appeal in that case was whether the trial court erred in striking defendant's tendered defense of contributory negligence. The following excerpt from the opinion of Wigginton, J., is pertinent to this discussion: "In its attack on the propriety of the summary judgment relating to the issue of liability, appellant relies on many decisions of the Florida Supreme Court which hold as a general proposition that the violation of a traffic statute does not constitute negligence per se, nor is the violation itself necessarily the sole proximate cause of the damages claimed by the party asserting negligence. Appellant contends that even conceding it violated the statute and ordinance which prohibited the sale of firearms and deadly weapons to minors, such violation created a mere presumption of negligence which it had overcome by the evidence contained in the record. It further contends that under the applicable law, the question of whether the violation was the proximate cause of the damages suffered by plaintiff was a question for the jury, and not for the court. While the authorities cited by the appellant in support of its position on this assignment of error follow sound principles of law as related to the statutes there considered, they can be of little comfort to appellant under the facts revealed in this case. "We interpret the statute and city ordinance involved here as intending to protect the class of persons in which the plaintiff is included against the risk of the type of harm which did in fact occur. An unexcused violation is negligence in itself. The standard of conduct has been fixed by the lawmaking bodies and must be followed by the parties and the court alike. The effect of the law is to stamp the defendant's conduct as negligence with all the effects of common law negligence." (Emphasis supplied.) Mr. Justice Hobson, speaking for the Florida Supreme Court in discharging the writ of certiorari issued in the Tamiami Gun Shop case (116 So.2d 421), succinctly analyzed the type of statute here involved and stated the rule of law to be followed in determining whether vicarious civil liability exists in consequence of a violation, viz.: "Our research discloses that the almost universal American and English attitude is that where legislation prescribes a standard of conduct for the purpose of protecting life, limb, or property from a certain type of risk, and the harm to the interest sought to be protected comes about through breach of the standard from the risk sought to be obviated, then the statutory prescription of the standard will at least be considered in determining civil rights and liabilities. The authorities divide, however, on the effect to be given the statute. There are two main lines of decisions. Probably a majority of American courts have adopted the rule that the unexcused violation of such a statutory standard is negligence per se, that is negligence as a matter of law (to be ruled by the court). On the other hand, in a substantial number of jurisdictions such a violation is held to be merely evidence of negligence to be weighed by the jury. "In spite of this difference of judicial opinion, there appears to be one area wherein most authorities agree on the effect of the violation of the statute or ordinance. In considering this group of unusual and exceptional statutes, the courts usually find a legislative *533 intent to remove the defense of contributory negligence. Such statutes have been construed to place the entire responsibility upon the defendant and to require him to protect not only plaintiffs who are exercising reasonable care but those who are contributorily negligent as well. "Typically considered within this narrow classification are those cases involving child labor acts. Said acts are found to be intended to place all responsibility upon the employer, so that he is liable for injury to the child even though he has acted in good faith and has employed the infant in ignorance of his age. To this extent they impose strict or absolute liability. It has been held that the evident purpose of the statute would be defeated if the employer were permited to set up the contributory negligence of the child, and that the legislature must be taken to have intended that no such defense should be available. Statutes prohibiting the sale of firearms and similar dangerous articles to minors are held, for obvious reasons, to stand on the same footing as are acts requiring precautions for the protection of intoxicated or unusually ignorant people. "It is such decisions that have led the Restatement of Torts to state the principle as follows: "`If the defendant's negligence consists in the violation of a statute intended to protect a class of persons from their inability to exercise self-protective care, a member of such class is not barred by his contributory negligence from recovery for bodily harm caused by the violation of such statute.'" (Emphasis added.) The facts in the Tamiami Gun Shop case fell squarely into the emphasized concept of the foregoing quotation. The facts in the case on review do not. We pretermit any discussion of the rule that might prevail under different circumstances, e.g., where a child injured by his own negligence in using a BB gun sues an adult who is responsible for the child's welfare and amenable to such suit to recover damages for such injuries on the theory of vicarious liability for having knowingly permitted the child to use or have in his possession the BB gun. Whether vicarious liability exists in consequence of such statutes initially depends on the question of law as to whether the injured party seeking relief is a member of the class which the statute is designed to protect. If so, vicarious liability is visited upon the person infracting the statute, otherwise it does not exist. Applying that test to Section 790.22, Florida Statutes, F.S.A., we do not think it yields to a construction as having been designed to protect members of a class. It is essentially a criminal measure designed to protect the public generally against the indiscriminate use of the specified firearms by an infant under sixteen years of age. It follows, therefore, that in the instant case negligence of the defendant is a necessary element to the right of the plaintiffs to recover. Such negligence must exist with respect to the degree of care exercised in keeping the dangerous instrumentality (BB gun) out of the hands of the minor, and also with respect to the manner in which that instrumentality, having come into the hands of the minor, was used. It is elemental, of course, that the injury complained of must be the proximate result of such negligence. In view of our conclusions it is unnecessary to discuss the question of the sufficiency of the evidence to support the verdict. For the reasons stated, the judgment appealed must be and it is reversed and this cause is remanded for further proceedings consistent with the views expressed herein. Reversed and remanded. CARROLL, DONALD K., Chief Judge, and WIGGINTON, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1619321/	38 So.3d 1196 (2010) Gloria CLAY v. OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC. No. 09-1219. Court of Appeal of Louisiana, Third Circuit. June 2, 2010. 1198 Philip E. Roberts, Leake & Anderson, L.L.C., Lafayette, LA, for Defendant/Appellee, Our Lady of Lourdes Regional Medical Center, Inc. Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellant, Gloria Clay. Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges. THIBODEAUX, Chief Judge. The claimant/appellant, Gloria Clay, brought a workers' compensation claim against her employer, defendant/appellee, Our Lady of Lourdes Regional Medical Center, Inc. (Lourdes), for injury to her back while lifting solution supplies. A rehabilitation counselor provided information regarding potential employers. When Ms. Clay applied for but did not obtain employment, the OWC terminated her benefits after applying a credit in favor of Lourdes for the wages that Ms. Clay would have earned had she been employed by a particular employer. Ms. Clay appeals the termination of her benefits and the calculation of her average weekly wage (AWW) after the inclusion of fringe benefits. Where Ms. Clay attempted to obtain all positions suggested, we find that employment was unavailable to Ms. Clay and that the OWC applied an overly restrictive interpretation of the applicable law in terminating her benefits. We, therefore, reverse the judgment terminating Ms. Clay's benefits. We further find a misapplication of the statutory and jurisprudential provisions for calculating a claimant's AWW and reverse the OWC judgment on that issue as well. I. ISSUES We must decide: (1) whether the OWC erred in terminating Ms. Clay's workers' compensation benefits; and, 1199 (2) whether the OWC erred in calculating Ms. Clay's average weekly wage and fringe benefits. II. FACTS AND PROCEDURAL HISTORY On June 28, 2005, Gloria Clay, who had been employed with Lourdes for a total of twenty-two years, sustained a back injury while lifting and pulling heavy solution bags from twenty carts. She began to have spasms in her upper back on the first day, and by the end of the second day, June 29, the pain went down her back and into her left leg. The injury caused Ms. Clay pressure in her back, a ten (10) on the pain scale, with burning, pulling sensations in her left buttock worsened by sitting, standing, and walking. Ms. Clay was treated with medication, physical therapy, and a lumbar epidural steroid injection. When this worsened her pain, she was referred to a neurosurgeon, Dr. Bertuccini, who diagnosed symptomatic spinal stenosis at L4-5. He opined that injury can cause this degenerative condition to become symptomatic and recommended lumbar decompression surgery at the initial visit in December of 2005. Lourdes did not authorize payment for the prescriptions and surgery recommended by Dr. Bertuccini until May of 2007. Lourdes obtained an order compelling vocational rehabilitation in February of 2008. A vocational rehabilitation counselor provided information regarding jobs that were ostensibly available to Ms. Clay. She applied for all of the jobs suggested, including those at a medical facility, but was unable to obtain employment. Ms. Clay received at least two rejection letters based upon her unmatched skills and qualifications. Lourdes did not offer Ms. Clay a position similar to either of the hospital positions recommended by the vocational counselor. The OWC found that a recommended job at Stuller Settings was available to Ms. Clay in August of 2008, even though Ms. Clay had received a rejection letter from Stuller. The OWC further found that actual job placement was not a requirement for proof of availability of employment. Lourdes terminated Ms. Clay's benefits in December of 2008 pursuant to the OWC ruling at trial during that same month. The OWC issued a judgment finding that Ms. Clay was entitled to weekly wage benefits of $252.03, based upon an AWW of $378.05, from December 28, 2005 through August 25, 2008, subject to a credit for wage benefits already paid. The judgment awarded Ms. Clay $8,000.00 in penalties for four failures by Lourdes to timely pay medical related benefits, as well as attorney fees in the amount of $10,000.00. Ms. Clay appealed the judgment on the issues of termination of benefits and the calculations of average weekly wages and fringe benefits. Lourdes answered the appeal and listed errors for review, but failed to file its brief. Issues not briefed are deemed abandoned. See Uniform RulesCourts of Appeal, Rule 2-12.4. We find that the OWC applied an overly restrictive interpretation of Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, resulting in a termination of benefits in this case. Therefore, we reverse the OWC judgment on the issue of termination of benefits, reinstating Ms. Clay's benefits from the date of termination, August 25, 2008, forward. We further reverse the OWC on its calculation of Ms. Clay's AWW and fringe benefits due to incorrect methodology and misinterpretation of the applicable law. We increase the award of attorney fees by $5,000.00 for work done by Ms. Clay's attorney on appeal. 1200 III. LAW AND DISCUSSION Standard of Review When an appellate court finds that a reversible error of law was made in the lower court, it must conduct a de novo review of the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840 (La.1989). Termination of Benefits Ms. Clay contends that the OWC erred in terminating her benefits. We agree. The workers' compensation judge stated at trial that the vocational rehabilitation counselor, Ms. Montero, "attempted jobs that were suitable" and that under Banks, 696 So.2d 551, actual "job placement is not required." Counsel for Ms. Clay argues that the positions were not suitable and that, since Ms. Clay applied for all positions submitted and was turned down in every case, those jobs were not available to her under La.R.S. 23:1221(3)(c)(i). The record reveals that Ms. Clay was a fifty-six-year-old widow with three grown daughters when she met with the vocational rehabilitation counselor for the first time on March 31, 2008. She had graduated from high school in 1971 but had had no additional schooling. Ms. Clay had worked for Lourdes as a supply, purchasing, and distribution clerk from 1975 to 1986 and again from 1995 until the time of her injury in June 2005. In the nine-year interim between her two periods of employment with Lourdes, Ms. Clay had taken care of her grandmother. Her only other employment was a two-month temporary position making pies for a bakery. At Lourdes, she stocked shelves and pulled and delivered medical supplies, occasionally entering patient charges onto a form in a computer. Ms. Clay did not own a computer and denied computer literacy. Her rate of pay with Lourdes was $9.95 per hour. Ms. Clay argues that she met her burden of proving that she could not earn ninety percent (90%) of her pre-injury wages because she could no longer stock medical supplies and because none of the clerical jobs submitted were available to her wherein she had applied but was turned down for each one. She correctly argues that under La.R.S. 23:1221(3)(c)(i), the burden then shifted to Lourdes to prove that the jobs were available. More specifically, La.R.S. 23:1221(3)(c)(i) (emphasis added) provides in pertinent part that supplemental earnings benefits shall be paid: [I]f the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee's or employer's community or reasonable geographic region. Accordingly, as Ms. Clay argues, the clear language of the statute requires that the jobs be "proven available to the employee." In Banks, upon which the OWC relied for the proposition that actual job placement is not necessary, the primary issue was the employer's proof of availability, and the holding in that case squares off directly in favor of Ms. Clay, particularly in view of the court's explanation of suitability. 1201 In Banks, the Louisiana Supreme Court reversed the Second Circuit Court of Appeal and reinstated the OWC's finding that the employer had failed to demonstrate that jobs were available to the claimant. Banks had been a roofer's helper when a bundle of shingles fell on his right hand, dislocating and fracturing his right thumb, requiring an open reduction and internal fixation, and a repair of ligament structures the day after the accident. Similar to the facts in this case, the vocational rehabilitation counselor in Banks completed an initial evaluation and performed a transferrable skills analysis. Banks was a forty-four (44) year-old high school graduate who had been an orderly, a cook, and a baker's helper prior to his employment with Industrial Roofing as a roofer's helper. It was undisputed that Banks was partially disabled and unable to return to his pre-injury employment as a roofer's helper. Where Banks had proved partial disability, the question before the court was whether the employer had carried its burden of proving that there were jobs available to Banks within his physical capabilities that would pay him ninety percent (90%) or more of his pre-injury wage. In discussing job availability, the court resolved conflicts in the courts of appeal by concluding that an employer could discharge its burden of proving job availability by establishing, at a minimum: (1) the existence of a suitable job within claimant's physical capabilities and within claimant's or the employer's community or reasonable geographic region; (2) the amount of wages that an employee with claimant's experience and training can be expected to earn in that job; and [(]3) an actual position available for that particular job at the time that the claimant received notification of the job's existence. Banks, 696 So.2d at 557 (emphasis added). In Banks, the claimant's post-injury limitations were no gripping or pinching and no lifting over fifteen (15) pounds. The rehabilitation counselor identified five jobs for Banks: (1) tractor-trailer driver; (2) unarmed security guard; (3) pest control trainee; (4) cab driver; and, (5) dispatcher. The OWC in Banks determined that the cab driver position was outside the limitations assigned to Banks as it required him to lift fifty pounds. As to the remaining jobs, the OWC found that there was insufficient evidence regarding each job's qualifications and physical requirements, wages, and actual openings on the date the jobs were made known to Banks, to determine whether the jobs were within Banks' capabilities. The Louisiana Supreme Court upheld the judgment of the OWC. In the present case, Dr. Bertuccini released Ms. Clay to light duty work in October 2007, following her surgery five months earlier in May. He deferred to her pain management physician, Dr. Jindia, for approval of jobs submitted by the vocational rehabilitation counselor. Dr. Jindia was still treating Ms. Clay in August of 2008, with medication and injections, for chronic low back and left leg pain, weakness in the lower extremity, and post lumbar laminectomy pain syndrome with left lumbar radiculitis. He opined that she could physically do clerical work as long as she could alternate sitting, standing, and walking, with minimal lifting and bending of her back. The vocational counselor, Ms. Montero, reported that Ms. Clay's transferrable skills included "WritingCommunicating effectively with others in writing as indicated by the needs of the audience," though there was no evidence in the record 1202 that Ms. Clay had, or used, writing skills in her employment. Another skill assigned to Ms. Clay was "Reading comprehensionUnderstanding written sentences and paragraphs in work related documents," though there was no evidence that Ms. Clay worked with correspondence in her employment. Ms. Montero further reported that alternate job types for Ms. Clay included general office clerk, library clerk, insurance claims clerk, and medical records clerk. Ms. Montero located mostly clerical positions with duties outside of Ms. Clay's experience and training. Ms. Montero admitted at the hearing that Ms. Clay had applied for all of the positions submitted. Ms. Montero located four positions for Ms. Clay that were approved by Dr. Jindia. These included two positions at Medical Center of Southwest Louisiana: (1) Administrative AssistantHuman Resources Department (to assist department with credentialing of medical personnel); and (2) Service Coordinator (to provide clerical support for engineering programs, answer phone, and maintain files). Ms. Clay applied for but was unable to obtain either of these positions. Two other approved positions were (3) front desk receptionist with Norman Dykes, M.D. The duties at Dr. Dykes' office included maintaining an appointment book, and preparing bills and insurance forms. Ms. Clay received a letter of rejection from Dr. Dykes' office stating that they had "chosen to pursue other candidates whose skills, background, and education more closely match our needs." The fourth approved position was a telephone consultant position with Stuller Settings, processing jewelry merchandise orders by phone. It provided thirty to forty hours of work per week. Ms. Clay applied for this position and was rejected by a letter stating that, "we have identified a candidate who more closely matches our requirements." Therefore, in this case, we have the issue of suitability of the positions suggested to Ms. Clay, who applied for all of them and was rejected. In fact, Ms. Clay testified that she had applied for positions at Bait House, Holiday Inn South, Maison de Lafayette, Bravo Physical Therapy, and she had applied twice at Stuller Settings, eleven positions in all, and was turned down for each and every one. Suitability is a function of availability. It appears in the first of the three criteria set forth above by the Supreme Court in Banks. More specifically, after stating the three minimum requirements for establishing availability, the first of which is a suitable job within the claimant's physical capabilities, the court articulated as follows: By "suitable job," we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant's age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education. (FN3) (FN3.) We are cognizant that LSA-R.S. 23:1221(3)(a) provides that an employee's post-injury earning capacity is to be determined by what "the employee is able to earn in any ... employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience...." Our consideration of an employee's "age, experience, and education" is not to ensure that an employee is "particularly suited" for a given post-injury job, but, rather, to ensure that the employee is 1203 capable of performing the job. For example, suppose that an employee had been engaged in heavy manual labor prior to his injury, but is now limited to light duty labor as a result of a work-related injury. Suppose also that the employee is illiterate. Under these circumstances, the mere fact that the employee would be physically able to perform secretarial duties does not mean that that job would be suitable for that employee. We interpret the above-quoted language in LSA-R.S. 23:1221(3)(a) to mean only that an employee cannot discount a job, for the purpose of calculating post-injury earning capacity, that falls within the limits of his physical capabilities, age, experience, and education simply because he is not "particularly suited" for the job. For example, suppose that the hypothetical employee had a college education. He could not protest the suitability of a job that required only a high school education by asserting that the proposed job was beneath his capabilities. Banks, 696 So.2d at 557, n. 3 560 (emphasis added). In this case, Ms. Clay's experience was essentially as a physical laborer stocking and distributing supplies and equipment, with no office experience and almost non-existent computer skills. Her only job experience outside Lourdes was baking pies. Based upon the foregoing, we find that the positions submitted to and applied for by Ms. Clay were not suitable for her and were, therefore, unavailable to her under La.R.S. 23:1221 and under Banks. Calculation of Actual Average Weekly Wage It is undisputed that Ms. Clay was a forty-hour-per-week, full time, hourly employee, paid bi-weekly, in twenty-six checks per year. Her pay rate with Lourdes was $9.25 per hour. The OWC calculated Ms. Clay's AWW at $378.05 based upon two check stubs indicating wages paid to her by Lourdes for the four weeks preceding her injury on June 28, 2005. The gross earnings on the check stub for the two-week period ending June 25, 2005, was $772.19, and the gross earnings on the check stub for the two-week period ending June 11, 2005, was $740.00. According to the OWC calculation, $772.19 plus $740.00 equals $1,512.19, which, divided by two, results in an AWW of $378.05. The OWC declined to consider Ms. Clay's fringe benefits, or a bonus that she earned during the applicable period, in calculating the AWW. While the OWC was correct in rejecting an AWW based upon twenty six weeks of fringe benefits, as argued by counsel for Ms. Clay, the OWC's calculations and methodology are incorrect, as are those of counsel for Ms. Clay, who arrived at an AWW of $430.49. We find that Ms. Clay's AWW was $416.71, which is the sum of her actual or baseline wage of $370.00 ($9.25 × 40) plus averaged weekly fringe benefits of $27.75 for paid time off (PTO) and $11.56 for extended illness time (EIT), plus a bonus averaged at $7.40 per week. The method for calculating the actual wages of $370.00 is located at La.R.S. 23:1021(12)(a)(i), while the formula for calculating the bonus is located at subsection (12)(d), and the provision applicable to fringe benefits is subsection (12)(f). With regard to Ms. Clay's baseline or actual wage of $370.00, La.R.S. 23:1021(12)(a)(i) provides as follows (emphasis added): (12) "Wages" means average weekly wage at the time of the accident. The average weekly wage shall be determined as: 1204 (a) Hourly wages. (i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater .... Accordingly, if a full-time, forty-hour employee actually works less than forty hours per week in the four full weeks prior to her accident, she is entitled to the "greater" presumption of forty hours per week. While it is true that Ms. Clay used paid time off, or vacation time, during the four full weeks preceding the injury, such that she did not actually work forty hours per week during that period, because she is a full-time employee, she is entitled to the presumption of having worked forty hours under La.R.S. 23:1021(12)(a)(i). Therefore, Ms. Clay's AWW is $370.00 ($9.25 × 40).[1] Fringe Benefits With regard to the use of fringe benefits in calculating a claimant's AWW, we have held as follows: [T]he inclusion of fringe benefits into the calculation of AWW is a very well and long established rule, dictated by an explicit mandate of La.R.S. 23:1021(12)(f) and decades of our jurisprudence. See e.g. Sterling v. Asplundh Tree Expert Co., 03-266 (La.App. 3 Cir. 10/1/03), 856 So.2d 125, writ denied, 03-3017 (La.1/30/04), 865 So.2d 79; Batiste v. Capitol Home Health, 96-799 (La.App. 3 Cir. 5/7/97), 699 So.2d 395; Morgan v. Equitable Gen. Ins. Co., 383 So.2d 1067 (La.App. 3 Cir.1980); Ardoin v. S. Farm Bureau Cas. Ins. Co., 134 So.2d 323 (La.App. 3 Cir.1961); Richmond v. Weiss & Goldring, Inc., 124 So.2d 601 (La.App. 3 Cir.1960). Cotton v. First Fleet, 08-1363, p. 7 (La. App. 3 Cir. 4/1/09), 7 So.3d 155, 159, writ denied, 09-978 (La.6/19/09), 10 So.3d 741. In fact, so settled is this area of the law that we have affirmed penalties against an employer who deliberately chose to remain ignorant of the law with respect to the valuation of fringe benefits in the calculation of an injured worker's wage rate. See Johnson v. Louisiana Container Co., 02-382 (La.App. 3 Cir. 10/2/02), 834 So.2d 1052, 1067, writ denied, 02-3099 (La.5/9/03), 843 So.2d 394. The Louisiana Supreme Court has stated: In determining the amount of pre-injury wages an employee earned, "[a]ny money paid the employee which can be regarded as remuneration or reward for his services should be included in fixing his compensation, irrespective of whether or not the payment was in the form of wages." Malone and Johnson, 14 Louisiana Civil Law Treatise, Workers' Compensation § 324 at 93 (1980). 1205 Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007-08 (La.1989). In Sterling, 856 So.2d 125, we affirmed the OWC's inclusion of fringe benefits, ten days of vacation and five days of holiday pay, when calculating the claimant's AWW. We cited the essentially identical predecessor of La.R.S. 23:1021(12)(f), which was La.R.S. 23:1021(10)(f), effective on August 15, 1999, for the proposition that fringe benefits are taxable and therefore includable in the AWW. The current version, La.R.S. 23:1021(12)(f) provides as follows (emphasis added): (f) Income tax. In the determination of "wages" and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee's wage and average weekly wage including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee's wage and average weekly wage. In Sterling, we stated that the issue regarding the inclusion of paid holiday and vacation time was whether those forms of compensation were taxable or not. We went on to hold that: Any fringe benefit that an employer provides is taxable and must be included in the recipient's pay unless that fringe benefit is specifically excluded by the law. EMPLOYER'S TAX GUIDE TO FRINGE BENEFITS PUB. 15-B (Dept. of the Treasury, Internal Rev. Serv., Jan. 2003). Sterling, 856 So.2d at 130. We then listed excluded fringe benefits such as meals, stock options, group term life insurance, and other specifically excluded benefits. Since the fringe benefits of vacation and holiday pay in Sterling were not excluded by law, they were included in the AWW calculation. Likewise, in Burns v. St. Frances Cabrini Hospital, 02-518 (La.App. 3 Cir. 10/30/02), 830 So.2d 572, we held that PTO, sick leave, holiday pay, and vacation pay were rewards to hourly employees for services to the hospital and were properly included in the calculation of the claimant's AWW pursuant to Daigle. In G.N.B., Inc. v. Jones, 29,779 (La.App. 2 Cir. 8/20/97), 699 So.2d 466, the baseline or actual AWW was increased by $35.67 for 160 hours of vacation pay valued at $1,854.40 ($1,854.40 ÷ 52 = $35.67) and was increased by $21.40 for ninety-six (96) hours of holiday pay valued at $1,112.64 ($1,112.64 ÷ 52 = $21.40). Additionally, the weekly value of insurance and other benefits, $87.28, was added to the weekly cash wage of $463.60 for a total AWW of $607.95.[2] In Pool, 714 So.2d 153, an economics expert testified that the claimant's medical and retirement benefits, plus compensated 1206 time off, equaled $106.67 per week. After adjusting the actual wage to $455.67, to include overtime as shown above, the second circuit affirmed the OWC's addition of $41.38 for medical insurance, $18.60 for retirement benefit, and $46.69 for compensated time off, for a total AWW of $562.34. In Moses v. Grambling State University, 33,185 (La.App. 2 Cir. 5/15/00), 762 So.2d 191, writ denied, 00-1769 (La.9/22/00), 768 So.2d 1285, the court held that the claimant's AWW of $352.08 should be increased by $44.76 for weekly insurance benefits, $43.66 for weekly retirement benefits, and by $59.13, the weekly value of fourteen hours of annual leave and fourteen hours of sick leave per month, for a total AWW of $499.62. In the present case, Monica Hornsby, employed by Lourdes for twenty-six years, and responsible for timekeeping and payroll, testified that Ms. Clay, an hourly employee, does not get credit for time earned if she is out sick or otherwise absent. However, she earns six (6) hours of paid time off (PTO) on each of her twenty-six pay-checks, that is six hours for every eighty (80) hours worked. Ms. Hornsby also testified that each employee earns two and a half hours (2.5) of extended illness time (EIT) per pay period. This is kept in a separate "bank" and is tracked on the check stub as well. Based upon the testimony of Ms. Hornsby, we find that Ms. Clay received an average weekly fringe benefit of PTO in the amount of $27.75 (6 × 26 = 156 hrs/per/yr ÷ 52 wks = 3 hrs/per/wk × $9.25 = $27.75). We also find that Ms. Clay received an average weekly fringe benefit of EIT in the amount of $11.56 (2.5 × 26 = 65 hrs/per/yr ÷ 52 wks = 1.25 hrs/per/wk × $9.25 = $11.56). With regard to holiday pay under Sterling, Burns, and Jones, Kevin Domingue, Lourdes' director of human resources, testified that the employees receive holiday pay, and if they work on a holiday, they earn holiday overtime at the rate of one and one half times their regular hourly wage. In Ms. Clay's case, that is $13.88 per hour ($9.25 × 1.5 = $13.88). The personnel manual proffered by Lourdes indicates the provision of seven (7) paid holidays. However, if an employee is scheduled to be off on a holiday, the time is charged from the employee's PTO bank. Therefore, in this instance, regular holiday pay is already accounted for in the PTO calculation above. In the event that an employee is scheduled by Lourdes to work on a holiday, that employee is paid an additional amount for holiday overtime. Overtime is used for calculating the AWW, but only during the four full weeks preceding the injury. Therefore, while Ms. Clay earned $333.24 in holiday overtime according to her year-to-date information, she did not earn it during the applicable pay periods, and we will not assign an additional amount for holiday pay in this case.[3] In the present case, the OWC and Lourdes cited Ivory v. Southwest Developmental Center, 07-1201 (La.App. 3 Cir. 1207 3/5/08), 980 So.2d 108, for the proposition that fringe benefits are not added to the actual earnings. Ivory is inapplicable. There, the employee was injured six months after being employed with the defendant, and the panel found that there was no evidence of fringe benefits having been received. Lourdes, with apparent approval of the OWC, interpreted this to mean that a fringe benefit, such as PTO or holiday pay, must be "used" and "received" and appear on the check stub for the four-week period prior to injury. This is not true. Ms. Clay worked for Lourdes for a total of twenty-two years. Her vacation pay and other fringe benefits would have an added value even if she had not used them in the weeks prior to her injury. Moreover, as shown above, weeks used for vacation in the four weeks immediately preceding the injury are specifically not used in the calculation of the AWW because they are not full weeks. Likewise, there has been a tendency to misinterpret subsection (f) as requiring that a specific benefit must have been received on a check and therefore "taxed" before being considered in a claimant's AWW. We disagree with this interpretation, as discussed below, because subsection (f) requires benefits to be "taxable," not "taxed." Ivory held that only paid leave used during the four weeks preceding the accident was includable in calculating the AWW, that paid holidays were not includable for an hourly employee, that benefits were only taxable when they were used, and that fringe benefits were already included in the hourly rate. As indicated in the above jurisprudence and reasoning, these holdings are not reconcilable with the law on fringe benefits and are inapposite as precedent in calculating an hourly employee's total AWW. In part, Ivory falls out of accord with established jurisprudence on holiday pay and with La.R.S. 23:1021(12)(f), due to its reliance upon Anderson v. Eckerd Corp., 04-1053 (La.App 1 Cir. 5/6/05), 915 So.2d 901, writ denied, 05-1520 (La.1/9/06), 918 So.2d 1044, which declined to add amounts for paid holiday and vacation benefits to a salaried employee's AWW. Anderson is too brief to shed any light on the subject, but it refers to the claimant's salary and cites Moses, 762 So.2d 191, which also addressed a salaried employee. The court in Moses, as indicated above, increased the AWW for annual and sick leave and other benefits, but not for vacation and holiday benefits. In Burns, 830 So.2d at 575, we distinguished Moses as follows: In Moses, the employee was paid an annual salary, not an hourly wage like Mr. Burns and the employee in G.N.B., Inc. In the memorandum to "All Employees" regarding "Paid Time Off" and "Extended Sick Leave," Cabrini describes "Paid Leave" as "hours for use as time away from work for the purpose of vacation/holiday, personal business, family illness and/or short-term personal illness." There is no indication that without this policy hourly employees, like Mr. Burns, would be paid for holidays, unless they worked those days. According to this policy, holiday pay is the same as vacation and sick leave: employees are rewarded with these benefits for their service to the hospital. Pursuant to Daigle, 545 So.2d 1005, Mr. Burns' holiday pay was properly included in the AWW calculation. Ivory's reliance on Anderson, and therefore Moses, is therefore misplaced where Ivory was also an hourly employee. Further, Ivory is self-conflicting because it cites our decision in Sterling, which held that vacation and holiday pay are taxable and includable in the AWW. According to Ivory, the claimant did not receive "any fringe benefits which were specifically excluded from income taxation." Ivory, 980 1208 So.2d at 115. Ivory then fails to add them to the AWW calculation. Ivory then found that the claimant's sick leave, annual leave, and compensatory time were only taxable when used, which is not what La.R.S. 23:1021(12)(f) provides. Ms. Clay earned a bonus of $384.80, which covered a full year ending with the pay period June 25, 2005, and which was reflected in a separate pay-check dated July 1, 2005. Lourdes argued at trial that this bonus should not be considered in calculating the AWW because it was not taxed to Ms. Clay until the check was cut on July 1, 2005, which was after the injury on June 28, 2005. We disagree, as stated above. The bonus was for the pay period ending June 25, just days before the injury. Therefore, it was earned prior to the injury. Mr. Domingue testified that Ms. Clay, along with thirty-three percent of Lourdes' employees, had been at the top of her pay scale and had gone without raises for at least two years. Lourdes, therefore, paid those employees a bonus for the fiscal year ending in June 2005. The bonus was for two percent (2%) of Ms. Clay's annual earnings ($9.25 × 2080 × .02 = $384.80). Accordingly, we find that Ms. Clay's bonus should be calculated as an element of her total AWW. The Louisiana Supreme Court in Daigle, 545 So.2d 1005, held that two incentive bonuses of the salaried employee would fit more neatly into the AWW if calculated as "other wages" under La.R.S. 23:1021(10)(d). The current provision is located at La.R.S. 23:1021(12)(d) and provides in pertinent part as follows: (d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week[.] If we calculate Ms. Clay's bonus using subsection (d), we find that she actually worked 114 days, an average of 4.4 days per week, in the twenty-six week period preceding the injury. Using the above formula, we arrive at a weekly benefit of $7.44 ($384.80 ÷ 2 = $192.40 ÷ 114 = $1.69 × 4.4 = $7.44). However, the court in Daigle provided in a footnote that it did not use this formula in its previous decision involving an hourly employee in Allor v. Belden Corporation, 393 So.2d 1233 (La.1981).[4] In Burns, involving an hourly employee, we included in the AWW calculation a three percent lump sum bonus of $713.24. There, we simply divided the bonus amount by fifty-two and arrived at a weekly bonus benefit of $13.72. Accordingly, we will use the calculation method in Burns, which in this case results in a weekly bonus benefit of $7.40 ($384.80 ÷ 52 = $7.40). This brings Ms. Clay's total AWW to $416.71.[5] 1209 IV. CONCLUSION Based upon the foregoing, we reverse the OWC judgment terminating Ms. Clay's benefits where she was no longer physically able to stock medical supplies and where the clerical and office positions submitted by the vocational rehabilitation counselor, and applied for by Ms. Clay without avail, were unsuitable and unavailable to her under La.R.S. 23:1221 and under Banks. We further reverse the OWC's calculation of Ms. Clay's total AWW, finding that her correct AWW is $416.71, which includes an actual wage of $370.00 plus a weekly PTO benefit of $27.75, a weekly EIT benefit of $11.56, and a weekly bonus benefit of $7.40. We award an additional $5,000.00 in attorney fees for work done by Ms. Clay's attorney on appeal. REVERSED AND RENDERED. NOTES [1] We have considered the holdings in Doucet v. Crowley Manufacturing, 96-1638 (La.App. 3 Cir. 4/30/97), 693 So.2d 328, vacated on other grounds, 97-1438 (La.9/19/97), 701 So.2d 143, and Transportation Insurance Co. v. Pool, 30, 250 (La.App. 2 Cir. 5/13/98), 714 So.2d 153, writs denied, 98-1566, 98-1616 (La.9/25/98), 725 So.2d 486, 488, where the courts did not use vacation weeks to calculate the AWW, using the logic that "four full weeks" meant four weeks with no absences. However, reaching back to capture non-vacation weeks is an unnecessary step where the employee is a forty-hour, full time employee who gets the presumption under 12(a)(i) of a forty-hour work week in calculating his or her AWW. Moreover, we believe that the term "four full weeks" means using a normal, full-week pay period, such as Monday through Friday, rather than starting the calculation, say, in mid-week on the day before the accident; and it does not mean that you have to use non-vacation weeks if the employee is a full time, forty-hour employee. [2] We note that in Jones and other cases involving injuries occurring before August 15, 1999, when subsection (f) was added to La. R.S. 23:1021(10), now appearing as 23:1021(12)(f), the courts included as fringe benefits the insurance premiums and retirement benefits that were paid by the employer. After the 1999 amendment adding subsection (f), only the employee's portion of the insurance premium is includable in the AWW as a fringe benefit, because the non-wage or fringe benefit, to be includable, must be taxable to the employee. La.R.S. 23:1021(12)(f). [3] Ms. Clay apparently worked three holidays during the year as of the pay stub dated 6/03/05 ($333.24 ÷ $13.88/hr = 24 hrs = 3 days). However, as indicated, Ms. Clay's holiday overtime pay would be calculated in the AWW as overtime if it had occurred during the applicable pay periods, not as a fringe benefit, because the basic holiday pay fringe benefit is characterized by Lourdes as part of the PTO benefit. It seems appropriate to here insert the observation from the above jurisprudence that fringe benefits are often averaged over a fifty-two week period and added to the actual or baseline AWW, which, including overtime, is calculated under La.R.S. 23:1021 and covers the four full weeks preceding the injury. Some parties arrive at inaccurate figures, and inaccurate reasoning, when they conclude that fringe benefits are "included" in the claimant's AWW and then fail to add the non-wage benefit to the actual wage earned. [4] We are also aware that Daigle used a two-part incentive bonus paid to the claimant before his accident in May and indicated in a footnote that there was another incentive bonus paid in August, after the accident, for the first half of the year (presumably for January through June). This third bonus was not included in the calculation of AWW, not even on a prorated basis. Notwithstanding, we have included Ms. Clay's bonus which was earned entirely by June 25, 2005 and paid to her only days after the injury on June 28, 2005, where Ms. Clay's bonus was in lieu of an annual raise, while the Daigle bonuses were based upon sales volume and profit goals. [5] We note that two of Ms. Clay's three check stubs in evidence show a deduction from her wages of $37.20 which is described simply as "health." We are assuming that this entry constitutes a health insurance premium deducted by the employer for Ms. Clay's portion of a health insurance benefit. Even though this deduction is not shown on Ms. Clay's check stub as a taxable amount, under La.R.S. 23:1021(12)(f), this appears to be a specifically includable benefit which would increase her AWW by another $18.60. However, there was no testimony, argument, or additional evidence regarding this premium that would allow us to include it in Ms. Clay's AWW. Moreover, where the premium was not withheld from one of the three check stubs in evidence, with no explanation as to why, we will not include the premium in our calculation of AWW based upon insufficient information.	01-03-2023	10-30-2013

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