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https://www.courtlistener.com/api/rest/v3/opinions/1619231/ | 152 So. 2d 631 (1963)
Frank CRANE et al., Plaintiffs-Appellants,
v.
Clarence LONDON et al., Defendants-Appellees.
No. 9916
Court of Appeal of Louisiana, Second Circuit.
April 1, 1963.
*632 Nelson & Gray, Shreveport, for Frank Crane, Mrs. Mary Louise Crane, Thomas Motor Freight, Inc., and The Travelers Indem. Co., plaintiffs-appellants.
Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for Clarence London, S. H. Bates, Jr., and Canal Ins. Co., defendants-appellees.
Before GLADNEY, AYRES, and BOLIN, JJ.
AYRES, Judge.
This is an action in tort wherein plaintiffs seek to recover damages sustained in a motor vehicle collision of June 5, 1959, on U. S. Highway 84, about nine miles west of Mansfield. Involved in the collision were a Ford car of the Thomas Motor Freight, Inc., driven at the time by Frank Crane, who was accompanied by his wife and minor son, and a Ford log truck of S. H. Bates, *633 Jr., driven by his employee, Clarence London.
Plaintiffs are Frank Crane and his wife, Mrs. Mary Louise Crane, and the Thomas Motor Freight, Inc., and the latter's insurer, The Travelers Indemnity Company. The defendants, in addition to Bates and London, are the former's insurer, the Canal Insurance Company.
Plaintiffs Thomas Motor Freight, Inc., and its insurer seek to recover property damage sustained in the accident to the automobile. Mrs. Crane seeks to recover damages for personal injuries sustained by her. Frank Crane not only seeks to recover damages for personal injuries sustained by him but also for hospital and medical expenses incurred in the treatment of himself and his wife, as well as the loss of his wife's earnings.
The trial court concluded that Clarence London was guilty of negligence in attempting a left turn without having first ascertained that the maneuver could be made in safety. Crane was held contributorily negligent in failing to give an audible warning signal of his intention to effect a passing movement, or to have his vehicle under control, or to maintain a proper lookout. Accordingly, judgment was rendered in favor of the plaintiff, Mrs. Mary Louise Crane, against the defendants, in solido, for the sum of $5,000.00. The demands of the other plaintiffs were rejected. All plaintiffs have appealed from the judgment. The defendants, in answering the appeal, pray that the judgment appealed be amended by rejecting the demands of Mrs. Crane.
The facts relating to the occurrence of the accident may be summarized. The highway where the incident occurred is of a 2-lane asphalt or black-top surface. For an appreciable distance in both directions from the scene of the accident, the highway is straight. Other than for the highway surface being wet, there were no unusual atmospheric conditions prevailing during the midmorning when the collision occurred. Both vehicles were proceeding westerly, the truck in the lead at about 35 m. p. h., with the automobile trailing at some distance. Due to its greater speed, the automobile, however, overtook the forward vehicle at a distance of approximately 400 feet beyond the top of a hill. London attempted to make a left turn off the highway into a local road, whereupon Crane, who had already begun a passing movement, crashed into the truck. The right front of the car struck the left rear dual wheels of the truck.
Thus, immediately preceding the accident, the truck was proceeding in the righthand traffic lane, the car, in the left lane for a passing movement. As the car approached the truck, and when a distance of only 24 feet separated them, according to Crane's estimate, the driver of the truck suddenly swerved his vehicle into the left lane for the purpose of effecting a left turn. Crane responded by immediately sounding his horn and applying his brakes. His car, nevertheless, skidded, as aforesaid, into the left rear of the truck.
The testimony is conflicting as to whether London gave a signal indicative of his intention to make a left turn. London and a schoolboy accompanying him testified that such signal was given. This fact is emphatically denied by Crane who testified as to his constant surveillance of the truck as it proceeded ahead. From their preoccupation with other matters, neither Mrs. Crane nor the son could detail the manner of the occurrence of the accident.
The testimony leaves no basis to question the correctness of the conclusion reached by the trial court that London was guilty of negligence constituting a proximate cause of the accident. If he gave a signal of his intention to make a left turn, the record does not disclose when or where such signal was given.
Principles are well established in the jurisprudence, as well as by statute, that a motorist, before turning from a direct line upon a highway, shall first see that such movement can be made in safety; that *634 whenever the operation of any other vehicle may be affected by such movement, the motorist shall give a signal plainly visible to the drivers of such other vehicles of his intention to make the turn. Responsibility for ascertaining that a left turn across a highway can be safely made is placed upon the motorist attempting the maneuver. It is not sufficient that the motorist be content with merely holding out his hand or putting on his directional-signal indicator; he should look before turning to see that such movement can reasonably be made in safety.
London admitted that, for some distance and for some appreciable length of time, he never looked back before attempting his left turn, although he was aware of the presence of plaintiff's vehicle approaching from the rear. His failure to thus keep and maintain a proper lookout and to ascertain that a left turn could be made in safety, before proceeding with his turn, was negligence constituting a proximate cause of the accident.
The remaining issues relate to a question of Crane's contributory negligence. In the establishment of such fact the defendants have the burden of proof. The plea of contributory negligence is based upon the contention that Crane attempted a passing movement at a road intersection without sounding his horn as a warning of his intention to pass and that he failed to maintain a proper lookout or to keep his vehicle under control.
We are in accord with the trial court's exoneration of plaintiff of the charge that he attempted a passing movement at an intersection. The intersecting road is a narrow dirt road neither posted nor marked by signals or lines indicating a no-passing zone. The road was not an intersecting highway within the intendment and purpose of the statute (LSA-R. S. 32:233, subd. E), prohibiting the overtaking and passing of motor vehicles at intersections. Dukes v. Kirkwood, La. App. 1st Cir., 1958, 105 So. 2d 318; Brown & Williamson Tobacco Corp. v. Baumgardner, La.App. 1st Cir., 1957, 92 So. 2d 107; King v. Willis, La.App. Orleans, 1954, 75 So. 2d 37; Dudley v. Surles, La. App. 2d Cir., 1942, 11 So. 2d 70.
The charge that Crane's failure to sound his horn indicative of his intention to effect a passing movement constituted a proximate cause of the accident is likewise without merit. The charge relates not to Crane's failure to sound his horn but to his failure to timely give such a warning signal, as both Crane and London testified that plaintiff's horn was blown. The failure as thus contended is, however, a matter of no importance, as, under the facts and circumstances of this case, an absolute failure to sound the horn could not be construed as negligence on the part of the driver of the following vehicle. The statute (LSA-R.S. 32:233, subd. B), directing that the driver of an overtaking vehicle give audible warning of his intention before attempting to pass a vehicle proceeding in the same direction, does not require that the horn of every vehicle be sounded whenever their drivers intend to pass a vehicle which is already sufficiently far to the right of the highway to permit the passing. The purpose of sounding the horn is not to warn the forward vehicle not to turn left, but is to give the overtaking motorist the right to require the vehicle ahead to swerve to the right to afford a sufficient path in which the overtaking vehicle may pass. Babineaux v. Sims, La. App. 1st Cir., 1959, 111 So. 2d 848; Service Fire Ins. Co. of N. Y. v. Indiana Lumbermans Mut. Ins. Co., La.App. Orleans, 1959, 111 So. 2d 358; Benenate v. Brooks, La.App. Orleans, 1957, 95 So. 2d 757; Sanders v. Hisaw, La.App. 1st Cir., 1957, 94 So. 2d 486 (writs denied); Martin v. Globe Indemnity Co., La.App. Orleans, 1953, 64 So. 2d 257; De La Vergne v. Employers Liability Assur. Corporation, La.App. 1st Cir., 1941, 4 So. 2d 66 (writs denied); Cantrell v. H. G. Hill Stores, La.App. Orleans, 1940, 193 So. 389.
*635 The evidence establishes, as we have heretofore pointed out, that, at the time plaintiff started to pass defendant's truck, the latter was in its right-hand lane. Thus, under the authorities cited, it was not necessary for plaintiff to sound his horn or to forewarn defendant of his intention to pass, since plaintiff was in a lane to the left of defendant's traffic lane and the passage did not require that defendant move to the right in order to afford a clear path for the passing movement of plaintiff's vehicle.
A sudden turn of a vehicle, without adequate warning of the driver's intention, from its proper lane of travel across the path of a vehicle in a passing lane has been many times held to constitute the proximate cause of an accident resulting from such a maneuver, notwithstanding the failure of the passing motorist to sound his horn. Sanders v. Hisaw, supra; Martin v. Globe Indemnity Co., supra; Sonnier v. Broussard, La.App. 1st Cir., 1950, 44 So. 2d 339; Great American Ins. Co. v. New Amsterdam Casualty Co., La.App. 1st Cir., 1943, 15 So. 2d 241; Cantrell v. H. G. Hill Stores, supra.
Defendants, nevertheless, rely upon the principle that a following motorist who makes a sharp passing maneuver without proper lookout or with disregard of possible danger ahead of him is guilty of negligence. Reliance for support of this contention is placed in the following cases: Faulkner v. Ryder Tank Lines, Inc., La. App. 2d Cir., 1961, 135 So. 2d 494 (writs denied); McCallum v. Adkerson, La.App. 2d Cir., 1961, 126 So. 2d 835; Thomas v. Barnett, La.App. 2d Cir., 1959, 116 So. 2d 330 (writs granted); 240 La. 363, 123 So. 2d 87; Paggett v. Travelers Indemnity Company, La.App. 2d Cir., 1957, 99 So. 2d 173.
In Mitchell v. National Surety Corporation, La.App. 2d Cir., 1963, 149 So. 2d 213, 217, we had occasion to point up the distinguishing facts and circumstances in cases such as are contained in the instant case from the cases cited. For instance, we there stated:
"Since counsel relies strongly upon the authority of Thomas v. Barnett and McCallum v. Adkerson, we point out that in Thomas v. Barnett there was a sharp passing maneuver and this court and the Supreme Court concluded that the overtaking passing motorist, Thomas, was guilty of contributory negligence in not assuring himself that he could safely pass Barnett's truck. A close examination of the facts of this case show that the court held Thomas should have recognized that plainly visible gravel loading operations were being conducted on the left side of the highway, that Barnett would be preparing to turn left in order to reach that destination, and that Thomas was wrong in anticipating Barnett would turn right instead of left. The case, therefore, is readily distinguishable from the one at bar. McCallum v. Adkerson, supra, likewise must be considered inapposite, for in that case McCallum was intent upon passing a number of vehicles, and this court held he should have surmised from the slowing down of the several vehicles ahead that it was the intention of the driver of the lead vehicle to make a left turn."
Neither does the record substantiate defendants' contention that plaintiff driver failed to maintain a proper lookout or to keep his vehicle under control. We are impressed that plaintiff was most vigilant and alert.
We conclude that the defendants have not, by a preponderance of the evidence, established plaintiff Crane's contributory negligence; and, therefore, that the sole, proximate cause of the accident and the damages and injuries resulting therefrom was the failure of defendant London to keep and maintain a proper lookout or to ascertain, before attempting the left turn, that such movement could be made with reasonable safety.
*636 Finally, for consideration are questions relating to the quantum of the awards for the damages and injuries sustained by the plaintiffs. The findings of the trial court as to Mrs. Crane's injuries were contained in the following excerpt from its written opinion:
"Immediately after the impact, Mrs. Crane stepped out of the automobile on the right side and discovered that her left ankle was injured to the extent she could not walk. She and her husband were taken to the Curtis Clinic in Mansfield, where she was given sedatives. Later that day she went to Dallas, Texas. The next day she was seen by Dr. Robert W. Grace, who hospitalized her for eight days. He placed her foot and ankle in a cast, which she wore for about six weeks. After the cast was removed, Mrs. Crane was referred to the Baylor University Medical Center for physical therapy, which treatment was continued, daily at first, and less frequently later until about January 14, 1960. At that time, Dr. Grace, who had been seeing Mrs. Crane from time to time found what he thought was some inflammatory reacton in her ankle; and he concluded she should see an orthopedic surgeon. He referred her to Dr. B. C. Halley, Jr., an orthopedic surgeon, who first saw Mrs. Crane January 22, 1960. Dr. Halley found an osteochondral fracture, which consisted of a fragment of a bone underlying the medical aspect in the left ankle. He first tried treatment with cortisone and other medication; but when his treatment failed to relieve the condition, he resorted to surgery, May 6, 1960. Mrs. Crane was hospitalized thirteen days as a result of the surgery. The surgery resulted in some improvement of Mrs. Crane's condition, but she is still unable to do any prolonged walking or standing without pain, soreness and swelling of her ankle. There is some shortening of the heel cord, and limitation of motion in her ankle. She cannot wear flat heels, or walk barefooted. Dr. Halley testified that Mrs. Crane's disability is permanent, in his opinion; and that the joint, the situs of the surgery, is subject to degenerative, and arthritic changes. In addition to the injury to left ankle, Mrs. Crane complained of injuries to her left hip, both knees, and right ankle, but these injuries seem to have been of minor consequences, and only temporary in nature."
We are of the opinion that the award is insufficient, considering Mrs. Crane's permanent disability and the pain and suffering that she will, in all probability, be compelled to experience. She was 40 years of age at the time of the trial and had a life expectancy of 28.18 years. There is a permanent disability, despite surgery. The injuries have subjected her to degenerative and arthritic changes, the pain and suffering from which will, in all probability, increase in intensity with the passage of time. An award of $7,500.00, we think, is reasonable.
With reference to Crane's injuries, we may point out that the steering wheel struck him in his left side and ribs, and on the head and mouth. Several teeth were knocked out and a severe laceration was sustained to his lower lip, extending completely through the lip. On reaching a clinic in Mansfield, Crane's lip was sutured, both inside and outside. His teeth were so loosened that the doctor removed them. The day following the accident, Crane was seen at his home in Dallas by his family physician, whose examination revealed lacerations and swelling of the lower lip, two broken teeth, and pain over the left chest wall. It was thought that Crane had sustained a fractured rib. The roots of the broken teeth were later removed and bridgework inserted. Checkups by the family physician followed on four occasions, extending to July 7, 1959. About a month following the accident, Crane began to experience *637 pain in his back while driving, which he does extensively in his work. On August 1, 1959, after examination, the family physician was of the opinion that Crane had sustained an acute sacroligamentous strain; whereupon he was referred to an orthopedic surgeon who felt that Crane had most likely sustained a muscular strain or an aggravation of a strain. He was placed on an exercise program. Nevertheless, at the time of trial, he described his condition as painful, particularly from time to time in driving.
We think an award of $2,500.00 is reasonable for the physical pain, suffering, and disability experienced by Crane, and for the loss of his teeth.
For medical and dental treatment, Crane incurred an expense of $525.25. Medical and hospital expenses incurred on behalf of his wife totaled $1,506.97. Travel expenses in the sum of $157.40 were incurred in making various visits for medical attention and treatment. The expense of the necessary repairs to the car owned by Thomas Motor Freight, Inc., aggregated the sum of $527.34, $100.00 of which was paid by it and $427.34 by its insurer.
Therefore, for the reasons assigned, it is Ordered, Adjudged, and Decreed that the judgment in favor of Mrs. Mary Louise Crane be amended by increasing the award to $7,500.00; and
It is further Ordered, Adjudged, and Decreed that the judgment appealed, so far as it rejects the demands of the other plaintiffs, be, and the same is hereby, annulled, avoided, reversed, and set aside; and
It is now Ordered, Adjudged, and Decreed there be judgment in favor of the plaintiff, Frank Crane, for the full sum of $4,532.22; in favor of the plaintiff, Thomas Motor Freight, Inc., for the full sum of $100.00; and in favor of plaintiff, The Travelers Indemnity Company, for the full sum of $427.34, against the defendants, Clarence London, S. H. Bates, Jr., and Canal Insurance Company, in solido, with 5% per annum interest on each of said amounts from judicial demand until paid, and for all costs including the cost of this appeal.
Amended and affirmed in part, and reversed and rendered in part | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619270/ | 792 S.W.2d 740 (1990)
James Patrick SMITH and Smith & Conner, P.C., Appellants,
v.
Frances McKINNEY, Appellee.
No. C14-89-00696-CV.
Court of Appeals of Texas, Houston (14th Dist.).
May 10, 1990.
Rehearing Denied July 5, 1990.
*741 Henry P. Giessel, Alice M. Giessel, Houston, for appellants.
David A. Gibson, Candace Sturdivant, Houston, for appellee.
Before PAUL PRESSLER, CANNON and ELLIS, JJ.
OPINION
ELLIS, Justice.
This is an appeal from a legal malpractice action instituted by appellee, Frances McKinney, against James Patrick Smith and Smith & Conner, P.C. (Smith) in which negligence and proximate causation were stipulated. The jury awarded damages in the amount of $123,468 and the trial court entered judgment in favor of Mrs. McKinney. We reverse and render.
In their first point of error, appellants assert the trial court erred in overruling defendants' motion for directed verdict, motion of judgment and objection to plaintiff's tendered form of judgment, based upon the bar of two-year statute of limitations. In their second point of error, appellants assert the trial court erred in overruling defendants' motion for judgment based upon the bar of two-year statute of limitations because plaintiff had no pleadings, proof or findings regarding the discovery rule. We consolidate both points of error in our treatment of this case.
This appeal arises from the legal representation by James Patrick Smith, partner in the law firm Smith & Conner, P.C. Smith represented Frances McKinney in a divorce action heard on November 23, 1981. On November 25, 1981, Smith advised Mrs. McKinney to sign an Exxon release form which used the word "annuity" rather than "retirement." Smith did not realize that the word "annuity" was the functional equivalent of the word "retirement." As a direct result of Smith's advice, Mrs. McKinney signed away her community interest in Mr. McKinney's retirement benefits at Exxon. Smith subsequently drafted the divorce decree which neglected to address Mrs. McKinney's community interest in Mr. McKinney's Exxon retirement benefits, but which awarded Mr. McKinney one-half of the retirement benefits. On December 18, 1981, the final judgment in the divorce action was signed. In April of 1985, Mrs. McKinney learned of the loss of her community interest in the Exxon retirement benefits and contacted Smith on April 11, 1985. The present action for legal malpractice was filed on October 29, 1986. On September 23, 1988, Smith filed his first amended original answer, asserting the two year statute of limitations as a plea in bar. On March 15, 1989, the cause came on for trial. Smith admitted at trial that he was negligent in preparing the divorce decree and in advising Mrs. McKinney to sign the release and that each of these acts was a proximate cause of damages.
In Willis v. Maverick, 760 S.W.2d 642 (Tex.1988) the Texas Supreme Court reviewed a malpractice suit by a former wife against the attorney who represented her in her divorce action. The Court held in pertinent part that:
... the two-year statute of limiations governs the present case. TEX.CIV.PRAC. & REM.CODE ANN. § 16.003 (Vernon 1986). "A cause of action for legal malpractice is in the nature of a tort and is thus governed by the two-year statute of limitation." 760 S.W.2d at 644.
The Court further adopted the discovery rule as to legal malpractice actions:
Accordingly, we hold that the statute of limitations for legal malpractice actions does not begin to run until the claimant discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing the elements of his cause of action. 760 S.W.2d at 644.
The pleading and proof requirements of the discovery rule are prescribed in Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex.1988). The Texas Supreme Court held in relevant part:
*742 We hold that the discovery rule is a plea in confession and avoidance. A plea in confession and avoidance is one which avows and confesses the truth in the averments of fact in the petition, either expressly or by implication, but then proceeds to allege new matter which tends to deprive the facts admitted of their ordinary legal effect, or to obviate, neutralize, or avoid them.... This most closely describes the function of the discovery rule, which asserts that while the statute of limitations may appear to have run, giving rise to that appearance should not control. 769 S.W.2d at 517, 518
A party seeking to avail itself of the discovery rule must therefore plead the rule, either in its original petition or in an amended or supplemented petition in response to defendant's assertion of the defense as a matter in avoidance. TEX.R. CIV.P. 94; ... A defendant who has established that the suit is barred cannot be expected to anticipate the plaintiff's defenses to that bar. A matter in avoidance of the statute of limitations that is not raised affirmatively in the pleadings will, therefore, be deemed waived. TEX. R.CIV.P. 94; ... The party seeking to benefit from the discovery rule must also bear the burden of proving and securing favorable findings thereon ... 769 S.W.2d at 518 (Citations omitted).
Mrs. McKinney's pleadings alleged that her legal injuries were sustained in regard to the Exxon assignment of benefits form (signed November 23, 1981) and also to the Final Decree of Divorce (signed December 18, 1981.) It is apparent that this lawsuit was filed five years after the legal damage to Mrs. McKinney's interest occurred.
Under the "legal injury" rule, a cause of action accrues when the tort is completed, that is, the act and damage suffered. Black v. Wills, 758 S.W.2d 809 (Tex.App. Dallas 1988, no writ) citing McClung v. Johnson, 620 S.W.2d 644, 646 (Tex.Civ. App.Dallas 1981, writ ref'd n.r.e). Black was a legal malpractice action instituted two years after the claimant's workers' compensation action was dismissed for want of prosecution. Summary judgment for defendant, based upon limitations, was affirmed. Significantly, the claimant had failed timely to plead or prove discovery facts. The Dallas Court of Appeals found that the date of legal injury was the date of the dismissal of the compensation suit more than two years prior to the filing of the legal malpractice suit. Black, 758 S.W.2d at 816.
Like the defendant in Black, Smith pled in bar the affirmative defense of the two-year statute of limitations. Like the claimant in Black, Mrs. McKinney did not plead the discovery rule. Nor did she obtain findings on discovery in response to Smith's statute of limitations bar as mandated by the Supreme Court in Woods. 769 S.W.2d at 517, 518. Thus Mrs. McKinney sustained her legal injury on December 18, 1981 when the divorce decree was signed, depriving her of any community interest in the Exxon retirement benefits.
There was testimony as to when Mrs. McKinney learned of Smith's mishandling of her affairs; there was no evidence adduced as to when Mrs. McKinney should have discovered the negligence of Smith. In the absence of the requisite pleading, proof or finding, Mrs. McKinney waived the discovery rule and Smith's limitation's plea prevails as a matter of law. We sustain appellants' points of error one and two. Finding appellants' first two points of error dispositive of this appeal, we do not reach appellants' remaining points of error.
Accordingly, the judgment of the trial court is reversed and we render judgment that appellee take nothing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619266/ | 152 So. 2d 662 (1963)
Frank Lee RUDOLPH
v.
STATE of Alabama.
6 Div. 808.
Supreme Court of Alabama.
January 17, 1963.
Rehearing Denied May 9, 1963.
*663 Morel Montgomery and Fred Blanton, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.
LAWSON, Justice.
The appeal is from a conviction for rape, with the infliction of the death penalty.
The date of the alleged crime was fixed at August 1, 1961. Appellant, Frank Lee Rudolph, was indicted by a grand jury of Jefferson County on September 1, 1961, and was arraigned on October 20, 1961. Upon arraignment, Rudolph pleaded not guilty. As shown, on his trial the jury found him guilty and imposed the death penalty. Judgment and sentence were in accord with the verdict. Motion for new trial was overruled.
Rudolph was represented at arraignment, throughout his trial and on motion for new trial by an attorney of his own selection.
After the motion for new trial was overruled, the trial court determined that Rudolph was an indigent appellant within the meaning of the automatic appeal statute and thereupon appointed the attorney who has appeared for him in this court to prepare and prosecute this appeal under the automatic appeal statute. Act 249, approved *664 June 24, 1943, General Acts 1943, p. 217; 1955 Cum. Pocket Parts, Vol. IV, Title 15, §§ 382(1)-382(13), Code 1940.
The prosecutrix is a young white woman who lived with her husband and their two young sons in a basement apartment in an apartment house situated at 1771 North 17th Street in the City of Birmingham.
Appellant is a young Negro man, who was about twenty years of age at the time of the alleged crime. He lived with his mother and brother in a Negro section about four blocks from the apartment where the prosecutrix lived.
We see no necessity for making a detailed statement of the evidence. For the purpose of this appeal, we think the following summary will suffice.
The prosecutrix testified that at about 1:30 A.M. on the morning of August 1, 1961, a Negro man entered the bedroom where she and her two small sons were asleep. Her husband was away at work. The man told her not to scream and to be quiet. He got in the bed with prosecutrix and had sexual intercourse with her. During the course of the attack he threatened to kill prosecutrix and told her two or three times that she could look at him but that she "wouldn't live to tell it." An electric light which had been left burning in the bathroom enabled the prosecutrix to clearly see her attacker.
After she was released by her assailant she screamed for help and attempted to leave the apartment by way of the kitchen door at about the same time that her assailant was attempting to leave through a window in the kitchen. A tussle ensued and prosecutrix was bruised and cut about the face.
Her screams following the attack were heard by her mother-in-law and sister-in-law, who lived in the same apartment building. They came to her assistance and the police were notified.
The appellant was arrested at the home of a friend within a short time after the police were notified.
On August 2, 1961, the prosecutrix picked appellant from a police lineup of five or six Negro men.
At the trial the prosecutrix positively identified appellant as the man who attacked her.
Aside from the positive identification of appellant by the prosecutrix, the State introduced in evidence a confession made by appellant.
On the trial Rudolph, the appellant, denied his guilt and repudiated the alleged confession, contending that it was extorted from him by coercive methods. He sought to establish an alibi but his statement as to his whereabouts at the time the offense is alleged to have been committed stands uncorroborated.
It is urged that the trial court erred to a reversal in permitting the State to make proof of the confession on the ground that it was not shown to have been voluntary.
The rule in this state as to the admissibility of confessions in evidence has been stated many times by this court. Prima facie, a confession is not voluntary and there must be evidence addressed to the trial judge rebutting that presumption and showing prima facie that the confession was voluntarily made unless, of course, the circumstances attending the confession affirmatively disclose its character. Johnson v. State, 242 Ala. 278, 5 So. 2d 632, cert. denied, 316 U.S. 693, 62 S. Ct. 1299, 86 L. Ed. 1763; Phillips v. State, 248 Ala. 510, 28 So. 2d 542; Taylor v. State, 249 Ala. 130, 30 So. 2d 256.
The State introduced evidence tending to show that no threat was ever made against appellant; that he was not physically mistreated; that no reward was offered or held out to him to get him to. *665 confess; that no inducement of any kind was made to him.
We think the predicate as laid by the State was sufficient to show prima facie that the confession was voluntarily made, there being nothing in the record to indicate that under the circumstances prevailing at the time the confession was made, when considered with the age, character and situation of appellant, that he was deprived of his free choice to admit, to deny or to refuse to answer. Phillips v. State, supra, and cases cited; Arrington v. State, 253 Ala. 178, 43 So. 2d 644; Myhand v. State, 259 Ala. 415, 66 So. 2d 544.
Appellant was approximately twenty years of age at the time of the commission of the crime. There is nothing to indicate that he did not have normal intelligence. The extent of his education is not shown.
There was no evidence of protracted questioning leading up to the making of the confession, nor the use of any highpowered lights or similar devices as are sometimes said to be found in investigating offices. Appellant was not required to disrobe. It does not appear that any request for food, drink or cigarettes was denied. He was not prevented from sleeping and was not denied the right to see family, friends or counsel.
The questioning of a suspect while in the custody of law enforcement officers is not prohibited by the common law nor by the Fourteenth Amendment to the Constitution of the United States. Nor is the confession rendered inadmissible solely by virtue of the fact that it was made while the accused was in the custody of officers. Under the decisions of this court, the fact that a confession is made while the defendant is under arrest does not in and of itself render the confession inadmissible. Nor is the confession inadmissible merely because of the fact that the officers to whom the confession was made were armed. Phillips v. State, supra; Myhand v. State, supra.
True, accused when examined as a witness gave evidence to the effect that the confession was not voluntarily made by him because he was told by the interrogating officers that unless he did confess he would be beaten again and that they would put a police dog on him.
The officers involved emphatically denied making any such statement and testified that the appellant was never mistreated. There is no evidence to support the appellant's assertion that prior to the time he made the confession the police officers permitted a vicious police dog to jump on him or that he was beaten while being taken from the place of arrest to the City Hall. The officers testified that no such events occurred. Appellant did not contend that he was in any way mistreated at the time the confession was actually made.
On the whole evidence with respect to the confession, there is nothing to show that the trial court's action in admitting the confession was manifestly wrong or that defendant's rights under the Federal Constitution were infringed. Myhand v. State, supra; Goldin v. State, 271 Ala. 678, 127 So. 2d 375; Johnson v. State, 272 Ala. 633, 133 So. 2d 53.
It was not reversible error to refuse to excuse the jury while the predicate was being laid for the introduction of the alleged confession. We think the court could have excused the jury, as was done in Myhand v. State, supra, but he was not compelled to do so.
The offense of rape is complete when the woman is made to yield through fear. Hooper v. State, 106 Ala. 41, 17 So. 679. The evidence in this case clearly supports a finding that the prosecutrix yielded to her assailant because of fear that her life was in danger. The evidence was not only sufficient to take the case to the jury on the charge of rape, but was amply sufficient to support the verdict of the jury.
*666 Photographs of the scene of the crime were properly admitted in evidence as tending to elucidate material facts under inquiry. Reedy v. State, 246 Ala. 363, 20 So. 2d 528.
Counsel for appellant asserts that the imposition of the death sentence in this case constitutes a State denial of equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution of the United States. The argument seems to be that there has been a violation of the equal protection clause of the Fourteenth Amendment because of "the consistent imposition of the death penalty, where guilt is found in rape, on the negro in the negro man-white woman situation, and a consistent imposition of a lesser sentence where a white man is the one convicted" in this state.
As far as we are advised at this time, the Supreme Court of the United States has not said that juries in the state courts must seek to strike a balance between sentences imposed on the defendants of the white and colored races irrespective of the facts of a particular case. Moreover, we do not take judicial notice of any such discrimination as counsel says exists in the imposition of sentence in rape cases and certainly no such discrimination is proven by reference to the reported cases.
In regard to counsel's statement to the effect that the case of Lewis v. State, 35 Ala. 380 (1860), appears to be the last case where the death penalty of a Negro was reversed by the Supreme Court of Alabama, we call attention to the case of Aaron v. State, 271 Ala. 70, 122 So. 2d 360, decided by this court in 1960. Aaron had been convicted of raping a white woman. Of course, there are other cases where this court has reversed the judgment where a Negro was sentenced to death. See Washington v. State, 269 Ala. 146, 112 So. 2d 179. No effort has been made to cite all such cases. The two cases last above referred to happen to have been written by the author of this opinion.
We have considered the questions so ably and earnestly argued in brief for the appellant and find no justification for a reversal of the judgment of conviction. But, mindful of our duty in cases of this character, we have examined the record for any reversible error, whether argued or not, and conclude that counsel has presented in brief all matters worthy of separate treatment here.
The judgment is affirmed.
Affirmed.
All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619251/ | 152 So. 2d 138 (1963)
James RANDOLPH
v.
Wilma Sue Clayton KESSLER.
8 Div. 95.
Supreme Court of Alabama.
April 11, 1963.
Harold O. Weeks, Scottsboro, for appellant.
H. T. Foster and John B. Tally, Scottsboro, for appellee.
LIVINGSTON, Chief Justice.
This is an appeal from a judgment for the plaintiff, in amount of $1900, for personal injuries in a case tried to a jury in the Circuit Court of Jackson County, Alabama. It was tried on a single count alleging willful or wanton misconduct of *139 the defendant and was brought under the Alabama guest statute, Title 36, Sec. 95, Code of 1940, Recompiled 1958.
The question raised by the assignments of error, and argued in brief, are: the excessiveness of the damages, admission of some allegedly hearsay testimony, the correctness of the trial judge's action in refusing to grant a new trial, and whether or not a married man over the age of 18 years must be represented by a guardian ad litem. The defendant was 18 years old and married at the time the suit was instituted.
The real issue involved, however, is whether or not the trial court committed error in its refusal to grant the affirmative charge for the defendant on the ground that there was not even a scintilla of evidence of willful or wanton misconduct. Willful misconduct is not an issue here.
In considering the question of the sufficiency of the evidence of wantonness to be submitted to the jury, this court must accept the adduced evidence most favorable to the plaintiff as true, and indulge in such reasonable inferences as the jury was free to draw from the evidence. English v. Jacobs, 263 Ala. 376, 82 So. 2d 542; Wilson & Company v. Clark, 259 Ala. 619, 67 So. 2d 898.
A careful examination of the transcript shows that the evidence most favorable to the plaintiff is substantially as follows:
The defendant was the driver of a car in which plaintiff was riding as a guest. Defendant was in the City of Scottsboro, Alabama, on the Lee Highway which passed through the city. He had already passed one or two traffic lights and was approaching a third at a speed which may have been slightly in excess of 45 miles per hour.
The appellant had knowledge, or should have had knowledge, that he was traveling upon a thoroughfare through a populous community and that traffic signals had been erected over many intersections of streets and said highway as he proceeded through the City of Scottsboro. Appellant was aware, or should have been aware, of the speed of his vehicle and should have been on the lookout not only for traffic signals ahead but for traffic proceeding along the main highway and for traffic approaching the main highway from the various intersections through which he traveled. As we view the evidence, the appellant, with conscious disregard of these known duties, proceeded into the intersection without even looking where he was going, without observing traffic on the highway he was traveling, and without observing traffic approaching at the intersection, all of this while traveling at a speed of 45 miles per hour. According to the testimony of the appellant, he stated "he was not looking at the intersection," and further, "I did not see anything until my wife said look out for the red light. I did not see the intersection until she hollered and until that time I had not seen anything that was going on at the intersection."
This court has defined wantonness as the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. English v. Jacobs, supra; Schuler v. Nelson Weaver Companies, 270 Ala. 727, 121 So. 2d 908; Duke v. Gaines, 224 Ala. 519, 140 So. 600. There are innumerable Alabama cases on wanton and willful misconduct, and we observe that, as stated in Simon v. Goodman, 244 Ala. 422, 13 So. 2d 679, each case is bound by its material facts. It would unduly lengthen this opinion and serve no useful purpose to discuss in detail the cases relied upon. There are no reported cases having substantially the same facts as the case at bar, but the law, as stated above, is clear. Without unduly burdening this opinion with a further recital of the evidence, we are to the conclusion that the evidence is sufficient to put *140 the case to the jury on the question of wantonness of the defendant, and it was not error to refuse appellant's written affirmative charge.
Assignment of error 15 reads as follows:
"15. The Court erred in admitting the testimony of the plaintiff, over the objection of the defendant, with reference to instructions given her by Dr. Kelly, who was not a witness in the case."
The record disclosed that Dr. Peet had already testified, without objection, and established the same facts which are sought to be established here. If error intervened, it was without prejudice. 2A Ala.Dig., Appeal and Error.
Assignment of error 16 reads:
"16. The Court erred in admitting the testimony of M. D. McDonald, over the objection of the defendant, as to what might have happened had the back bumper of the Bradford car not caught the front bumper of the Ford automobile." (citing Transcript p. 35)
It is not clear as to what testimony the appellant refers to in this assignment. If it was to the first statement by Mr. McDonald, appellant's objection was sustained. If it was to the second statement made by Mr. McDonald, no objection was made to the question and no move to exclude the answer was made by the appellant. This assignment of error is without merit.
Assignment of error 17 is as follows:
"17. The Court erred in failing to appoint a guardian ad litem for the defendant, a minor, eighteen years of age, who was not represented by a guardian or guardian ad litem on the trial of said cause of action."
There is no merit in this contention. Appellant apparently overlooked Title 34, Sec. 76(1), Code of 1940, Recompiled 1958, Pocket Part. This statute relieves the disabilities of minority of all married men over the age of 18 years, and gives such men the same legal rights and abilities as those over the age of 21.
Assignments of error 18, 19 and 20 are as follows:
"18. The verdict of the jury is contrary to the law and evidence in the case.
"19. The verdict of the jury is contrary to the great preponderance of the evidence in the case.
"20. The verdict of the jury is contrary to the law as declared by the Court in its oral charge."
We have effectively answered these three assignments of error in holding that the appellant was not entitled to the general charge under the evidence and law of the case. Moreover, we have repeatedly held that such assignments of error are not sufficient. Roan v. Smith, 272 Ala. 538, 133 So. 2d 224; King v. Jackson, 264 Ala. 339, 87 So. 2d 623. In the case of Mulkin v. McDonough, 266 Ala. 281, 95 So. 2d 921, it was said, "Only adverse rulings of the trial court are subject to an assignment of error and reviewable on appeal."
Assignment of error 21 raises the question of the excessiveness of the verdict. We are not impressed that the verdict for $1900 in this case is excessive. Furthermore, punitive damages and wantonness can coexist with compensatory damages. McDonald v. Amason, 39 Ala. App. 492, 104 So. 2d 716.
Assignment of error 22 reads:
"22. The Court erred in overruling defendant's motion for a new trial."
We have repeatedly held that "verdicts are presumed to be correct, and no ground of new trial is more carefully scrutinized or more rigidly limited, than that the verdict *141 is against the evidence. * * * It is recognized by this court that when the presiding judge refuses, as here, to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. * * *" Smith v. Smith, 254 Ala. 404, 48 So. 2d 546; Sapp v. Frost, 266 Ala. 549, 97 So. 2d 896; Grandquest v. Williams, 273 Ala. 140, 135 So. 2d 391; 15A Ala.Dig., New Trial.
We cannot say the trial court erred in overruling the motion for a new trial.
It is axiomatic that assignments of error not argued in brief are waived.
We have answered all the assignments of error argued in brief and find no error to reverse.
Affirmed.
SIMPSON, MERRILL and HARWOOD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619256/ | 152 So. 2d 866 (1963)
J. Lee CALHOUN, Plaintiff and Appellant,
v.
STATE of Louisiana, through the DEPARTMENT OF HIGHWAYS, Defendant and Appellee.
No. 836.
Court of Appeal of Louisiana, Third Circuit.
March 13, 1963.
On the Merits May 14, 1963.
Rehearing Denied June 12, 1963.
*867 Love & Hodges, by Lloyd F. Love, Ferriday, for plaintiff-appellant.
D. Ross Banister, Glenn S. Darsey and Chester E. Martin, by Chester E. Martin, Baton Rouge, for defendant-appellee.
Before SAVOY, FRUGE and HOOD, JJ.
HOOD, Judge.
This matter is before us at this time solely on a motion to dismiss the appeal, which motion was filed by the defendant-appellee, State of Louisiana, through the Department of Highways.
In his original and two supplemental and amended petitions, plaintiff Calhoun alleges, in substance, that in a prior suit the defendant had taken and expropriated a servitude or right-of-way for highway purposes over and across plaintiff's land, but that the construction of a road on and along that right-of-way would cause him to suffer damages and irreparable loss. He demands (1) that a temporary restraining order issue restraining defendant from proceeding to construct a highway along said right-of-way; (2) that a rule issue directing defendant to show cause why a preliminary injunction to the same effect should not be issued; (3) that judgment be rendered ordering the defendant to move the location of its servitude or right-of-way to a new route or location which was described in the pleadings; and (4) that judgment be rendered directing defendant to complete a contract previously entered into relating to the construction of a highway on plaintiff's property.
Two temporary restraining orders were issued at different times in response to these pleadings, both of which orders have expired by law and under the express provisions of the orders themselves. No hearing was held on the rule to show cause why a preliminary injunction should not be granted, and no order or decree granting a preliminary injunction has ever been issued. The defendant, in response to the original and both amended petitions, filed an exception of no right of action, alleging and contending that plaintiff has no right to substitute *868 a different servitude for the one which had been formally expropriated by defendant in a prior suit. After a hearing, judgment was rendered by the trial court on November 27, 1962, sustaining that exception, and a formal decree sustaining the exception and dismissing the suit at plaintiff's prejudice was read and signed on December 3, 1962. Plaintiff's motion for a new trial was denied on December 7, 1962, and on the same day plaintiff moved for and was granted a devolutive and suspensive appeal, returnable on March 7, 1963, the appeal bond being set at $500.00. The appeal bond was furnished on December 19, 1962, which was sixteen days after the date on which the judgment appealed from had been rendered.
Shortly after the record was lodged in this Court, the defendant-appellee filed a motion to dismiss the appeal on the ground that the judgment appealed from was one relating to a preliminary injunction, and that the appeal was not perfected within fifteen days after the judgment was rendered, as required by C.C.P. Article 3612. The matter is before us now on that motion.
The third paragraph of Article 3612 of the Louisiana Code of Civil Procedure provides, in part, that:
"An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment * * *."
One of the sources of C.C.P. Article 3612 was Act 29 of 1924, which was later included in the 1950 Revised Statutes as R.S. 13:4070 (repealed by Act 32 of 1960). The former, or source, statute provided that "where upon a hearing, a preliminary writ of injunction shall have been granted, continued, refused or dissolved by an interlocutory order or decree," a devolutive appeal may be taken from such order or decree, but that any such appeal "must be taken and bond furnished within ten days from entry of such order or decree."
Prior to the effective date of the Louisiana Code of Civil Procedure the jurisprudence was established to the effect that the limitation of ten days within which to appeal, as provided in Act 29 of 1924 (LSA-R.S. 13:4070), referred only to an interlocutory order or decree relating to a preliminary injunction, and that it did not apply to an appeal from a final judgment disposing of plaintiff's right to an injunction, by deciding the case on its merits. See Brock v. Stassi, 189 La. 88, 179 So. 44; Donaldson's Heirs v. City of New Orleans, 166 La. 1059, 118 So. 134; Oliver v. Shreveport Municipal Fire and Police Civil Service Board, La.App. 2 Cir., 88 So. 2d 405; State ex rel. Coker v. Hamlin, La.App.Orleans, 40 So. 2d 687; Tuggle v. Bolin, La.App. 2 Cir., 65 So. 2d 811; Everett v. Hue & Aarnes, 173 La. 420, 137 So. 201; and Baton Rouge Production Credit Ass'n v. Newsom, La. App. 1 Cir., 191 So. 154.
Comment (b) under Article 3612 of the Code of Civil Procedure indicates that no change was intended by paragraph three of that Article, except that the delay was extended from ten to fifteen days. It seems to us, therefore, that the rule established by the above-cited jurisprudence is still applicable, and that the delay of fifteen days for taking an appeal, as provided in the third paragraph of Article 3612 of the Code of Civil Procedure, does not apply to a final judgment which disposes of the case on its merits.
In the instant suit the judgment appealed from is a final judgment, which disposes not only of plaintiff's demand for a preliminary injunction, but also of his right to obtain a permanent injunction, his demand for judgment ordering defendant to relocate its servitude or right-of-way, and his demand that defendant be directed to complete its contract for the construction of a highway. It is not merely an interlocutory decree "relating to a preliminary injunction," but it is a final decree disposing of the case on its merits. In our opinion, therefore, the fifteen-day delay for taking an *869 appeal from an order or decree relating to a preliminary injunction, as provided in Article 3612 of the Code of Civil Procedure, is not applicable here. Instead, since the judgment appealed from is a final judgment disposing of the case on its merits, we conclude that the delays for appealing are those provided in Articles 2087 and 2123 of the Code of Civil Procedure, relating to devolutive and suspensive appeals generally.
The appeal in this case was perfected within the delays allowed by either or both of the last-cited Articles of the Code of Civil Procedure, and accordingly, the motion to dismiss the appeal must be denied. No issue is raised in this motion as to whether the appeal was perfected as a suspensive or as a devolutive appeal, so it is not necessary for us to consider that question.
For the reasons herein assigned, therefore, the motion to dismiss the appeal filed by defendant-appellee is denied.
Motion to dismiss appeal denied.
On the Merits
Plaintiff Calhoun has appealed from a judgment of the trial court dismissing this suit on an exception of no cause of action filed by defendant.
The principal issue presented on this appeal is whether plaintiff, assuming all facts alleged by him to be true, is entitled to judgment changing the location of a previously expropriated highway right-of-way over and across his property, and ordering the Highway Department to construct such highway along a new and different route which would be more convenient to plaintiff and yet would afford the same facility at no additional cost to defendant.
According to the facts alleged in the pleadings, plaintiff's property fronts on Black River Lake. Prior to and at the time of the filing of the above-mentioned expropriation proceeding a public road crossed plaintiff's property, running along and relatively close to the edge of the lake. The defendant proposes to construct a new, hard-surfaced, wider highway substantially on and along the old existing roadbed, and by formal expropriation proceedings it has obtained from plaintiff all of the additional rights-of-way or servitudes affecting his land which it needs for that purpose. In November, 1961, after obtaining these servitudes, defendant entered into a contract for the construction of such a highway along this route. Plaintiff, however, in September, 1962, instituted this suit demanding that the new highway across his property be relocated and constructed along a different route, further from the lake, because he alleges that the property which has been taken "is extremely valuable for littoral purposes," and the land further from the lakeshore is less valuable. Counsel states in his brief that plaintiff wants the route changed "in order to make room for him to create a lake front subdivision."
The right-of-way for the proposed highway across plaintiff's property was expropriated by defendant under the provisions of Act 107 of 1954 (R.S. 48:441-460), which permits the "quick taking" of private property for highway purposes without the necessity of the prior adjudication of the question of the necessity for the taking. No question is raised in this suit as to the regularity of that expropriation proceeding or as to the validity of the order of expropriation by which defendant acquired the servitude over and across plaintiff's property.
The defendant in the instant suit contends that the Highway Department has the exclusive right, under the provisions of R. S. 48:441-460, to determine the question of the necessity for the taking and to specify the location or route of the proposed highway, and that its determination of those questions is not subject to judicial review. It concedes that the court may divest the Highway Department of the title it acquired by the expropriation proceeding if the court determines that the property was not taken for a public use. Defendant correctly *870 points out, however, that there are no allegations in any of the pleadings filed in the suit to the effect that the property was not taken for a public use, and thus no issue of that kind is raised here. It is argued that under the facts alleged by plaintiff, and particularly since there is no contention that the property was not taken for a public use, defendant cannot be divested of the title which it acquired by the expropriation proceedings and thus it cannot be compelled to change the location of the proposed highway across plaintiff's property.
R.S. 48:460, which relates to highway expropriation proceedings of this nature, provides:
"The plaintiff shall not be divested by court order of any title acquired under these provisions except where such court finds that the property was not taken for a public use. In the event of such findings, the court shall enter such judgment as may be necessary to compensate the defendant for the period during which the property was in the possession of the plaintiff and to recover for the plaintiff any award paid." (Emphasis added).
Our Supreme Court considered the abovequoted section of the Revised Statutes in State, Through Department of Highways v. Guidry, 240 La. 516, 124 So. 2d 531, where the fee title to a portion of defendant's property was expropriated under the provisions of LSA-R.S. 48:441-460. Defendant moved to vacate the order of expropriation on the ground that it was not necessary for plaintiff to take the fee title to the property, but that a servitude over such property was all that was needed. The Supreme Court held that the motion of defendant was properly denied by the district court because the question of the necessity for the taking was not subject to judicial review. "It is within the discretion of the Highway Department," said the Court, "to determine whether full ownership of the expropriated land or merely a servitude is necessary." The Court also held that when the Highway Department expropriates property under the provisions of the cited sections of the Revised Statutes, "there are only two questions which the courts may determine: (1) the adequacy of the compensation, and (2) whether the property was taken for a public purpose."
In State Through Department of Highways v. Waterbury, La.App. 3 Cir., 125 So. 2d 503, the defendant landowner by motions filed in the expropriation proceeding sought to reduce the amount of land taken, and as a basis for that motion the defendant offered a new plan of constructing a proposed highway intersection, prepared by an engineer hired by the landowner, under which plan a less amount of defendant's property was required. The trial court rendered judgment in favor of the defendant approving the new plan and decreeing that the original order of expropriation be amended by reducing the amount of property which had been taken from defendant. In view of the decision in the Guidry case, we concluded that the district judge was without authority to reduce the amount of property taken by the Highway Department, and accordingly, we reversed the judgment of the trial court.
We think the principle applied in the Waterbury case is applicable here, although we recognize that in that instance the landowner was seeking to reduce the amount of land taken rather than to relocate the right-of-way, as in this case. We cannot agree with plaintiff that the Waterbury case is inapplicable because the issue there was presented in the expropriation suit, while here the issue is being presented in a separate proceeding after the expropriation has been completed.
Although the owner of expropriated property is entitled to contest the question of the necessity for the taking under the general expropriation laws of this State, we think the jurisprudence of this State is settled to the effect that the owner has no such right in highway expropriation proceedings conducted under the provisions of *871 Act 107 of 1954 (R.S. 48:441-460). With the enactment of the 1954 statute, we think the Legislature has vested in the Highway Department the power to determine the necessity for expropriating property for highway purposes, that this includes the right to specify the route or location of such highway, and that the determination of these questions by the Department is not subject to judicial review. When the Highway Department expropriates property under the provisions of the 1954 statute, the courts may determine the adequacy of the compensation and whether the property was taken for a public purpose, but they have no authority to divest the Department of the title it has acquired under those proceedings on the ground that the taking was not necessary or expedient. It follows, we think, that the courts have no authority to order that the route or location of the servitude be changed, as demanded by plaintiff in this proceeding, because such a determination would involve a finding that the original route selected by the Department is not necessary.
Plaintiff, while apparently conceding that the expropriation proceedings were regular and that the property was taken for a public use, further contends that the servitude which defendant now owns, having been acquired by those proceedings, is governed by the substantive laws of Louisiana, and that under the provisions of either Article 703 or Article 777 of the Revised Civil Code plaintiff is entitled to have the location of the servitude changed.
A study of the provisions of these articles of the Civil Code convinces us that they are intended to relate only to servitudes which one estate owes to another estate, and that neither of these articles is applicable to a servitude expropriated by the State for the purpose of constructing a public highway. But even if the authors of the Code had intended that the landowner whose property is traversed by a public road should have the right to require the State to move the highway to a more convenient location, then it seems to us that the Legislature, by adopting Act 107 of 1954 (R.S. 48:441-460), clearly superseded the provisions of both of said articles insofar as they might relate to rights-of-way for highway purposes acquired by the State under the provisions of that act. We find no merit, therefore, in plaintiff's argument that under the provisions of these articles of the Civil Code he has the right to require the Highway Department to change the highway right-of-way from its present location to one which is more convenient to him. See also R.C.C. Article 658.
Plaintiff contends alternatively that the defendant Department of Highways agreed to "revise the alignment of that portion of the right of way * * * as requested herein," and that plaintiff is entitled to judgment ordering and directing defendant to realign the highway pursuant to that agreement. The evidence shows that on July 30, 1962, plaintiff entered into a written agreement with Paul E. Lirette, Right of Way Engineer for defendant Department of Highways, which recites, among other things, that the Department and Calhoun had "verbally agreed to finally conclude by joint petition and judgment that certain expropriation suit * * * whereby the Department agrees to revise the alignment of a portion of" the highway which defendant proposes to construct across plaintiff's land. The agreement then stipulates that the parties agree to "conclude the expropriation suit * * * upon the terms and conditions theretofore mutually agreed upon." Although this document recites that the parties had verbally agreed to conclude the expropriation suit by proper pleadings, a part of which verbal agreement was to revise the alignment of this highway route, the contract does not set out the manner in which the highway route was to be changed or realigned and in such contract the Highway Department does not specifically obligate itself to make any such changes. The pleadings do not show whether a joint petition was ever *872 filed, pursuant to the verbal agreement, but we assume that it was not because obviously there has been no judgment rendered realigning the route for the proposed highway. Under these circumstances, we feel that the agreement entered into between plaintiff and Mr. Lirette on July 30, 1962, cannot serve as the basis for the relief which plaintiff seeks here.
For the reasons herein set out, therefore, the judgment appealed from is affirmed. All costs of this appeal are assessed to plaintiff-appellant.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619279/ | 303 S.W.3d 64 (2009)
2009 Ark. 172
Justin BRYAN, d/b/a J & L Construction, Appellant,
v.
CITY OF COTTER, Arkansas; City of Gassville, Arkansas; Garver, Inc.; Grubbs, Hoskyn, Barton & Wyatt, Inc., Appellees.
No. 08-811.
Supreme Court of Arkansas.
April 2, 2009.
PER CURIAM.
Appellant Justin Bryan, doing business as J & L Construction, appeals from the circuit court's orders granting Appellee Grubbs, Hoskyn, Barton & Wyatt, Inc.'s motion to dismiss; Appellee Garver, Inc.'s motion for partial summary judgment; *65 and Appellees City of Cotter and City of Gassville's joint motion for partial summary judgment. Because Bryan has submitted a brief without a proper addendum in violation of Arkansas Supreme Court Rule 4-2(a)(8) (2008), we order rebriefing.
Rule 4-2(a)(8) provides, in pertinent part:
Following the signature and certificate of service, the appellant's brief shall contain an Addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers' Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court's jurisdiction on appeal.
Ark. Sup.Ct. R. 4-2(a)(8). The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Arkansas Supreme Court Rule 4-2(b)(3):
Whether or not the appellee has called attention to deficiencies in the appellant's abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant's counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
Ark. Sup.Ct. R. 4-2(b)(3).
Here, Bryan's brief is deficient due to the fact that his addendum lacks relevant pleadings essential to an understanding of the case. On appeal, he challenges the circuit court's orders of dismissal in favor of all four Appellees. However, his addendum fails to include any of the motions leading to the orders of dismissal, as well as the responses and replies thereto and the briefs in support thereof. Separate Appellee Grubbs, Hoskyn, Barton & Wyatt, Inc. has submitted a supplemental addendum, which includes its own motion to dismiss and brief in support and its reply to Bryan's response to the motion. Bryan's response is not included. The supplemental addendum also includes Garver, Inc.'s motion for partial summary judgment and brief in support, as well as Garver, Inc.'s reply to Bryan's response to the motion. Again, Bryan's response and supplemental response are not included. The supplemental addendum does not include any of the pleadings leading to the summary judgment granted to the cities.
This court has consistently ordered rebriefing in appeals of summary judgments where the addendum fails to include the motion for summary judgment, the opposing party's response to the motion, the moving party's reply to the response, and any briefs in support.[1] We have been *66 presented with this situation several times in recent months. See, e.g., Brock v. Townsell, supra; Neely v. McCastlain, supra; Whiteside v. Russellville Newspapers, Inc., supra; Preston v. Stoops, supra. We have required rebriefing in each instance.[2] Moreover, we have reached the same result in appeals challenging the grant of a motion to dismiss. See, e.g., Kyzar v. City of West Memphis, 359 Ark. 366, 197 S.W.3d 502 (2004) (per curiam); Branscumb v. Freeman, 357 Ark. 644, 187 S.W.3d 846 (2004) (per curiam).
We acknowledge the dissent's contention that we should decide this case on its merits as it is currently briefed, as the abstract and addendum show that the issues argued on appeal were argued below. However, we do not consider a showing of preservation to be the sole or essential purpose behind Rule 4-2(a)(8). This court has observed that it is impossible for us to make an informed decision on the merits of an appeal in the absence of the pleadings and motions on which the trial court based its decision. White County v. Cities of Judsonia, Kensett, & Pangburn, 368 Ark. at 604, 247 S.W.3d at 864 (citing Branscumb v. Freeman, 357 Ark. at 645, 187 S.W.3d at 847); Unum Life Ins. Co. of Am. v. Edwards, 361 Ark. at 151, 205 S.W.3d at 127. We have previously noted the importance of showing that the issues argued on appeal were properly preserved, but our ability to determine the merits of a case has always been paramount. We are of the opinion that an order of a circuit court cannot be reviewed for error when *67 the addendum fails to include the documents on which the order was based. In such situations, it is impossible for us to make an informed decision on the merits, "let alone determine whether [the] arguments are, in fact, preserved for appeal." Conlee v. Conlee, 369 Ark. 178, 179, 251 S.W.3d 306, 307 (2007) (per curiam).
Our position on this issue is not new. See, e.g., CitiFinancial Retail Servs. Div. of CitiCorp Trust Bank, FSB v. Weiss, 371 Ark. 421, 266 S.W.3d 740 (2007) (per curiam) (rebriefing ordered in appeal of summary judgment where addendum lacked motions for summary judgment and briefs in support); Patrick v. State, 358 Ark. 300, 188 S.W.3d 906 (2004) (per curiam) (rebriefing ordered in appeal of denial of motion to suppress where brief in support of motion to suppress not included); Moon v. Holloway, 353 Ark. 520, 110 S.W.3d 250 (2003) (per curiam) (rebriefing ordered in appeal of summary judgment where addendum lacked "summary-judgment pleadings"). We have always shown a preference for a bright-line rule with an objective standard, requiring the inclusion of pleadings and motions that led to the order being appealed, over the subjective test advocated by the dissent.
Because Bryan has failed to comply with our rules, we order him to file a substituted addendum and brief within fifteen days from the date of entry of this order. If Bryan fails to do so within the prescribed time, the orders appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted addendum and brief, Appellees shall have an opportunity to revise or supplement their briefs in the time prescribed by the clerk.
Rebriefing ordered.
CORBIN, GUNTER, and DANIELSON, JJ., concur.
BROWN, J., dissents.
DONALD L. CORBIN, Justice, concurring.
While I agree that the present case must be sent back for rebriefing, I must write separately to highlight the fact that, despite the dissent's assertions to the contrary, this court is interpreting and enforcing our rules regarding briefs in a consistent and fair manner. In a case where summary judgment was granted, the motion for summary judgment, one of the essential items for our review, is missing from the addendum.
When this court adopted the current version of Arkansas Supreme Court Rule 4-2(a)(8) requiring the appellant to include an addendum, we did so to ensure that this court had everything before it that was relevant and essential for us to decide an appeal. The dissent now narrowly focuses on the term "pleading" to support its contention that we are becoming "far too technical" in what we deem is essential to properly perform our appellate duties. Characterizing a document a "pleading" is irrelevant. Rule 4-2(a)(8) plainly states that the addendum shall include relevant "pleadings, documents, or exhibits essential to an understanding of the case and the Court's jurisdiction on appeal." While I do not agree with the dissent's exclusion of motions from the definition of pleadings, it does not matter. If a motion, response, or any other document is relevant to our understanding of the case, it must be included in the addendum, regardless of how it is characterized.
The dissent's analysis of what is essential for this court's review is faulty for two reasons. First, the dissent would have this court going to the record to determine whether something is necessary to an appeal. It is axiomatic that there is only one record, and it is impossible for seven judges to examine it. See, e.g., Hooker v. *68 Farm Plan Corp., 331 Ark. 418, 962 S.W.2d 353 (1998). Second, in all of my years as an appellate court judge, I have never thought it sufficient to have the "essence" of what was before the trial court. In order to make an informed decision about an appeal, I need the benefit of the exact things the trial court relied on in making its decision. That is what Rule 4-2(a)(8) intended, and that is what this court has consistently required.
I do not believe for one second that the attorneys in this state want us to rely on an opposing party's description, allusion to, or summary of a motion, response, or document filed with the circuit court.[1] Both sides to an appeal expect us to fully understand the case before making our decision, and we can only do this when the parties present us with all the items necessary to bring about that understanding. While the litigants may not be pleased when a case is slightly delayed, I believe that justice delayed is far better than justice in "essence."
GUNTER and DANIELSON, JJ., join in this concurrence.
ROBERT L. BROWN, Justice, dissenting.
I write to underscore a disturbing trend in this court and that is the number of cases we are sending back for rebriefing. That number has increased dramatically in the last two years and is on track in 2009 to exceed the number of rebriefings ordered in 2008. No doubt sloppy preparation by counsel for appellants has caused most of these returns. But I fear, based on today's decision, that my court has become far too strict in its application of the abstract rule, and particularly the addendum rule set out in Supreme Court Rule 4-2(a)(8), and has gone far beyond what that rule requires. In doing so, we have crafted yet another procedural pitfall for the appellate lawyer, which in my judgment is largely unnecessary. We have also increased the cost of appeals due to the extra legal work required and caused delay in the resolution of these cases.
Let me hasten to add that I have been a part of sending these cases back for rebriefing, and so it is not my intention to disparage the court. Nevertheless, this case highlights the fact that we have become too strict in applying our rules.
The core problem, and the essence of my dispute today with other members of this court, is whether a particular response to a motion is "a pleading." Secondly, I raise the question of whether a response needs to be included in the addendum when the issues raised in that absent response can be determined from other motions and replies in the brief, the abstract of the hearing, or the order of the court. In the instant case, the absent response is a response to motion for summary judgment.
The rule relied on in the per curiam provides that our addendum shall include copies "of the order, judgment, decree, ruling, letter opinion ... along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case ...." Ark. Sup.Ct. R. 4-2(a)(8) (2008) (emphasis added). That rule is inapposite *69 to these facts. A response to a motion for summary judgment is not a pleading. Ark. R. Civ. P. 7(a); David Newbern & John J. Watkins, 2 Arkansas Practice Series: Civil Practice and Procedure § 11:1 (4th ed.).
It has never been this court's requirement in our rules that every motion and response before the trial judge be included in the addendum. That is the reason we adopted the rule in 2001 to require other relevant pleadings "essential to an understanding of the case." In re Modification of the Abstracting SystemAmendments to Supreme Court Rules 2-3, 4-2, 4-3, and 4-4, 345 Ark. App'x 626, 627 (2001) ("The recurring theme in the comments and at the heart of the Committee's proposal was the need for appeals to be decided on the merits."). The reason for that is obvious. As appellate judges, we need only have what is essential to our understanding of those issues before us on appeal, not every motion and response.
It is equally important for us to know that the issues and arguments raised to us on appeal were raised to the trial judge. In certain cases, that can be determined from the order or judgment or even from a listing of those issues and arguments in a reply, as occurred in the instant case.[1] We go too far, however, when we require every motion and response to be included in the addendum. But that is the direction in which this court is going. It almost behooves an appellate attorney now to abstract all hearings and the complete trial and to include every pleading, motion, response, and brief in the addendum to protect himself or herself from a rebriefing order.
The per curiam issued by my court today avoids any analysis or explanation for why the absent response is essential to our appeal. What follows is a point-by-point explanation of why the addendum and supplemental addendum pass muster and present issues ripe for our review in this case.
Appellant Bryan did not include his amended complaint, which added a claim against Cotter and Gassville for breach of implied warranty. However, that claim is not an issue in this appeal and need not be included in the addendum.
The first issue on appeal relates to whether the statute of limitations begins to run at the time of occurrence or discovery. Though appellant Bryan's response to appellee Grubbs, Hoskyn's motion for summary judgment is not in either addendum, appellee Grubbs, Hoskyn spends seven pages in its reply to that response describing what was in the response and responding to it. See supplemental addendum pp. 33-39. By anyone's measure, that sufficiently describes the response and tells us what was argued to the trial judge. In short, appellee Grubbs, Hoskyn cured that omission. Furthermore, appellant Bryan argued its position to the trial judge at the hearing, and that argument is abstracted in pages 1 through 7.
The next issue on appeal relates to exculpatory language found in the contract *70 at issue in provisions SC 26 and SC 7, on which appellee relies. Appellant Bryan's counsel, at abstract page 16, alludes to both special conditions. But more importantly, appellee Grubbs, Hoskyn's reply to appellant Bryan's response details Bryan's arguments regarding provisions SC 26 and SC 7 and then responds to those arguments. See supplemental addendum pp. 70-78.
Regarding quantum meruit, the supplemental addendum does include appellant Bryan's complaint, which fully describes Bryan's claim for quantum meruit relief. See supplemental addendum p. 8. The cities and Garver also refer to Bryan's quantum meruit claim and argue against it at the summary-judgment hearing. See abstract p. 16.
I firmly believe that it is the obligation of this court to decide cases when the essence of what was before the trial judge has been abstracted and placed in the addendum. Our emphasis should be on analyzing whether an absent response is essential to an appeal when it has been adequately described in another motion or reply or the order, rather than automatically ordering rebriefing with the added expense and delay that occasions. We did the correct analysis recently, as the per curiam acknowledges, in affirming summary judgment when the motion for summary judgment was not included in the addendum and we decided the motion was not essential. See Bryant v. Hendrix, 375 Ark. 200, 289 S.W.3d 402 (2008). We should do the same analysis in every case for an absent motion or response. Clearly, we did not do an analysis in the case at hand. Again, motions and responses are not pleadings.
What the opinions today illustrate is the need to amend our Supreme Court Rules, and specifically Rule 4-2(a)(8), to detail precisely what needs to be included in the addendum. The per curiam says individual orders for rebriefing from the court have referred to absent motions and responses in addition to "relevant pleadings." But Rule 4-2(a)(8) does not require that.
Perhaps, more importantly, we need to explain to the bar, in light of today's per curiam, that even though other motions, replies, and the order in the case may describe the issues raised to the trial court, that is not enough. This court wants all filings, including briefs and an abstract of the hearing that touch and concern the issues before this court, to be included in the abstract and addendum, even though that information can be gleaned from other filings.
Without such amendments to our rules, the orders for rebriefing will continue to mushroom (there have already been twelve since last August), and confusion will persist.
For all of these reasons, I respectfully dissent.
NOTES
[1] The dissent maintains that motions and responses are not pleadings and are therefore not required under Rule 4-2(a)(8). Our rebriefing orders in accordance with Rule 4-2(a)(8) have always referred to absent motions and responses as pleadings. See, e.g., Brock v. Townsell, 2009 Ark. 81. at 2, ___ S.W.3d ___, ___ (per curiam) (addendum lacked "relevant pleadings essential to an understanding of the case," including motions for summary judgment, responses and replies thereto, and briefs in support thereof); Neely v. McCastlain, 375 Ark. 478, 479, 291 S.W.3d 585, 586 (2009) (per curiam) (addendum lacked "relevant pleadings essential to an understanding of the case," including motion for summary judgment and response thereto); Whiteside v. Russellville Newspapers, Inc., 375 Ark. 245, 247, 289 S.W.3d 461, 462 (2008) (per curiam) (addendum lacked "certain pleadings," including brief in support of summary-judgment motion, response to summary-judgment motion and brief in support, reply to response to summary-judgment motion, and response to reply to initial response); Preston v. Stoops, 373 Ark. 115, 116, 281 S.W.3d 720, 720 (2008) (per curiam) (addendum lacked "these pleadings," including response to summary-judgment motion and reply to response); White County v. Cities of Judsonia, Kensett, & Pangburn, 368 Ark. 603, 604, 247 S.W.3d 863, 863 (2007) (per curiam) (addendum lacked "relevant pleadings," including motion for summary judgment and brief in support and "any of the other pleadings considered by the circuit court in reaching its determination"); Unum Life Ins. Co. of Am. v. Edwards, 361 Ark. 150, 151, 205 S.W.3d 126, 127 (2005) (per curiam) (addendum lacked "numerous pleadings," including motion for summary judgment and brief in support, response to motion, reply to response, and supplemental response).
[2] This court recently declined to order rebriefing in an appeal of a summary judgment, despite the fact that the motion for summary judgment was not included in the addendum. Bryant v. Hendrix, 375 Ark. 200, 289 S.W.3d 402 (2008). We chose to accept the case as it was briefed and address the merits because the issues on appeal were strictly questions of law, and there were no facts in dispute. Specifically, the appellants contended that the circuit court erred as a matter of law in ruling that their claims were precluded by the statute of limitations and that the relation-back doctrine does not apply to the substitution of plaintiffs. "On appeal, Appellants do not contend there are disputed issues of fact; rather, they argue the circuit court erred as a matter of law in granting summary judgment on the basis of the statute of limitations." Id. at 203, 289 S.W.3d at 404. Such is not the case here, where Bryan argues that the circuit court's interpretation of the contract at issue was flawed.
[1] The dissent's current position that we can rely on one side's summary of a case is wholly contrary to the position taken in Latta v. State, 350 Ark. 488, 88 S.W.3d 833 (2002). There, the same dissenting justice opposed the majority's purported reliance on the State's brief to reverse a circuit court's decision, stating that "[t]he result of all this is that the principle of decision-making based on the adversary system has gone by the boards." This begs the question: Is it an adversary system if we rely on a party's summary of the opposing party's arguments, responses, and replies?
[1] This court has stated on numerous occasions that we can go to the record to affirm a circuit court order or judgment even when the pertinent pleadings, motions, and documents are not abstracted or placed in the addendum. See, e.g., Allen v. Allison, 356 Ark. 403, 155 S.W.3d 682 (2004). That principle begs the question of when going to the record to affirm could be invoked if all essential pleadings, motions, and documents necessary for our review must be either abstracted or placed in the addendum on the front end in order for the briefs to be compliant with our rules. At the very least, this is another area that must be clarified by this court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619297/ | 152 So. 2d 541 (1963)
244 La. 408
TEXACO INC., et al.
v.
VERMILION PARISH SCHOOL BOARD et al.
Nos. 46442, 46444, 46446, 46447, 46450.
Supreme Court of Louisiana.
April 29, 1963.
*542 Richard S. Lake, William J. Conrad, New Orleans, Bailey & Mouton, Lafayette, Stone, Pigman & Benjamin, Paul O. H. Pigman, P. R. Monrose, Jr., W. J. McAnelly, Jr., New Orleans, Vinson, Elkins, Weems & Searls, Joseph H. Stephens, Jack Pierce Brook, Houston, Tex., Liskow & Lewis, New Orleans, for plaintiffs-applicants.
Heller & Heller, New Orleans, Davidson, Meaux, Onebane & Donohoe, Lafayette, Broussard & Broussard, Abbeville, for respondents.
HAMLIN, Justice.
In the exercise of our supervisory jurisdiction (Art. VII, Sec. 11, La.Const. of 1921) we directed limited certiorari to the Court of Appeal, Third Circuit, in order that we might review its judgment affirming a judgment of the trial court which fixed and adjudged the rights of plaintiffs and defendants under certain agreements designated as the "Erath Agreements."[1]
Texaco Inc., Operator of the Erath Unit of the Erath Field, Vermilion Parish, instituted the present declaratory judgment proceedings (LSA-R.S. 13:4231-4246, now incorporated in Arts. 1871-1883, LSA-C. C.P.); it prayed for a judicial interpretation of the Erath Agreements, infra, and asked that such interpretation decree that a certain sand known as the "School Board Sand," infra, was covered by the agreements.
Defendants, approximately six hundred persons, were all parties having an interest in the royalties, leases, minerals, and lands included in the Erath Unit; it comprised some eighty-three tracts of land with a surface area of over four thousand acres.
The matter involved concerned the Erath Field; it contained tremendous quantities of oil and gas bearing sands. The original discoverers holding leases in the unit area concluded that the best method of developing these resources would be through a recycling plant, and the Erath Agreements were formulated by a committee of geologists, petroleum engineers, experts in the oil industry, and attorneys representing the operators, royalty owners, and land owners in order to carry out the project. The Erath Unit was established in 1942 by two agreements which constituted the Erath Agreements; one was known as the "Royalty Owners Unitization Agreement" and was *543 executed by the owners of royalty and other interests, and the other was termed the "Unit Operating Agreement" and was executed by the owners of operating interests and working interests. Both agreements were executed and became effective at the same time, their purposes were the same, and they were interrelated and complementary to each other.
As provided in the agreements, the recycling unit was established by January 1, 1944, at an alleged cost of between $3,500,000.00 and $4,000,000.00.[2] The Erath Agreement unitized eighteen producing sands encountered in twenty-nine wells, eleven being pre-unit wells and eighteen being drilled before 1944 below 8,000 feet. The agreements adopted the acre-foot formula as a basis for the participation of each tract in unit production and costs and in unit operation and management. By this method the hydrocarbons in place under the unit as a whole are calculated as well as the hydrocarbons in place under each tract, and each tract is allocated an equity which its underlying hydrocarbon content bears to the total hydrocarbons in place under the entire unit. A final calculation of equities had to be made at a date not later than June 1, 1944.[3]
The equities were calculated (Revised Exhibit D), and the Erath Unit operated within the eighteen producing sands for approximately twelve years.
In 1956 one of the existing unit wells on the Vermilion Parish School Board Tract (part of the Erath Field and north of the Fault Line) was deepened and completed in a sand known as the "School Board Sand" at an interval of 11,784 to 11,822 feet, Schlumberger measurements. This sand is sometimes referred to as the "Nineteenth Sand." The Department of Conservation, State of Louisiana, issued clarification orders with respect to the exploration for and production of gas and condensate from the School Board Sand of the Erath Field (Order 34-F). The Vermilion Parish School Board and other parties owning interests in the tracts overlying the School Board Sand would not recognize the sand as included in the Erath Agreements, and they declined to accept payment on account of production from that sand on a unitized basis.
Texaco Inc., as stated supra, instituted the present suit; after hearing and submission of the matter on briefs, the trial court interpreted the Erath Agreements on the issues presented and held in part:
"(1)
"The School Board Sand as defined in Conservation Department Order No. 34-F, dated December 19, 1956 * * * is covered by the Erath Agreements, as amended, as are all sands below 8000 feet located beneath the Unit area as delineated by said agreements and containing `unitized substances' defined in Article I(b) of said Erath Agreements, whether or not said sands and reservoirs were known or unknown at the time of the confection of such agreements.
*544 "(2)
"The percentage of equities allocated to each numbered tract of the Unit Area, expressed in Exhibit `D' of said agreements as finally amended, * * * has application only to those sands and reservoirs located in the Unit Area known to contain unitized substances capable of being produced commercially on and as of June 1, 1944.
"(3)
"Said percentage of equities as expressed June 1, 1944, does not apply to the School Board Sand Reservoir containing unitized substances discovered in 1956 north of the fault line lying in the north portion of the Unit Area * * * nor does it apply to any other like sands and reservoirs in said Unit Area below 8,000 feet which were not known and discovered as commercially productive horizons as of June 1, 1944.
"(4)
"The Unit Operating Committee, subject to approval of the Commissioner of Conservation of the State of Louisiana, is expressly charged with the power and duty to calculate the percentage of equity of each tract lying in the Unit Area north of the fault line * * * using the method and formula set out in Article IV of the Royalty Owners Agreement, and in Article V(1) of the Unit Operating Agreement applicable to known reservoirs in June, 1942 and 1944, and the participation in production from said reservoir by parties having interests in the tracts north of the fault line is to be governed accordingly; it being held that only those parties having interests in tracts within the Unit Area overlying the School Board Sand Reservoir north of the fault line shall participate in production from said reservoir.
"(5)
"All sands and reservoirs containing unitized substances as defined in said agreements capable of being produced commercially and located below 8000 feet from the surface of the earth, not known and determined in June, 1942, or June, 1944, which may be hereafter placed in production, are to be similarly calculated and treated.
"(6)
"The provisions of Article XI(3), (11), (12), and (13) of the Unit Operating Agreement are held to be applicable to such new sands and reservoirs containing unitized substances hereafter placed on production in the unit area, including the School Board Sand north of the fault line shown on Plaintiff's Exhibit P-B, and the grant of express and implied powers of said Unit Operating Committee therein set out is held to include the giving of notices to all interested parties of such calculations and adjustments as may be or hereafter become necessary hereunder for the purpose of carrying out the objects of said Erath Agreements for the benefit of all parties in interest, in keeping with the views herein expressed."
After the Court of Appeal affirmed the foregoing judgment, Texaco Inc., Tidewater Oil Company, Grace Goldston Barber, et al., Humble Oil & Refining Company, and Phillips Petroleum Company separately applied to this Court for Certiorari. Writs were granted, limited to a review of these two questions:
"1. Whether royalties from the School Board Sand should be paid
"a. On the basis of a recalculation of the equity of each tract in the whole Erath Unit, or
"b. On the basis of a calculation of the percentage of equity of each tract shown on Plaintiff's Exhibit P-B to *545 be lying in the Unit Area North of the fault line.
"2. Whether the percentage of equity in all sands and reservoirs containing unitized substances not known and determined to be productive in June, 1944, which may hereafter be placed in production, are to be calculated according to judgment to be rendered herein."
The following specification of errors was assigned in this Court by Texaco Inc. and those parties alligned with it:
"1. Since it has been finally determined herein that the School Board Sand and such general sands as may hereafter be encountered below 8000 feet are unitized sands and covered by the Erath Agreements, it was entirely inconsistent to hold and the Court of Appeal erred in holding, that production from such sands belongs entirely to the tracts overlying the same to the exclusion of all other tracts in the Unit Area.
"2. The Court of Appeal erred in so segregating and allocating the production from the School Board Sand and the other sands in question, as the express provisions of the Erath Agreements are to the contrary.
"3. The judgment of the Court of Appeal is erroneous, as it creates foreign bodies within the Unit Area which are so incompatible with the general unit plan of joint operation and common ownership as to render it impossible to develop and operate the segregated sands as part of the larger unit either separately or with relation to other unitized sands.
"4. The Court of Appeal erred in ruling that production from certain sands unitized by the Erath Agreements must be awarded on a nonunitized basis when the parties themselves did not so plead or contend in this case, did not offer an iota of evidence in support thereof, and never envisioned such a concept as a legal possibility in this suit.
"5. The Court of Appeal erred in failing to hold that the recalculated equities as set forth on Revised Exhibit D of the Erath Agreements govern all unit production for the entire life of the Recycling Unit whether obtained from the named sands or from any other unitized sand thereafter encountered.
"(Alternative)
"6. In the event it is held that the recalculated equities of Revised Exhibit D do not fix participation in unit production for the life of the unit, the Court of Appeal erred in failing to hold that the equities for the entire Recycling Unit are to be determined by adding the value of the School Board Sand to the equities shown on Revised Exhibit D, and making such adjustment in the tract equities for the field as will result from allocating the increased equity represented by the School Board Sand to the tracts overlying the same.
"7. And said court erred in failing to adopt the same formula with respect to any other unitized sand hereafter encountered."
Vermilion Parish School Board, et al. urge in this Court that the manner of distributing the School Board Sand production ordered by the Court of Appeal is fair and equitable and conforms with the intent of the parties to the unit agreements, and that it should be confirmed.[4]
*546 Because of our limited review, the only matters for determination before this Court are the basis of payment of royalties and the effect of such determination on the payment of royalties on reservoirs discovered in the future from sands now unknown.
Bearing the above matters in mind, we cannot help but observe the following insoluble problems that counsel for Texaco Inc. have set forth in brief and which they state would not have gone unanswered if the contracting parties had intended to segregate certain sands of the agreements as decreed by the Court of Appeal
"1. Are the costs of drilling and developing the School Board Sand and of processing and recycling production therefrom to be borne entirely by the tracts overlying that sand, or by the entire unit?
"2. If such costs are to be borne entirely by the tracts overlying the School Board Sand, how can joint unit costs which are applicable to all tracts in the unit be divided and separately allocated according to sands?
"3. If costs relating to the School Board Sand are to be borne by the entire unit, does the School Board Sand bear its proportion of costs of operation and production elsewhere in the Unit Area?
"4. If costs relating to the School Board Sand are to be apportioned on a unit-wide basis, how can the percentages of those costs for the tracts overlying the School Board Sand be determined, considering that, under the Court's ruling, the School Board Sand is a segregated sand and has no percentage value in the unit as a whole?
"5. How can the same cost determination be made for the remaining tracts in the unit with respect to the School Board Sand?
"6. Assuming such percentage factors could be determined and such costs allocated on a unit wide basis, how will the Court preserve the balance between costs and production as provided in the agreements considering that all production from the School Board Sand is allocated to the tracts overlying that sand?
"7. Since unit operations and management are governed by voting interest, will the School Board Sand have a voting interest in operations elsewhere on the unit, and will the remaining tracts of the unit have a voting interest in operations relating to the School Board Sand?
"8. How will the voting interests of each be calculated, considering that the School Board Sand does not represent a percentage interest in the whole unit?
"9. How can the separate ownership of Unitized Substances produced from the School Board Sand be preserved if such substances are injected into other formations, and how can the unit wide ownership of Unitized Substances produced from elsewhere in the Unit Area be preserved if such substances are injected into the School Board Sand?
"10. If pressure maintenance is needed in the School Board Sand to properly develop that sand and to insure the greatest ultimate recovery of Unitized Substances therefrom, how will the problems stated in 9 be coped with?
"11. Can the leases within the entire Unit Area be legally preserved if the only unit production being obtained is from the School Board Sand and the only operations being had are in connection with that sand?
"12. If the School Board Sand should be the last producing sand, would the payment of royalties therefrom to the owners of the overlying tracts constitute full performance of all obligations to pay royalties, and maintain *547 the unit agreements in force on the entire Unit Area?
"13. Will distribution of production from the School Board Sand to the tracts overlying that sand interrupt prescription on mineral and royalty interests elsewhere in the unit which are not otherwise receiving unit payments or being otherwise exercised?
"14. In the event of loss of interest in any tract overlying the School Board Sand, how will it be possible to translate that loss, insofar as the School Board Sand is concerned, into a percentage interest in the entire unit as required by the agreements?"
The above problems or questions are serious beyond doubt; to ignore all of them, and to allow the judgment of the Court of Appeal to stand, would lead to an unreasonable, inequitable, or absurd result.
"Since persons may be expected to contract with one another on a basis equitable to each, a contract should not be given a construction that will work a hardship on one of the parties, where this may be avoided without defeating, in whole or in part, the intention of the parties at the time of the execution of the agreement." Coyle v. Louisiana Gas & Fuel Co., 175 La. 990, 144 So. 737, 742
"In interpreting the contract, it is, of course, of primary importance to discover whether its provisions are clearly set forth and that they express the true intention of the parties. And, even if the words used are fairly explicit, it is our duty to refrain from construing them in such a manner as to lead to absurd consequences. See Article 1945 of the Civil Code. * * *" Bondio v. Joseph Binder, Inc., La.App., 24 So. 2d 398.
"Where a contract is capable of a construction in accordance with justice and fair dealing, the court will adopt such construction, instead of one entailing loss to a party to the contract. * * *" Syllabus, Ascension Red Cypress Co., Ltd. v. New River Drainage Dist., 149 La. 764, 90 So. 165.
"* * * the general rule of law is that the intent must be gathered from the language of the instrument itself, and the contract should be enforced unless such enforcement would lead to absurd consequences, R.C.C. art. 1945, par. 3." Lama v. Manale, 218 La. 511, 50 So. 2d 15, 23 A.L.R. 2d 1312.
"It is elementary that in the interpretation of a contract the court must give legal effect to the instrument according to the true intent of all the parties, and such intent is to be determined by the words used therein, without the aid of extrinsic evidence, when these are clear and explicit and lead to no absurd consequence. Revised Civil Code, Article 1945; * * *." Gulf Refining Co. v. Garrett, 209 La. 674, 25 So. 2d 329.
"Where a contract is capable of construction in accordance with justice and fair dealing, the court will adopt such construction, instead of one entailing loss to a party to the contract. Civil Code, art. 1951. * * *" Terrell v. Alexandria Auto Co., Inc., 12 La.App. 625, 125 So. 757.
"We know that a contract is the law between the parties and that they are bound by their agreements regardless of harmful consequences, provided the agreement is not contra bones mores or in violation of some prohibitory law. However, where the issue is as in the instant casewhat are the terms of the verbal agreementthe fact that informed and experienced persons do not usually and customarily bind themselves to unjust and unreasonable obligations is a serious factor that must be taken into consideration in determining that question." Oil Field Supply & *548 Scrap Material Co. v. Gifford Hill & Co., 204 La. 929, 16 So. 2d 483, 484.
"* * * The intention of the parties is of paramount importance and must be determined in accordance with plain, ordinary and popular sense of the language used in the agreement and by giving consideration on a practical, reasonable and fair basis to the instrument in its entirety. * * *" McKinney v. American Security Life Insurance Co., La.App., 76 So. 2d 630.
"Article 1945 of the Civil Code provides that agreements have the effect of law upon the parties, who alone can abrogate or modify them, and that the courts are bound to give effect to all contracts according to the true intent of the parties when the language is clear and leads to no absurd consequences. Conformable with this principle, which is also stated in Article 1901 of the Code, this Court has many times observed that it is not with[in] its province to alter or make new contracts for the parties, its duty being confined to the interpretation of the agreements the parties have made for themselves, and, in the absence of any ground for denying enforcement, to render them effective. Moriarty v. Weiss, 196 La. 34, 198 So. 643; Texas Co. v. State Mineral Board, 216 La. 742, 44 So. 2d 841." Stack v. De Soto Properties, 221 La. 384, 59 So. 2d 428.
Guided by the above jurisprudence and codal interpretations, as well as a study of the Erath Agreements (the pertinent articles of which are set out in the opinion of the Court of Appeal, 145 So. 2d 383), it becomes obvious that the trial court and the Court of Appeal were correct in finding that:
"`The entire purport of the agreements was and is to insure for each landowner the value of the minerals in place under his land, then known to exist and to be discovered thereafter below 8000 feet.'" (145 So.2d p. 388) (Emphasis ours.)
From the foregoing finding, it follows that the parties to the Erath Agreements intended that production from any sand, whether it be then existent or discovered in the future, was to be attributed to the whole of the Unit Area; otherwise, the interpretation of the agreements would be unreasonable and the intentions of the parties would be negated.
It is manifest from a study of the record that the parties to the Erath Agreements were experienced and informed persons who contemplated justice and fair dealing with one another; they did not, and could not have contemplated independent units within a unitized area such as the Erath Field. To interpret the agreements as providing that production should be attributed to anything other than the whole would lead to absurd and inequitable consequences never intended.
Production and costs are interrelated and must be determined by experts in those fields; costs are allocated to and associated with production. Where as in the present case a unitized field exists and production is general and cumulative, costs are to be proportionate according to formulas adopted by experts and agreed upon by the parties.
As to the division of royalties, an examination of the agreements (set forth in the Court of Appeal Decision) discloses that the parties thereto intended that each would receive his fair and equitable share of the products recovered.
It is pertinent here to observe that Relator Texaco Inc. states in brief:
"We respectfully submit that the judgment of the Court of Appeal to the extent that it awards production from the School Board Sand, and any other unitized sand later encountered, to the overlying tracts is clearly violative of the Erath Agreements, and should be *549 reversed and set aside, and, in turn, judgment should be rendered herein:
"(1) decreeing that the recalculated equities for the entire field as reflected by Revised Exhibit D govern production of Unitized Substances from the Erath Unit for all time, including production from the named sands, the School Board Sand and any other unitized sand as may be later encountered within the Unit Area.
"Alternatively.
"(2) decreeing that the equities for the entire Recycling Unit are to be determined by adding the School Board Sand to the equities shown on Revised Exhibit D, and making such adjustment in the tract equities for the field as will result from allocating to the tracts overlying the School Board Sand the increased equity in the unit represented thereby; and
"(3) decreeing that the same method of recalculation will apply to any other unitized sand as may hereafter be encountered within the Unit Area."
It is also pertinent to note that Vermilion Parish School Board states in brief:[5]
"ALTERNATIVE SUGGESTION AS TO DISTRIBUTION OF SCHOOL BOARD LAND PRODUCTION
"Appellee suggests, as an alternative method for distributing the School Board sand production, that all equities be recalculated by using the percentages shown on revised Exhibit `D' and in making such unit-wide adjustments as will result from adding the value of the total mineral content of the School Board sand to the total mineral content and value of the unit and crediting the tracts overlying the School Board sand with the increased equity represented thereby. * * *"
The adoption of the alternate plan seems to be the equitable and reasonable solution to this controversy without working a hardship upon the parties. We therefore find that a reasonable distribution for the equities derived from the School Board Sand would be a recalculation of all equities by using the percentages shown on Revised Exhibit D, and making such unit-wide adjustments as would result from adding the value of the School Board Sand to the total unit value and crediting the overlying tracts with the increased equity represented by that sand.
For the reasons assigned, the judgment of the Court of Appeal, Third Circuit, is reversed and set aside, insofar as it affirms the judgment of the trial court with respect to the royalties herein concerned; insofar as it pertains to matters not treated herein because of our limited review, the judgment of the Court of Appeal is not disturbed.
It is now ordered and decreed that the equities for the entire Recycling Unit are to be determined in accordance with the alternate plan, supra, by adding the School Board Sand to the equities shown on Revised Exhibit D, and making such adjustment in the tract equities for the field as will result from allocating to the tracts overlying the School Board Sand the increased equity in the unit represented thereby. It is further ordered that this same method of recalculation apply to any other *550 unitized sand as may hereafter be encountered within the Unit Area.
All costs to be paid by petitioner, Texaco Inc., Unit Operator of the Erath Unit.
SUMMERS, J., recused.
NOTES
[1] La.App., 145 So. 2d 383.
[2] The record discloses that by the recycling process gas is produced from the unitized sands, the desirable hydrocarbon fractions are extracted therefrom, and the residue gas is then returned to such of the unitized formations as the operator may select for the purpose. This enables the operator to store gas awaiting a favorable market, and it also maintains reservoir pressures near their original values, thereby preventing loss from condensation and from water intrusion in the sands which would result from diminishing pressures. It is alleged that at the time the unit was created, the expert opinion was that the recycling operation would result in the recovery of 133 million barrels of plant product, 50% of which would otherwise be lost, and in the saving of 1.5 trillion cubic feet of gas for the day when a favorable market would be available.
[3] From a statement of the case of Relator, Texaco Inc. See, also, Art. IV, "Royalty Owners Unitization Agreement."
[4] On March 27, 1963, counsel for Vermilion Parish School Board filed a motion asking that this Court issue an order limiting the argument to be presented by plaintiffs-appellants in this matter to Specification of Errors Nos. 6 and 7, and to the limited questions specified by this Court to be presented on this writ of review. They further requested that Specification of Errors Nos. 1, 2, 3, 4 and 5 be stricken from Texaco Inc.'s brief.
[5] Phillips Petroleum Company (Applicant in No. 46,444), Humble Oil & Refining Company (Applicant in No. 46,446), Grace Goldston Barber, et al. (Applicants in No. 46,447), and Tidewater Oil Company (Applicant in No. 46,450) have joined with Texaco Inc.; John L. Abercrombie, et al., have joined with Vermilion Parish School Board, et al. In view of the foregoing, one decree will suffice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920235/ | 35 Md. App. 94 (1977)
369 A.2d 150
IN RE APPEAL NO. 646, SEPTEMBER TERM, 1976 FROM THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, SITTING AS A JUVENILE COURT.
No. 646, September Term, 1976.
Court of Special Appeals of Maryland.
Decided February 14, 1977.
The cause was argued before MOYLAN, DAVIDSON and LISS, JJ.
Harriette Cohen, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.
*95 Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George's County, and James S. Nickelsporn, Assistant State's Attorney for Prince George's County, on the brief, for appellee.
LISS, J., delivered the opinion of the Court.
This is an appeal from the action of the trial court waiving jurisdiction over the appellant from the Juvenile Court of Prince George's County to the Circuit Court of that county.
At the hearing the State requested a waiver of jurisdiction over three separate alleged acts of delinquency a robbery and two armed robberies. No witnesses were called at the hearing; in lieu of the testimony, counsel for the State and the accused presented oral argument.
The purpose of a juvenile waiver hearing is to determine whether or not the juvenile is a fit subject for juvenile rehabilitative measures. Matter of Flowers, 13 Md. App. 414, 283 A.2d 430 (1971); Kemplen v. Maryland, 428 F.2d 169 (4th Cir.1970).
Waiver may be granted only where a preponderance of the legally sufficient evidence shows that such a determination is proper in light of the factors enumerated in the Annotated Code of Maryland (1974, 1976 Cum. Supp.), Courts and Judicial Proceedings, § 3-817 (d)(1)-(5):[1] age of the child; mental and physical condition of the child; child's amenability to treatment in any institution, facility or program available to delinquents; nature of the offense and the child's alleged participation in it; and the public safety. Matter of Trader, 20 Md. App. 1, 315 A.2d 528 (1974); Matter of Waters, 13 Md. App. 95, 281 A.2d 560 (1971).
All the factors need not be resolved against the juvenile in order to justify waiver, but the court must consider each factor weighing them in relation to one another in determining whether the child is an unfit subject for *96 juvenile rehabilitative measures. Matter of Johnson, 17 Md. App. 705, 304 A.2d 859 (1972).
We said in In Re Arnold, 12 Md. App. 384, 396-397, 278 A.2d 658, 664 (1971), that "disposition in a juvenile case is committed to the sound discretion of the juvenile judge, to be disturbed on appeal only upon a finding that such discretion has been abused." In Re Hamill, 10 Md. App. 586, 271 A.2d 762 (1970).
In Matter of Johnson, supra, at page 713 we stated, "What we said in Arnold concerning discretion in juvenile dispositions is equally applicable to waiver hearings."
The juvenile court judge had before him a waiver investigation report and recommendation prepared by the Division of Juvenile Services. The court obviously considered the report in reaching its conclusion as to waiver.
Maryland Rule 913 e. provides in part:
"e. Order.
1. If the Court concludes that its jurisdiction should be waived, it shall: (a) state the grounds for its decision on the record or in a written memorandum filed with the clerk...."
The purpose of the statement, obviously, is to provide the parties and the reviewing court with the benefit of the trial court's reasons for its determination that the juvenile is an unfit subject for juvenile rehabilitative measures. It is not necessary that the statement contain a point by point exposition of the trial court's consideration of each of the five enumerated criteria. At a minimum, however, the statement should contain such factual findings as would permit the conclusion that the trial court has considered the criteria individually and in relation to each other and the basis on which it has reached its conclusion.
In this case the trial court in explaining its decision said:
"Well, from the standpoint of this member of the Court, the patronizing attitude of the mother and others in society is one reason this type of thing goes on. He is a child for part of the day, and the *97 rest of the day he is capable of committing adult crimes.
The legislature has set the cut-off date at 15 years, and consequently I think there are cases where that is too old.
The Court is going to grant the waiver and let him be treated as an adult. We will see if that has some effect on his future behavior."
Appellant urges that this language is not sufficient to comply with the requirements of Maryland Rule 913 e. We agree. We are unable to determine from the statement made by the trial court what consideration, if any, was given to the required criteria for waiver.
We note that the waiver report of the Department of Juvenile Services recommended that the waiver be denied. The trial court is not required to follow that recommendation and may act in its own sound discretion. See Matter of Murphy, 15 Md. App. 434, 291 A.2d 867 (1972). We believe, however, that where such a recommendation is made that the statement of the trial court under Maryland Rule 913 e. should reflect that the trial court has considered the recommendation and the court's reasons for rejecting the recommendation.
We shall remand this case to the Circuit Court for Prince George's County, sitting as a Juvenile Court, without reversal or affirmance.
Case remanded without affirmance or reversal for further proceedings in conformity with this opinion.
Costs to abide results.
NOTES
[1] The same criteria are enumerated in Rule 913, section d. of the Maryland Rules of Procedure as "considerations in determining waiver." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619330/ | 152 So.2d 526 (1963)
Marion Harvey BROOKBANK and Yell for Pennell, Inc., a Florida corporation, Appellants,
v.
Peter MATHIEU, Sr., and Ida Z. Mathieu, Appellees.
No. 62-456.
District Court of Appeal of Florida. Third District.
April 9, 1963.
Rehearing Denied May 14, 1963.
*527 Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellants.
Blackwell, Walker & Gray, Melvin Boyd, James E. Tribble, Miami, for appellees.
Before CARROLL, HORTON and BARKDULL, JJ.
HORTON, Judge.
Appellant Brookbank, defendant below in a negligence action, seeks review of two adverse money judgments and an adverse judgment on his counterclaim. Appellant Yell for Pennell, Inc., [hereinafter referred to as Pennell] co-defendant below, has filed a joinder in appeal to review the money judgments.
Brookbank obtained permission from his employer, Pennell, to leave work and attend to some personal business. He proceeded to his home, obtained his personal car, and, together with his wife and child, set out for downtown Miami. Pennell had a plumbing job several blocks off Flagler Street near N.W. 18th Avenue. On his way downtown, Brookbank turned off Flagler Street onto N.W. 18th Avenue, intending to drive by the job site and see if a co-worker was there. He did not intend to stop nor had he been instructed to do so by Pennell. The appellees, who resided on N.W. 18th Avenue, had pulled out of their driveway and were proceeding southward on 18th Avenue at a speed of three to five miles per hour. Appellee husband was driving. Brookbank was traveling at a speed of approximately twenty miles per hour. At a point approximately 75 feet from the intersection of Flagler Street and N.W. 18th Avenue, the parties were involved in a collision, the left front of Brookbank's car striking the corresponding section of the appellees' car The two vehicles appeared to be headed straight into each other. There was no marked center line on 18th Avenue at the point where the accident occurred. Each party contended that the other was driving over the imaginary center line.
The appellees brought suit against Brookbank alleging negligence and seeking damages for personal injuries. Brookbank answered in the form of a general denial, alleging contributory negligence as an affirmative defense, and counterclaimed charging the appellee husband with negligence. Subsequently the appellees were permitted to amend their complaint to add Pennell as a party defendant. Ultimately the cause came on for trial. The appellees called Brookbank as an adverse witness and he testified that just prior to the accident he was not looking at the road directly ahead of him, but was looking to his right at a driveway adjacent to a large building. When he returned his attention to the road, the appellees' car was about 25 feet away. At one point Brookbank testified that he did not take any evasive action prior to the collision. Later he stated that he tried to stop but did not have sufficient time. The appellees testified that after the accident Brookbank said he was sorry and that he was not looking. Brookbank admitted a *528 conversation with the appellees but said he did not recall making such a statement. At the conclusion of all the evidence the trial court directed verdicts in favor of the appellee wife against both defendants and in favor of the appellee husband on Brookbank's counterclaim. The issues of negligence and contributory negligence were considered by the jury only as they related to the claim of the appellee husband in whose favor it returned a verdict. Subsequently, the trial court entered the judgments appealed.
The appellants contend the trial court erred in directing verdicts against them. We find this contention has merit.
The authority to direct a verdict should be exercised with caution in order to avoid any encroachment on the right of a litigant to a jury trial. See 32 Fla.Jur., Trial, § 84, and numerous cases cited therein. This is especially true in negligence cases where the function of the jury to weigh and evaluate the evidence is particularly important since reasonable men often draw varied conclusions from the same evidence. Barr v. Mizrahi, Fla.App. 1960, 124 So.2d 508. In such cases the trial judge is not warranted in directing a verdict unless the evidence as a whole, and all reasonable deductions to be drawn therefrom, points to but one reasonable conclusion. See Barr v. Mizrahi, supra; Alessi v. Farkas, Fla.App. 1960, 118 So.2d 658; Nelson v. Zeigler, Fla. 1956, 89 So.2d 780. Put another way, he may not direct a verdict where there is any evidence on which the jury could lawfully find for the movant's adversary, Carney v. Stringfellow, 73 Fla. 700, 74 So. 866; Hillsborough Grocery Co. v. Leman, 51 Fla. 203, 40 So. 680, even if a preponderance of the evidence appears to favor the movant. Cameron & Barkely Co. v. Law-Engle Co., 98 Fla. 920, 124 So. 814; Florida East Coast R. Co. v. Hayes, 66 Fla. 589, 64 So. 274; see also 32 Fla.Jur., Trial, § 93. Nor may he weigh the evidence, Leslie v. Atlantic Coast Line R. Co., Fla.App. 1958, 103 So.2d 645, resolve conflicts in the evidence, Butler v. Phily, Fla.App. 1961, 133 So.2d 337; Finley P. Smith, Inc. v. Schectman, Fla.App. 1961, 132 So.2d 460; Bass v. Ramos, 58 Fla. 161, 50 So. 945, or pass on the credibility of witnesses. Leslie v. Atlantic Coast Line R. Co., supra; Duval Laundry Co. v. Reif, 130 Fla. 276, 177 So. 726.
Reverting to the case at bar, we have examined the record and found material conflicts in the evidence relative to the issues of negligence and contributory negligence which require the submission of these issues to a jury. The evidence is not so clear and the inferences so inescapable that it may be concluded, as a matter of law, that the appellant Brookbank's negligence was the proximate cause of the appellees' injuries.
Appellant Pennell contends the court erred in denying its motion for summary judgment. This contention also has merit.
The facts relative to Brookbank's employment and the purpose of his trip are not in dispute and lead to the inescapable conclusion that, as a matter of law, he was not acting within the scope and course of his employment. He had obtained leave from his employer to go on a personal mission and was proceeding to his destination to transact his private business when the accident occurred. The mere fact that on the way he chose to drive by a job site without his employer's knowledge or direction was not sufficient to place him within the scope and course of his employment. Pennell's motion for summary judgment should have been granted. Rule 1.36(c), Florida Rules of Civil Procedure, 30 F.S.A.; see Foremost Dairies, Inc. of the South v. Goodwin, 158 Fla. 245, 26 So.2d 773.
One other point raised by the appellants should be discussed in view of the fact that this case is to be retried. Appellants contend that their counsel should have been permitted to interrogate Brookbank by leading questions on cross examination after *529 he had been called by the appellees' counsel as an adverse witness. We agree.
Rule 1.37(a), Florida Rules of Civil Procedure, in addition to extending the right to call an adverse party as a witness, also provides: "* * * and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross examined by the adverse party only upon the subject matter of his examination in chief." [Emphasis supplied] The obvious intent of the rule is to extend to the adverse party the same right of cross examination that is extended to his opposite when a witness is called under the rule. It would be manifestly unjust to permit a party to call, as an adverse witness, the other party and not permit that other party to examine by cross examination on the subject matter brought out by the examination in chief.
Although the appellant Brookbank appealed from both money judgments as well as the adverse judgment on his counterclaim against the appellee Peter Mathieu, he nevertheless failed to assign as error the money judgment in favor of appellee Peter Mathieu. Notwithstanding this failure, we conclude that the interests of justice require a complete retrial, including those issues decided by the jury upon the claim of appellee Peter Mathieu against appellant Brookbank. To permit the judgment upon the jury verdict against Brookbank in favor of Peter Mathieu to stand would appear to render the question of Brookbank's negligence as to appellee Ida Z. Mathieu and his contributory negligence on his counterclaim against Peter Mathieu moot. This we feel does not promote the interests of justice or provide a fair trial of the issues.
Other questions raised by appellants have been examined, but in view of the conclusions reached, we deem it unnecessary to discuss them.
In view of the opinions expressed, the two money judgments, as well as the judgment on appellant Brookbank's counterclaim, are reversed, and these causes are remanded for a new trial. In addition, the trial court is directed, upon remand, to enter summary judgment in favor of appellant Yell for Pennell, Inc.
Reversed and remanded with directions.
ON PETITION FOR REHEARING
PER CURIAM.
Upon appellees' petition, this court granted and heard oral argument on the sole question of the propriety of the reversal of a judgment in favor of the appellee Peter Mathieu.
The appellee Peter Mathieu claimed loss of services, companionship and consortium of his wife, the appellee Ida Z. Mathieu, allegedly caused by injuries sustained as the result of alleged negligence of the appellant Brookbank. It is apparent from the pleadings in this cause that the claim of the appellee Peter Mathieu was derived from, and dependent upon, establishment of the claim of the wife. Since the husband's claim is derivative in nature, and this court has seen fit by its opinion of April 9, 1963, to reverse the judgment based on a directed verdict in favor of Ida Z. Mathieu, it follows that the dependent or derivative claim of Peter Mathieu would necessarily fall with the reversal of the judgment in favor of his wife. In order to prevent, upon remand, fundamental error, such judgment should be reversed.
Accordingly, we adhere to the views expressed in our opinion of April 9, 1963. Other questions raised by the appellees' petition for rehearing have been considered but found to be without merit.
The petition for rehearing is, therefore, denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/242082/ | 243 F.2d 829
100 U.S.App.D.C. 251, 19 P.U.R.3d 236
SOUTHWESTERN PUBLISHING COMPANY, Southwestern Radio andTelevision Company, Appellants,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee, AmericanTelevision Company, Inc., Intervenor.
No. 13456.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 17, 1957.Decided April 4, 1957.Petition for Rehearing Denied May 29, 1957.
[100 U.S.App.D.C. 252] Mr. J. Roger Wollenberg, Washington, D.C., with whom Mr. Andrew G. Haley, Washington, D.C., was on the brief, for appellants.
Mr. Richard A. Solomon, Asst. Gen. Counsel, Federal Communications Commission, with whom Messrs. Warren E. Baker, Gen. Counsel, Federal Communications Commission, Daniel R. Ohlbaum and John J. O'Malley, Jr., Counsel, Federal Communications Commission, were on the brief, for appellee.
Mrs. Arthur Scheiner, Washington, D.C., with whom Mr. Benedict P. Cottone, Washington, D.C., was on the brief, for intervenor.
Before EDGERTON, Chief Judge, and WILBUR K. MILLER and BAZELON, Circuit Judges.
BAZELON, Circuit Judge.
1
Appellants are Southwestern Publishing Company and its wholly-owned subsidiary, Southwestern Radio and Television Company, operator of a UHF television station at Fort Smith, Arkansas. Intervenor, American Television Company, holds a construction permit for a VHF television station in that city. An understanding of the controversy before us requires a short excursion into some background facts.
2
American applied for its construction permit on February 6, 1952. Several months later, a competing application was filed by one Hernreich. The two applications [100 U.S.App.D.C. 253] were set for comparative hearing but, before completion of the hearing, a 'merger' was effected whereby Hernreich received an option to buy from H. S. Nakdimen, sole stockholder of American, half of that company's stock. Hernreich took a dismissal of his application and, on June 3, 1954, the Commission granted American the construction permit.
3
Instead of commencing construction of the station, Nakdimen and Hernreich negotiated with the principals of appellants with respect to a possible assignment of the construction permit. Eventually an agreement was made whereby, conditioned upon Commission approval, American's construction permit would be assigned to Southwestern Publishing in return for certain payments to American, Nakdimen and Hernreich. On December 20, 1954, American and Southwestern Publishing jointly applied to the Commission for approval of the assignment.1 A week later, American applied for an extension of its construction permit, which at that time had only about a month to run.
4
In May 1955, the Commission set down both applications for hearing on the issue of possible 'trafficking' in the permit. On October 3, 1955, after hearing, the hearing examiner issued an initial decision looking toward grant of both applications. The assignment contract, which originally ran only to February 1, 1955, was repeatedly renewed, the last expiration date being April 1, 1956.
5
On December 20, 1955, the entire picture was changed by the death of Mr. Nakdimen. American and Hernreich refused any further extension of the assignment contract, apparently electing to proceed with construction on their own account. Southwestern Publishing, which had been content to seek an assignment from American when Nakdimen was its principal, now took the view that, with his death, American was no longer a qualified permittee. On April 10, 1956, American and Southwestern Publishing filed the petitions which are here involved. American's petition requested dismissal of the assignment application, immediate grant of an extension of its construction permit, and Commission consent to a transfer of control of American from Nakdimen to Mrs. Nakdimen as administratrix of his estate. Southwestern Publishing's petition agreed that the assignment was a dead letter, asking that the initial decision which had approved both the assignment and an extension of the construction permit be set aside. It further requested that the record be reopened for the taking of evidence as to American's present qualifications to construct and operate the station and that any petition for approval of transfer of control of American be consolidated for hearing with the extension application. If the extension of American's construction permit should be denied and the channel thrown open again, Southwestern Publishing proposed to file an application on its own account. Southwestern Publishing's petition alleged that Nakdimen had been the very heart of American's proposal in that he had not only been its sole stockholder, but had also embodied all of its broadcast experience, was to have been the general manager of the station and was to have obtained the necessary financing. Without Nakdimen, the petition alleged, it did not appear who in American could or would supervise the construction of the station or its operation, if constructed, and there was nothing to indicate the ability of his estate to finance the construction of the station.
6
On June 22, 1956, and July 3, 1956, the Commission released the two orders which are the subject of this appeal. In the June 22 order, the Commission ruled that (1) by reason of the expiration of the assignment contract, all the pleadings filed by Southwestern Publishing became moot and must therefore be rejected; (2) Southwestern Publishing [100 U.S.App.D.C. 254] had no standing as a party in interest when it filed its April 10 petition and all subsequent pleadings; and (3) the public interest, convenience and necessity would be served by granting an extension of American's construction permit. The July 3 order approved 'involuntary' transfer of control of Americal to Mrs. Nakdimen.
7
The Commission argues that its orders were proper and that, even if they were not, we have no jurisdiction to review them because the appellants lack standing to appeal.
8
We consider first the July 3 order which seems to us to present no great difficulty. The order was issued by the Chief of the Broadcast Bureau under a delegation of authority from the Commission. The transfer thus consented to was 'to a person or entity legally qualified to succeed to the foregoing interests under the laws of the place having jurisdiction over the estate involved.' 47 C.F.R. § 1.323, 1 Pike & Fischer Radio Reg. 51:214. The Commission's form No. 316 used in connection with such transfers is a short form application omitting many of the inquiries of the form used in applying for consent to a voluntary transfer of control. The action complained of is merely a temporary arrangement not involving ultimate disposition or control of the stock of the permittee.2 Even if appellants have standing to appeal, they do not show that this action was erroneously taken.
9
The June 22 order extending the construction permit is another matter. In extending the permit over Southwestern Publishing's objections and dismissing the latter's petition, the Commission gave no consideration to the substance of the objections. It concluded merely that, since the petition had been filed nine days after expiration of the assignment contract, Southwestern lacked standing as a party, even though it had not yet been dismissed from the proceeding at that time.
10
In view of the Commission's conclusion, we do not consider the validity or force of the substantive allegations of Southwestern Publishing's petition. That it was the Commission's duty to consider them, however, seems to us beyond question. Even granting that a party to a proceeding may, by change of circumstances, lose his status, he remains a party, with all the rights of a party to file pleadings, until the Commission dismisses him from the proceedings. The petition was, therefore, properly filed and its allegations were before the Commission. Even if the Commission thereafter dismissed Southwestern Publishing from the case, it should not close its eyes to the public interest factors raised by the petition already on file. In Clarksburg Publishing Co. v. Federal Communications Comm., 1955, 96 U.S.App.D.C. 211, 215, 225 F.2d 511, 515, dealing with § 309(c) of the Communications Act, 47 U.S.C. § 309(c), we said: 'The statute contemplates that, in appropriate cases, the Commission's inquiry will extend beyond matters alleged in the protest in order to reach any issue which may be relevant in determining the legality of the challenged grant.' The situation where the challenging allegations have been specifically brought to the Commission's attention by a party who is thereafter dismissed from the proceeding is an a fortiori case.
11
But is is argued that even if the Commission was wrong to close its eyes to those matters, we are powerless to correct the case because there is no appellant with standing to bring the error before us.
12
So far as the parent company, Southwestern Publishing, is concerned, the Commission argues that it is not a 'person who is aggrieved or whose interests are adversely affected by' the extension of the construction permit, within the meaning of § 402(b) of the Act, 47 U.S.C. § 402(b). There is no dispute that likelihood of economic injury confers [100 U.S.App.D.C. 255] a right of appeal under that section. federal communications comm. v. sanders Bros. Radio Station, 1940, 309 U.S. 470, 477, 60 S. Ct. 693, 84 L. Ed. 869; Elm City Broadcasting Corp. v. United States, 1956, 98 U.S.App.D.C. 314, 318, 235 F.2d 811, 815, and cases there cited. But the economic injury that may result from the Commission's action would be suffered directly by Southwestern Radio, the UHF licensee and wholly-owned subsidiary of Southwestern Publishing, and only derivatively by the parent. While the quantum of 'interest' or 'aggrievement' which a parent company must show to seek review of administrative action under such a statute as § 402(b) is not necessarily as great as it would need to show to maintain suit for an injury to its wholly-owned subsidiary, American Power & Light Co. v. Securities & Exchange Comm., 1945, 325 U.S. 385, 390-391, 65 S. Ct. 1254, 89 L. Ed. 1683; City of Pittsburgh v. Federal Power Domm., 1956, 99 U.S.App.D.C. 113, 237 F.2d 741, 746-748; Associated Industries v. Ickes, 2 Cir., 1943, 134 F.2d 694; Cf. Schenley Distillers Corp. v. United States, 1946, 326 U.S. 432, 66 S. Ct. 247, 90 L. Ed. 181, the merely derivative interest it has in its subsidiary's injury does not satisfy the standard. Cf. American Power & Light Co. v. Securities & Exchange Comm., supra. The Appeal of Southwestern Publishing must accordingly be dismissed.
13
There is no dispute that Southwestern Radio, the subsidiary, would have had standing to appeal if it had been a party below3 or if, though not a party below, it had petitioned for rehearing as provided by 47 U.S.C. § 405. Since it is the subsidiary company that would suffer the injury, the appropriate procedure would have been for that company, as soon as the assignment contract expired, to petition the Commission for leave to intervene to oppose the extension, or, within thirty days of the June 22 order, to petition for rehearing under 405. Such petitions, to be sure, would have been addressed to the discretion of the Commission4 and denial by the Commission could only be reversed for abuse of discretion. Coastal Bend Television Co. v. Federal Communications Comm., 1956, 98 U.S.App.D.C. 251, 255, 234 F.2d 686, 690; Kentucky Broadcasting Corp. v. Federal Communications Comm., 1949, 84 U.S.App.D.C. 383, 386-387, 174 F.2d 38, 41-42. But, in the circumstances of this case, the Commission could not, with proper regard for its duty to protect the public interest, have denied either of such petitions. Since, however, Southwestern Radio did not seek to become a party below and did not seek rehearing as a statutory condition precedent to invoking our jurisdiction, its appeal, like that of its parent, must be dismissed.
14
Appeals dismissed.
1
Southwestern Publishing informed the Commission that, if the assignment were approved, it would abandon the UHF station then being operated by its subsidiary
2
Form 316 states that it '* * * does not cover assignments (or transfers) from the Executor, Administrator or other court appointed officers to the ultimate beneficiary.'
3
Southwestern Radio and Television Company did not formally intervene in the proceedings before the Commission. It did, however, formally join as a signatory in its parent's April 27 response to American's petition and in the May reply to the oppositions which had been filed to Southwestern Publishing's petition. Appellants contend that the Commission failed to rule on whether or not Southwestern Radio was a party and completely disregarded the fact that it had signed two pleadings. We do not think the Commission was called upon to discuss the effect of what, in the absence of a petition to intervene, appeared to be merely gratuitous signatures
4
Intervention as of right by the subsidiary company was barred by the terms of 47 U.S.C. § 309(b) in June of 1955, such intervention being restricted to the time 'not less than ten days prior to the date of hearing.' A petition for rehearing, as well, is addressed to the Commission's discretion, 47 U.S.C. § 405 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1619345/ | 762 F.Supp. 404 (1991)
BAYSHORE GROUP LIMITED, Plaintiff,
v.
BAY SHORE SEAFOOD BROKERS, INC., Defendant.
Civ. A. No. 89-2862-WF.
United States District Court, D. Massachusetts.
March 1, 1991.
*405 *406 Laura L. Carroll, Widett, Slater & Goldman, Boston, Mass., for plaintiff.
Patrick Tracy, Boston, Mass., John F. Doyle, Arlington, Mass., for defendant.
ORDER
WOLF, District Judge.
As no objection has been filed to the Magistrate Judge's November 9, 1990 Report and Recommendation Re: Plaintiff's Application for a Preliminary Injunction and Request for Oral Argument, and the recommendation is in any event persuasive, plaintiff's motion for preliminary injunction is hereby DENIED.
This case is hereby referred to the Magistrate Judge for further pretrial proceedings.
REPORT AND RECOMMENDATION RE: PLAINTIFF'S APPLICATION FOR A PRELIMINARY INJUNCTION AND REQUEST FOR ORAL ARGUMENT (DOCKET ENTRY # 5)
November 9, 1990
BOWLER, United States Magistrate.
I. INTRODUCTION
This is an action brought by BAYSHORE GROUP LIMITED, a Massachusetts corporation engaged in marketing and selling various seafood products, against BAY SHORE SEAFOOD BROKERS, INC. ("BAY SHORE SEAFOOD BROKERS"), a competing Massachusetts corporation engaged in marketing and selling various seafood products and in brokering products.
Count I of the Verified Complaint (Docket Entry # 1) filed on December 8, 1989, alleges that plaintiff has used the trademark and name BAYSHORE since its incorporation in January of 1985 and registration with the United States Patent and Trademark Office on January 28, 1986 and subsequent registration in Massachusetts on September 23, 1988 in connection with the sale of frozen fish fillets and other frozen seafood products. (Id., ¶¶ 7, 8, 9). Plaintiff claims in Count I that defendant's use of the name BAY SHORE, under which the defendant manufactures, sells, and brokers *407 seafood products in Massachusetts and elsewhere in the United States, is almost identical and confusingly similar to the plaintiff's registered trademark BAYSHORE. (Id., ¶ 19). Plaintiff also claims in Count I that defendant's use of the name BAY SHORE in connection with the sale of seafood products is likely to cause confusion and mistake among actual and prospective purchasers and in fact has caused such confusion and mistake as well as diluted the strength of the plaintiff's mark in violation of 15 U.S.C. § 1114. (Id., ¶¶ 20, 21).
The remaining counts of plaintiff's Verified Complaint allege state and federal statutory and common law violations in connection with plaintiff's frozen seafood business. (Count II violation of Massachusetts Anti-Dilution Statute (Mass. Gen.L. ch. 110B, § 11); Count IV Common Law Trademark Infringement; Count V Common Law Unfair Competition). Plaintiff further alleges, in Count III, that defendant's have engaged in unfair and deceptive practices in violation of Mass. Gen.L. ch. 93A, §§ 2 and 11.
On March 20, 1990, plaintiff filed an application for a preliminary injunction to enjoin defendant from "manufacturing, selling or brokering seafood products under the name BAY SHORE or any other name confusingly similar to plaintiff's registered BAYSHORE trademark." (Docket Entry # 5 and # 1, p. 11).
Plaintiff's Application for a Preliminary Injunction and Request for Oral Argument (Docket Entry # 5) has been referred here for report and recommendation. (See Order of Reference, Undocketed). A hearing was held on September 26, 1990. The defendant called John Monahan, Jr., President of BAY SHORE SEAFOOD BROKERS, to testify in support of its argument against the injunction. After reviewing the testimony, the parties' arguments, memoranda, affidavits and supporting documentation, the court RECOMMENDS that plaintiff's application for preliminary injunction be DENIED.
II. FINDINGS OF FACT
A. Bayshore Group Limited
The BAYSHORE mark was created in 1981 by Woodman's Sea Products Ltd. ("Woodman's") and Budd O'Brien, co-owner of Bay Bulls Sea Products Ltd. ("Bay Bulls") in Newfoundland, in connection with the packaging and sale of frozen seafood products produced by the two companies. (Docket Entry # 7, ¶ 2 and # 17, ¶ 2). Higdon's Seafoods, Ltd. ("Higdon's") joined the two companies in 1982 in the use of the BAYSHORE brand for packaging its products. (Docket Entry # 17, ¶¶ 3 and 10). Canadian Saltfish Corporation ("CSC"), a Canadian corporation, marketed the BAYSHORE products in the United States and elsewhere, primarily through brokers located in Massachusetts. (Docket Entry # 7, ¶¶ 2; 3 and # 17, ¶ 4).
In mid-1983, Coastal Fisheries, Inc. ("Coastal") began acting as the United States marketing arm for CSC in connection with BAYSHORE products. (Docket Entry # 7, ¶ 7; # 17, ¶ 5). Coastal declared bankruptcy in mid-1984, and subsequently, BAYSHORE GROUP LIMITED was incorporated in January of 1985 by Higdon's, Woodman's and CSC. (Docket Entry # 7, ¶¶ 8; 9 and # 17, ¶¶ 7; 8). The affidavits submitted by the parties conflict on whether the right to use the BAYSHORE name remains under the control of Budd O'Brien, co-owner of Bay Bulls Sea Products Ltd., or whether it was transferred to Higdon's and Woodman's in 1984 when Coastal declared bankruptcy. (Docket Entry # 11, ¶ 8 and # 17, ¶ 9 and 11). Bay Bulls has, according to plaintiff, packed frozen seafood under brand names other than BAYSHORE since 1984. (Docket Entry # 17, ¶ 9).
BAYSHORE GROUP LIMITED applied to register the BAYSHORE trademark. Certificate of Registration no. 1,380,638 was issued by the Commissioner of Patents and Trademarks on January 28, 1986 for the use of the mark BAYSHORE in connection with its frozen fish business. (Docket Entry # 1, Exhibit B). The BAYSHORE trademark was also registered by BAYSHORE GROUP LIMITED in Massachusetts *408 on September 23, 1988, Certificate of Registration no. 41927, for use in connection with frozen seafood products. (Docket Entry # 17, ¶ 10; # 7, ¶ 18; # 1, Exhibit C). The plaintiff's mark, as registered in Massachusetts, consists of the word BAYSHORE printed three times accompanied by a distinctive logo. (Docket Entry # 1, Exhibit C). The Massachusetts Registration Certificate specifies that plaintiff uses the mark by applying it directly to the containers for the goods. (Id.).
Plaintiff also registered the BAYSHORE mark in Canada on December 2, 1988 and February 10, 1989, Certificate of Registration No. 348,697 and No. 351, 489 respectively for use in connection with frozen fish and shellfish products. (Docket Entry # 7, Exhibit 2).
BAYSHORE GROUP LIMITED is presently owned by four shareholders: Woodman's; Higdon's; Universal Multifoods Limited; and Universal Fisheries Limited. Woodman's and Higdon's are the primary shareholders. The shareholders are all Newfoundland seafood processors, and plaintiff acts as the exclusive U.S. marketing arm for those processors. (Docket Entry # 7, ¶ 10; 11). Plaintiff is engaged in marketing and selling frozen seafood products, including cod, turbot, perch, flounder, and crab meat under the BAYSHORE mark to food service distributors, restaurant chains, and wholesalers. (Id., ¶¶ 11; 12). Plaintiff sells directly to its customers across the United States and through brokers in Kentucky, Ohio, Michigan, New York, and Georgia. (Id., ¶ 13; 14). Plaintiff has approximately 100 customers, and continues to promote the BAYSHORE name and label through trade shows, industry conventions, and joint promotions.
B. Bay Shore Seafood Brokers, Inc.
BAY SHORE SEAFOOD BROKERS, INC. ("BAY SHORE SEAFOOD BROKERS") was incorporated under Mass. Gen.L. ch. 156B, § 12 in November of 1982. (Docket Entry # 11, ¶ 1). BAY SHORE SEAFOOD BROKERS is engaged in the business of brokering fresh and frozen seafood products for various manufacturers to wholesale and retail markets. BAY SHORE SEAFOOD BROKER's main customers are the hatcheries of Southern Pride Catfish and Clear Springs Trout. (Id., ¶¶ 2-3). A subsidiary of BAY SHORE SEAFOOD BROKERS, Yankee Specialty Foods, markets specialty clam chowders, soups and bisques under either the name BAY SHORE or BAY SHORE NEW ENGLAND. (Id., ¶ 4).
III. CONCLUSIONS OF LAW
Plaintiff, as the moving party seeking a preliminary injunction, must meet four criteria in order for the injunction to issue. The court must find: (1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury to the plaintiff outweighs any harm which granting injunctive relief would inflict on the defendants; (3) that plaintiff has demonstrated a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the issuance of the injunction. Vargas-Figueroa v. Saldana, 826 F.2d 160, 162 (1st Cir.1987).
This court will address plaintiff's request for a preliminary injunction based on this standard as applied to each claim for relief asserted in the plaintiff's complaint.
A. Trademark Infringement (15 U.S.C. § 1114 and Mass.Gen.L. ch. 110B, § 11)
The Lanham Act provides the controlling law for this action, because it involves issues concerning trademarks in interstate commerce. See Thrifty Rent-A-Car System, Inc. v. Thrift Cars, Inc., 639 F.Supp. 750, 754 (D.Mass.1986), aff'd, 831 F.2d 1177 (1st Cir.1987) (discussing application of federal statute). The Lanham Act requires a liberal interpretation of the irreparable injury factor, and considerable authority exists for the view that the irreparable injury factor is satisfied once the plaintiff demonstrates that the defendant is wrongly trading on the plaintiff's reputation. Camel Hair & Cashmere Institute of America, Inc. v. Associated Dry Goods Corp., 799 F.2d 6, 14 (1st Cir.1986) (hereinafter "Camel Hair").
*409 In actions arising out of the Lanham Act, "[t]he heart of this test is the second and third steps, which present the question whether the harm caused plaintiff without the injunction, in light of the plaintiff's likelihood of eventual success on the merits, outweighs the harm the injunction will cause defendants." Vargas-Figueroa v. Saldana, 826 F.2d at 162. This, therefore, turns to an examination of the four criteria for a preliminary injunction in the context of the facts of this case, commencing with consideration of the plaintiff's likelihood of success on the merits.
LIKELIHOOD OF SUCCESS ON THE MERITS
Title 15, Section 1114 of the United States Code provides in pertinent part:
[a]ny person who shall ...
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
(b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive,
shall be liable in a civil action by the registrant.
15 U.S.C. § 1114(1). The basis for an action under this section is the use of a mark in interstate commerce which is likely to cause confusion or to deceive purchasers concerning the origin of the goods or services.[1]Leather Smith of London, Ltd. v. Alleyn, 695 F.2d 27, 29 (1st Cir.1982); Quabaug Rubber Co. v. Fabiano Shoe Co., 567 F.2d 154, 160 (1st Cir.1977).
Under the federal trademark laws, "[i]n the preliminary injunction context, a showing of likelihood of confusion as to the source or sponsorship establishes the requisite likelihood of success on the merits as well as the risk of irreparable harm." Tetley, Inc. v. Topps Chewing Gum, Inc., 556 F.Supp. 785, 788 (E.D.N.Y. 1983) (citations omitted). Plaintiff is required to prove the following three elements to succeed in an infringement suit: (1) the ownership of a registered mark entitled to trademark protection; (2) the use of that name in interstate commerce; and (3) its use by another in a manner likely to cause confusion or mistake when compared with the plaintiff's registered mark. Railroad Salvage of Conn., Inc. v. Railroad Salvage, Inc., 561 F.Supp. 1014, 1019 (D.R. I.1983); see 15 U.S.C. § 1114. Here, defendant does not challenge plaintiff's contention that its use of the name BAY SHORE is in interstate commerce, but rather argues that the plaintiff has not shown ownership of a protected mark at the relevant time period and the existence of confusion, mistake or deceit. (See Docket Entry # 10, pp. 2-4). The court will address each of these arguments separately below.
(a). Ownership of Protected Mark
Plaintiff requests this court to enjoin defendant from using the words BAY and SHORE in connection with its business of selling and brokering seafood products, including frozen seafood fillets, in Massachusetts and elsewhere in the United States. (Docket Entry # 6, pp. 1-2).[2]
*410 As a preliminary matter, plaintiff alleges that BAYSHORE is a registered mark entitled to protection under the Lanham Act. The U.S. Patent and Trademark Office issued a certificate of registration for the plaintiff's mark, BAYSHORE, on January 26, 1986 and on September 23, 1988 the Massachusetts Trademark Office, issued a similar certificate, four and eight years, respectively, after the defendant incorporated in Massachusetts.
The defendant argues, in defense of the plaintiff's claim under the Lanham Act, that it is entitled to continue using the mark, because it was the first to use the words BAY and SHORE in connection with its line of seafood products in the Massachusetts area, despite the fact that the defendant never registered the mark. The defendant supports its argument by claiming that it incorporated in Massachusetts on November 24, 1982, and that the plaintiff did not incorporate in the Commonwealth until January of 1985.
As a basic hornbook principle of trademark law, it is clear that the plaintiff may not procure a preliminary injunction against the defendant's use of the mark and name under the Lanham Act unless it establishes the exclusive right to the BAYSHORE trademark. "The fact that plaintiff procured registration of its so-called trade-mark does not carry plaintiff over its difficulty because it is elementary that a trade-mark right is not acquired by registration. A right to trade-mark stems from prior appropriation and use." Tillamook County Creamery Ass'n v. Tillamook Cheese and Dairy Ass'n, 345 F.2d 158, 160 (9th Cir.1965).
"[T]he portion of the statute [Lanham Act] affording remedies such as are sought here, has limitations. 15 U.S.C. § 1114(1) provides for liability in a civil action of any person using a registered mark in commerce where such use is likely to cause confusion, or to cause mistake, or to deceive." Value House v. Phillips Mercantile Company, 523 F.2d 424, 429 (10th Cir. 1975).
In addition, "15 U.S.C.A. § 1115(b) affords a defense if the mark was adopted without knowledge of the registrant's prior use and has been continuously used from a date `prior to registration or publication of the registered mark ...' the defense being provided only for the area in which such continuous prior use is proved." Id. at 430 (citing Safeway Stores, Inc. v. Safeway Quality Foods, Inc., 433 F.2d 99, 103-04 (7th Cir.1970); Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838, 842-43 (9th Cir.1969). Title 15, Section 1115(b)(5) of the United States Code makes the prior use defense available "even against a plaintiff whose mark has become uncontestable [under 15 U.S.C. § 1065]." Id.; see 15 U.S.C. § 1065 (providing guideline for determination of whether mark is uncontestable). The parties in this action have not raised the issue of whether the mark is uncontestable.
Assuming for the moment that the name BAYSHORE meets the requirements of a valid trademark, it is clear that if the defendant first adopted, used, and acquired BAYSHORE as a trademark and it maintained that use, then the plaintiff's subsequent registration and use could not operate to deprive the defendant of use of the mark and name. Tillamook County Creamery Ass'n v. Tillamook Cheese and Dairy Ass'n, 345 F.2d at 161.
Although the history of the use of the BAYSHORE mark is less than crystal clear, it appears from the facts before this court that the plaintiff's predecessors actually designated, appropriated and used the word BAYSHORE in connection with the marketing of its frozen seafood products prior to 1982, when the defendant came into existence. Although the defendant argues that the right to the BAYSHORE name remains with Budd O'Brien and Bay Bulls, it has not shown any relation to Bay Bulls which would lead this court to the conclusion that the defendant or its predecessor, if one existed, appropriated and used the BAYSHORE name and mark prior to use by the plaintiff or its predecessor. The defendant did, however, appropriate and use the trademark prior to the plaintiff's incorporation and registration in Massachusetts.
*411 "The first to use a mark on a product or service in a particular geographic market, the senior user, acquires rights in the mark in that market ... Junior users, who subsequently use the same or similar mark on similar products or services, may also establish common law rights to perhaps even the same market provided there is no competitive overlap with the senior user ... The senior user, however, may enjoin such uses that infringe upon its prior rights." Tally-Ho, Inc. v. Coast Community College District, 889 F.2d 1018, 1023 (11th Cir.1989). While a registered mark has prima facie validity, it is subject to another's bona fide use of the same or similar mark under common law. "[A] federal registrant has the right to use the trademark in commerce `except to the extent that such use infringes what valid right the defendants have acquired by their continuous use of the same mark prior to plaintiff's federal registration.'" Natural Footwear Ltd. v. Hart, Schaffner & Marx, 760 F.2d 1383, 1395 (3rd Cir.1985) (citations omitted). "[O]nce the certificate has issued, no person can acquire any additional rights superior to those obtained by the federal registrant." Id. The plaintiff, as a federal registrant, is still subject to the defense of a prior user of the mark who has established a market in specific areas notwithstanding that senior user's failure to register. "It is this priority in time of trademark use, in commerce, which confers the quintessential right of exclusiveness and hence `ownership' upon the user." Modular Cinemas of America, Inc. v. Mini Cinemas Corp., 348 F.Supp. 578 (S.D. N.Y.1972).
Accordingly, this court is of the opinion that, in light of the plaintiff's predecessor's prior use of the mark in commerce, and plaintiff's registration of the mark, the plaintiff owns the mark BAYSHORE for use in connection with frozen seafood products. The defendant does, however, have the right to continue using the name and mark to the same extent that it was using the name and mark prior to the plaintiff's registration provided that the defendant can establish, under the common law rules of trademark infringement, that it: (1) adopted its mark in good faith, meaning without knowledge of prior use by a senior user; and (2) the mark of the senior user was not known to customers in that area. 2 McCarthy, Trademarks and Unfair Competition § 26:1 at 286-88 (2d ed. 1984); see Thrifty Rent-A-Car System, Inc. v. Thrift Cars, Inc., 639 F.Supp. at 755 (proof of prior use defense under the Lanham Act allows non-registrant junior user to raise common law defense with respect to area in which it used the contested mark before registration) (citing Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636, 640 (D.C.Cir. 1982)); see generally Steak & Brew, Inc. v. Beef & Brew Restaurant, Inc., 370 F.Supp. 1030 (1974); see also generally United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141 (1918) (superseded by statute as stated in Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636 (D.C.Cir.1982)); Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713 (1916) (superseded by statute as stated in Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636 (D.C.Cir.1982)).
Accordingly, to the extent that the defendant continuously marketed its goods under the name and mark in question in a specific area prior to the registration of the mark by the plaintiff, the defendant may clearly continue that use without the concern of infringing on plaintiff's goodwill invested in the registered name and mark. The defendant's use of that name and mark, as the junior user, is frozen by the plaintiff's registration. Thrifty Rent-A-Car System, Inc. v. Thrift Cars, Inc., 639 F.Supp. at 755-56. The dates of BAYSHORE GROUP LIMITED's federal and state trademark registration, therefore, are critical to the determination of the rights of the parties. See id. at 756.
Accordingly, the court concludes that although plaintiff may not prevail on any claim of exclusive right to use the name and mark BAYSHORE against the defendant to the extent that the defendants maintained an innocent, continuous prior use of the name at the time of the plaintiff's registration, this court finds that it is likely to succeed at trial in establishing *412 ownership of the BAYSHORE mark to the extent that defendant's business has expanded into any area covered by plaintiff's registration at a time subsequent to that registration. Although plaintiff argues that the defendant has expanded its business into areas that infringe upon the plaintiff's ownership of the BAYSHORE name and mark subsequent to registration of the trademark, plaintiff has failed to introduce any conclusive evidence of such an expansion.
(b). Likelihood of Confusion
The key element in any infringement action is the likelihood of confusion. Purolator, Inc. v. EFRA Distributors, Inc., 687 F.2d 554, 559 (1st Cir.1982). Under first circuit case law, this court must look to eight factors in assessing the likelihood of confusion: (1) the similarity of the marks; (2) the similarity of the goods or services; (3) the relationship between the parties' channels of trades; (4) the relationship between the parties' advertising; (5) the classes of prospective purchasers; (6) evidence of actual confusion; (7) the defendants' intent in adopting the mark; and (8) the strength of the mark. Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d 812, 817 (1st Cir.1987) (hereinafter "Volkswagenwerk").
(i). Similarity of the Marks
The similarity of the marks must be considered in light of what occurs in the marketplace and the circumstances of the purchase of the goods. Alpha Industries, Inc. v. Alpha Steel Tube & Shapes, Inc., 616 F.2d 440, 444 (9th Cir.1980). Both parties in this case use the words BAY and SHORE in their marks. The plaintiff uses the words together in the form BAYSHORE while the defendant maintains their use as two words. Marks less related in appearance and sound have been deemed confusingly similar. See Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d at 487 (discussing similarity of marks). Many differences exist, however, in the styles of the script used in the logos. The packaging of the products is also distinguishable. Although it is clear that similarity must be determined on the totality of the circumstances rather than a comparison of the specific attributes of each mark, the court concludes that the differences are not sufficiently distinctive such that they outweigh the vast similarities between the names and marks. Compare Pignons, where the court noted that although the word in question was the same in both marks, "the word ... always appears [in use by the defendant] with an equally prominent and uniquely identifying designation." Id. at 487. This is not the case here where the prominent words are BAY and SHORE in both names and marks.
(ii). Similarity of Goods
BAY SHORE GROUP LIMITED and BAYSHORE SEAFOOD BROKERS, INC. provide similar, although not identical products. Both are involved in almost exclusively seafood sales. Plaintiff sells frozen seafood fillets while defendant sells soups and chowders under the BAYSHORE label. According to testimony of the defendant, the soups and chowders are invoiced under the name Yankee Specialty Foods although they are packaged with the BAYSHORE label.[3] The defendant also uses the BAYSHORE name in its seafood brokerage business, which includes farm raised products such as trout and catfish as well as imitation crab meat. The brokerage business involves sales to retailers of the products of a third-party customer of the defendant under the third-party's label. The third-party customer and the retailer know the defendant to be operating under the name of BAY SHORE SEAFOOD BROKERS, INC. The ultimate retail customer, however, does not know of the relationship as the BAY SHORE name is not present on the product's label. Although the types of seafood involved in the parties' respective businesses differ, this court *413 finds that the products all involve some type of seafood, and are therefore considered similar products for the purposes of the motion in question.
(iii). The Relationship Between the Parties' Channels of Trade
(iv). The Relationship Between the Parties' Advertising
(v). The Classes of Prospective Purchasers
The issues presented by these three factors are closely related, and therefore, this court will examine them together. Plaintiff and defendant do not dispute the fact that they operate in the same or similar channels of trade. With respect to the parties' advertising, both participate in activities such as the Boston Seafood Show and both advertise in several publications. Defendant submits, however, that its customers are sophisticated, and therefore not easily confused. Defendant's customers are wholesalers and distributors in the seafood industry as opposed to the general public. In addition, defendant argues that it deals with its customers, which number less than twenty-five on a weekly basis, on a personal level, and that no potential for confusion exists.
"If the likelihood of confusion exists, it must be based on the confusion of some relevant person, i.e. a customer or purchaser." Astra Pharmaceutical Products, Inc. v. Beckman Instruments, Inc., 718 F.2d 1201, 1206 (1st Cir.1983). "Sophisticated consumers" are typically those consumers who would exercise greater care in purchasing the parties' services, and who would be less likely to be confused by the parties' advertising or similarities in services. Id. In the case in question, the defendant sells its products and services only to customers involved in the frozen seafood business. It does not sell directly to individual consumers. Thus, while the parties do operate in the same channels of trade, this court does not find, based on the sophistication of the customers, that the relevant classes of consumers would likely be confused by the parties' advertising and distribution of their respective products and services.
(vi). Evidence of Actual Confusion
Plaintiff need not demonstrate actual confusion to prevail on its claim of trademark infringement. Volkswagenwerk, 814 F.2d at 818. Such evidence is, however, very persuasive in determining the likelihood of confusion. McDonald's Corp. v. McBagel's Inc., 649 F.Supp. 1268, 1277 (S.D.N.Y.1986). Plaintiff has submitted, in its affidavit, that customers and prospective customers of the plaintiff have inquired about plaintiff's Boston "subsidiary" and further about plaintiff's line of chowders. (Docket Entry # 7, ¶ 29; 30). Plaintiff also submits that at least one trucking company invoiced the plaintiff for services rendered to the defendant. (Id. at ¶ 29). "In any event, a single misdirected communication is very weak evidence of consumer confusion." Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d at 490. The incidents raised by plaintiff, without additional evidence of confusion, are insufficient for this court to find actual confusion. Moreover, "absent evidence of actual confusion, when the marks have been in the same market side by side, for a substantial period of time, there is a strong presumption that there is little likelihood of confusion." Id. (citations omitted). As discussed above, the defendant has been marketing and brokering its products and services in the New England area since approximately late 1982. Eight years is a substantial amount of time, and the plaintiff's inability to introduce more evidence of actual confusion indicates that the defendant's use of the name and mark BAY SHORE has not resulted in a likelihood of confusion. Accord, id. at 490-91.
(vii). Defendant's Intent in Adopting the Mark
"Plaintiff argues that the facts surrounding defendant's use of the BAY SHORE name support the inference that defendant was ... [attempting to reap the benefits of] the goodwill associated with plaintiff's BAYSHORE mark." (Docket *414 Entry # 6, p. 12) (emphasis added). The defendant refutes this argument, claiming that it incorporated in Massachusetts in 1982, almost two years prior to the plaintiff's incorporation and six years prior to registration of the mark by the plaintiff. The defendant further argues that it did not act willfully in an attempt to usurp the goodwill of plaintiff's business. Defendant also submitted that the words BAY and SHORE are widely used in the seafood industry. See Clairol, Inc. v. Cosmair, Inc., 592 F.Supp. 811, 816 (S.D.N.Y.1984) (contention that use of SUMMER SUN as a mark for hair lightener was an attempt to imitate term SUMMER BLONDE without merit in light of wide use of terms SUMMER and SUN in cosmetics industry).
In light of the fact that the parties' marks are not identical and given the wide use of the terms BAY and SHORE in the seafood industry, the court refrains, on the testimony and evidence submitted, from making a finding of bad faith on the part of the defendant.
(viii). Strength of Plaintiff's Mark
Three factors are used to determine the strength of a mark: the length of time it has been in use; the strength of mark in plaintiff's field; and the plaintiff's actions in promoting the mark. Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d at 491. Under the Lanham Act, such registration is "prima facie evidence of registrant's exclusive right to use the registered mark in commerce on the goods or services specified in the registration." 15 U.S.C. § 1115(a). This means that at trial the burden of proof will shift from plaintiff, which in a common law infringement action would have to establish its right to exclusive use, to defendants, who must introduce sufficient evidence to rebut the presumption of plaintiff's right to such use. Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366, 373 (1st Cir.1980). The presumption may be overcome by proof that the registered mark is generic or merely descriptive without secondary meaning. Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th Cir.1986).
Here, defendants point to the fact that several other seafood businesses in the Boston area have used the word BAY in their names to dispute the strength of the plaintiff's mark. (Docket Entry # 10, p. 9). It is proper, in determining whether a particular word has a descriptive or suggestive significance in a field, to take notice of the extent to which it has been used in trademarks by others in the same field. Id. at 62607.
The defendant did not, however, submit any actual evidence at the hearing or in its memoranda of specific examples of third party usage of the words BAY and SHORE in the names of businesses in the seafood industry. In addition, plaintiff submits that it has spent considerable effort and money on advertising and promoting the BAYSHORE name. Although the plaintiff's mark may not be inherently strong, as the words BAY and SHORE when used in connection with a seafood business do not require much, if any, imagination on the part of the consumer to realize that the enterprise is involved in the seafood business, the factors now before this court, in particular, the existence of the registration of the plaintiff's mark leads this court to the conclusion that, at least for the present purposes, BAYSHORE is a relatively strong mark.
Notwithstanding the strength of the plaintiff's mark, based on a consideration of the above enumerated factors, this court concludes that the plaintiff has not presented sufficient evidence to demonstrate that it is likely to prevail on the merits in establishing a likelihood of confusion due to the defendant's use of the mark BAY SHORE. In light of that conclusion and the absence of evidence indicating that the defendant's business has expanded into areas infringing on the plaintiff's business, this court finds that plaintiff has not established that it is likely to succeed on the merits of its claim under 15 U.S.C. § 1114.[4]*415 The most important factor in that finding is the plaintiff's failure to demonstrate a likelihood of confusion among potential customers.
B. Unfair Competition
In Count V of its Verified Complaint (Docket Entry # 1), plaintiff claims that defendant's use of the BAY SHORE name and mark constitutes common law unfair competition. Similar to a claim under the Lanham Act, a claim under that common law theory requires a finding of likelihood of confusion. As discussed above, this court does not find that the plaintiff has demonstrated the existence of a likelihood of confusion among potential consumers. Accordingly, this court does not find that plaintiff is likely to succeed on its claim of common law unfair competition. See Kazmaier v. Wooten, 761 F.2d 46, 52 (1st Cir.1985) (discussing claim of unfair competition); see also United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141 (1918) (superseded by statute as stated in Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636 (D.C.Cir.1982)) (discussing common law unfair competition); Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713 (1916) (superseded by statute as stated in Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636 (D.C.Cir.1982)) (reviewing common law infringement).
C. Violation of Mass.Gen.L. ch. 93A, §§ 2 and 11
The final claim asserted by the plaintiff concerns the violation of Mass.Gen.L. ch. 93A, §§ 2 and 11. In supporting its request for a preliminary injunction under this claim, plaintiff argues that both trademark infringement and unfair competition constitute unfair and deceptive trade practices under this statute. In light of the fact that this court has not found a likelihood of confusion among the potential customers of the parties, this court cannot state that plaintiff is likely to succeed on the merits of its claim under Mass.Gen.L. ch. 93A, §§ 2 and 11.
D. Consideration of Other Factors Necessary to Implement a Preliminary Injunction
In order to recommend the issuance of a preliminary injunction, this court would have to conclude that plaintiff will suffer irreparable injury if the injunction is not granted; that the injury to the plaintiff outweighs any harm that may result to the defendant if the injunction is granted; that the public interest will not be adversely affected by issuance of the injunction; AND that plaintiff is likely to succeed on the merits.
Even turning to the second prong of the standard for implementation of a preliminary injunction and assuming the existence of sufficiently serious questions going to the merits of this dispute, this court is unable to determine that the balance of hardships weighs decidedly in the plaintiff's favor. There is no evidence in the record of actual or imminent injury to the plaintiff's business in terms of loss of revenues or clients as a result of defendant's activities. On the contrary, the evidence suggests that plaintiff's business is thriving. The plaintiff relies on the law in the first circuit which permits the plaintiff to demonstrate irreparable harm in the absence of evidence of actual injury based on the demonstration of a likelihood of success on the merits on a claim of trademark infringement. Camel Hair & Cashmere Institute of America, Inc. v. Associated Dry Goods Corp., 799 F.2d at 14. Plaintiff, in this case has failed, however, to establish either a likelihood of success on the merits or the existence of actual injury to its reputation or business. In contradistinction, the defendant has asserted that it will be harmed if the injunction does issue, because it will be unable to operate under its incorporated name upon which it has spent almost eight years building a strong *416 reputation. In addition, the public interest in this case does not support the imposition of a preliminary injunction where the plaintiff has not exhibited a likelihood of success on the merits, and where the relevant customer is not the general public, but is a wholesaler, distributor or a member of the restaurant industry. In light of this court's finding that the plaintiff has not demonstrated a likelihood of success on the merits of its claims, it is not necessary for this court to reach consideration of the remaining three criteria under the standard for issuance of a preliminary injunction.
IV. RECOMMENDED RELIEF
Plaintiff requests that the court "enter a preliminary injunction ... that defendant, its officers, employees, and other agents shall refrain from manufacturing, selling or brokering seafood products under the name BAY SHORE or any other name confusingly similar to plaintiff's registered BAYSHORE trademark." (Docket Entry # 1, ¶ 42(1)). After examining the criteria necessary for the issuance of a preliminary injunction, and in particular, because this court has not found that plaintiff has satisfactorily demonstrated a likelihood of success on the merits based on the failure to demonstrate a likelihood of confusion among the relevant customers, this court RECOMMENDS[5] that plaintiff's request be DENIED.
NOTES
[1] The basis for an action under Mass.Gen.L. ch. 110B, § 11 is essentially the same as that under the Lanham Act with the exception of the interstate commerce requirement. See Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 486 (1st Cir.1981) (comparing Lanham Act with Mass. statute); Mass.Gen.L. ch. 110B, § 11.
[2] At the hearing held on September 26, 1990, plaintiff's counsel stated that it is primarily concerned with the use of the words BAY and SHORE in connection with the sale of frozen seafood products, but that "it could live with" the defendant's use of the name BAY SHORE on sauces and soups provided that the defendant uses the name Yankee Specialty Foods on the invoices.
[3] This court further notes at this juncture the representation by the plaintiff at the hearing on this matter that it "could live with" plaintiff's use of the BAY SHORE label on the soups and chowders provided that the defendant does not invoice those products under the BAY SHORE name.
[4] As discussed above, the plaintiff's claim under Mass.Gen.L. ch. 110B, § 11 requires essentially the same findings as the claim under the Lanham Act in order for this court to determine that plaintiff will likely succeed on the merits of its claim. Accordingly, this court concludes that plaintiff has also not presented sufficient evidence to demonstrate that it is likely to succeed on a claim under that statute.
[5] Any objections to this Report and Recommendation must be filed with the Clerk of Court within ten days of receipt of the Report and Recommendation and must identify the portion of the Report and Recommendation to which objection is made and the basis for such objection. Any party may respond to another party's objections within ten days after service of the objections. Failure to file objections within the specified time waives the right to appeal the district court's order. United States v. Escoboza Vega, 678 F.2d 376, 378-79 (1st Cir.1982); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/98271/ | 235 U.S. 37 (1914)
MISSOURI, KANSAS AND TEXAS RAILWAY COMPANY
v.
UNITED STATES.
No. 25.
Supreme Court of United States.
Argued October 28, 29, 1914.
Decided November 9, 1914.
APPEAL FROM THE COURT OF CLAIMS.
*38 Mr. H.S. Priest and Mr. Joseph M. Bryson, with whom Mr. A.B. Browne, Mr. C.L. Jackson, Mr. W.W. Brown and Mr. Alexander Britton were on the brief, for appellant.
The Solicitor General and Mr. Assistant Attorney General Thompson for the United States.
MR. JUSTICE HOLMES delivered the opinion of the court.
This claim, as construed by the claimant and appellant is based upon covenants supposed to be imported by an act of Congress of July 25, 1866, c. 241, § 9. 14 Stat. 236. Upon demurrer it was dismissed by the Court of Claims. 47 C. Cl. 59. The largeness of the demand tends to induce a correspondingly voluminous statement, but the issue really is narrow and the material facts are few.
The United States had made land grants to the great roads running east and west but had not provided for a connection between those roads and the Gulf, through Kansas and the Indian Territory to the south. To that end, the act of July 25, 1866, after granting to Kansas, for the use of a road to be built through eastern Kansas from the eastern terminus of the Union Pacific between Kansas and Missouri, ten alternate sections per mile on each side of the road, § 1, authorized the company mentioned to extend its road from the southern boundary of Kansas south, through the Indian Territory to Red River, at or near Preston, in Texas, so as to connect with a road then being constructed from Galveston to that point. Section 8. The appellant also had been authorized by charter to build a road running southerly from a point on the Union Pacific to where the southern boundary of Kansas crosses the Neosho River, and had acquired a land grant; and the act of July 25, 1866, went on to provide that if the appellant, under its former name of Union *39 Pacific Railway, Southern Branch, first completed its road to the point of crossing the southern boundary of Kansas, it should be authorized to construct its line to the point near Preston, "with grants of land according to the provisions of this act." The right of way was granted in accordance with treaties with the Indians and is not in question here.
The appellant finished its road first, built the southern extension and acquired the rights to land under the act of 1866, and the question is what rights it has, in the event that has happened, under § 9. That section enacted "That the same grants of lands through said Indian Territory are hereby made as provided in the first section of this act, whenever the Indian title shall be extinguished by treaty or otherwise, not to exceed the ratio per mile granted in the first section of this act; Provided, That said lands become a part of the public lands of the United States." This part of the Indian Territory was occupied by the five civilized tribes, and what has happened is that under acts of Congress the land concerned has been distributed in severalty to the members of those tribes or sold for their benefit.
Taken literally the grant or covenant of the United States was subject to two conditions precedent. `Whenever the Indian title shall be extinguished' means when and not until that occurs, and contemplates it as something that may or may not come to pass. The proviso attaches the further condition that if the Indian title shall be extinguished it must be extinguished in such a way that the lands become a part of the public domain. It cannot be said that `whenever' imports that sooner or later the Indian title will and shall be disposed of. The Indians had to be considered and it could not be assumed that they would be removed to another place, as they had been removed before. It cannot be said, either, that on the face of the clause the proviso adds nothing and means *40 only that on extinction of the Indian title the rights of the railroad shall attach as if the land were public land. The section taken by itself and on its face excludes the claimant's interpretation that the United States made an absolute promise or grant, and it excludes it none the less that certain services were to be rendered by the road to the United States as one of the terms of the grant of a right of way which the railroad got. On this literal reading of the statute the conditions have not been fulfilled. The land has remained continuously appropriated to the use of the Indians or has been sold for their benefit. It never for a moment has become a part of the public domain in the ordinary sense. Newhall v. Sanger, 92 U.S. 761, 763. Union Pacific R.R. Co. v. Harris, 215 U.S. 386, 388. It is argued that the grant attached the moment that the tribal title ceased, whatever it was. But, still looking only at the face of the act and seeing the intent to respect the Indian rights, we cannot read it as preventing the United States from making the change from tribal to several possession or dealing with this land in any way deemed most beneficial for those whose rights were treated as paramount. The proviso that the land must become public land shows that a mere change from tribal title was not enough. Taken literally the grant only applied in case the Indians were removed or bought off the land.
The facts existing at the time confirm the literal interpretation of the act. Less than a week before the passage of the statute the United States had made a treaty with the Cherokees that contemplated the possible allotment of their share in this land to be held in severalty. Treaty of July 19, 1866, Art. 16, 14 Stat. 799, 804. On June 14, 1866, it had agreed with the Creeks that their lands should be forever set apart as a home for the Nation. 14 Stat. 785. And by a treaty of April 28, 1866, Art. 11, it had agreed with the Choctaws and Chickasaws that *41 they might have their lands surveyed and divided up, reciting that it was believed that the holding of the land in severalty would promote the general civilization of said Nation. 14 Stat. 769, 774. Whether or not, as the Government contends, the title of these tribes to the land in controversy was higher than the original possessory right, the United States, as the appellant must be taken to have known, just before its covenant with the railroad, had been holding out to the Indians the desirableness and possibility of dividing up their lands into individual holdings; and it would be to accuse the Government of bad faith to one party or the other to suggest that it forthwith agreed with the appellant that the moment such a division and allotment took place the appellant thereby should acquire a paramount title and render the allotment vain. See further Kansas v. United States, 204 U.S. 331, 341, 342.
The action of Congress in making the allotment to individuals shows in express terms that it did not suppose that the railroads would, or intend that they should, acquire any new rights. Act of March 1, 1901, c. 676, § 23; 31 Stat. 861, 867. July 1, 1902, c. 1362; 32 Stat. 641. July 1, 1902, c. 1375; 32 Stat. 716. April 26, 1906, c. 1876, § 27; 34 Stat. 137, 148. Our conclusion from the words of the statute and the circumstances seems to us too plain to require a reference to the rule of strict construction against the grantee of the Government in case of doubt, and seems to us unaffected by the argument that a grant in praesenti was made by § 9. It appears to us that the appellant's claim stands most strongly if based upon a covenant but, covenant or grant, the concession of the United States was dependent upon conditions that have not been fulfilled.
Judgment affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/197145/ | UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 96-1206
THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO, ET AL.,
Plaintiffs, Appellants,
v.
WINSHIP GREEN NURSING CENTER, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Selya, Circuit Judge,
Torres* and Saris,** District Judges.
Mark Schneider, with whom John M. West and Bredhoff &
Kaiser, P.L.L.C. were on brief, for appellants.
Richard L. O'Meara, with whom Charles P. Piacentini, Jr. and
Murray, Plumb & Murray were on brief, for appellees.
December 30, 1996
*Of the District of Rhode Island, sitting by designation.
**Of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. In this eccentric case, the
SELYA, Circuit Judge.
International Association of Machinists and Aerospace Workers
(IAM or Union) charged an employer, Winship Green Nursing Center
(Winship), with violating the Lanham Act, 15 U.S.C. 1051-1127
(1994), through its unauthorized use of a service mark on
propaganda disseminated during a union organizing campaign.1 The
district court granted Winship's motion for brevis disposition,
reasoning that the Union's claim failed to satisfy the Lanham
Act's jurisdictional requirements because (1) the parties were
not competing for the sale of commercial services, and (2)
Winship's admittedly unauthorized use of the mark was in
connection with services offered by the markholder rather than
services offered by the infringer. See International Ass'n of
Machinists v. Winship Green Nursing Ctr., 914 F. Supp. 651, 655-
56 (D. Me. 1996). The Union appeals. We affirm, albeit on a
different ground.
I. BACKGROUND
I. BACKGROUND
We present the basic facts in the light most flattering
to the party vanquished by summary judgment. All the relevant
events occurred in 1994, and all dates refer to that year.
A
A
In May the Union mounted a campaign to organize the
1An IAM official, Dale Hartford, is also a plaintiff, and
two affiliates of Winship (Hillhaven Corp. and First Healthcare
Corp.) are codefendants. Since the presence of these additional
parties does not affect the issues on appeal, we treat the
litigation as if it involved only the Union (as plaintiff-
appellant) and Winship (as defendant-appellee).
2
nonprofessional employees at Winship's facility in Bath, Maine.
Not surprisingly, management resisted this initiative and
exhorted the affected employees to vote against IAM's election as
a collective bargaining representative. As part of its retort
Winship hand-delivered two pieces of campaign literature to
employees in the putative bargaining unit. These handouts form
the basis for IAM's lawsuit.
1. The First Flier. In July Winship distributed a
1. The First Flier.
three-page flier, the first page of which asks rhetorically:
WHAT WOULD YOU DO IF YOU GOT THE ATTACHED
LETTERS?
WOULD YOU BE ABLE TO FIND ANOTHER JOB?
HOW WOULD YOU PAY YOUR BILLS?
WOULD YOU WISH THAT THE MACHINISTS UNION HAD
NEVER GOTTEN IN AT WINSHIP GREEN?
The flier then advises recipients that "IT'S NOT TOO LATE" and
implores them to "GIVE [certain named managers] A CHANCE" by
"VOT[ING] NO ON AUGUST 4." The letters, addressed individually
to particular employees and dated one year after the scheduled
election, comprise the second and third pages of the flier. One
letter purports to be written on the Union's letterhead, complete
with a reproduction of the IAM service mark (consisting of a set
of machinist's tools surrounded by a gear and the IAM name)2 and
the facsimile signature of an IAM plenipotentiary, Dale Hartford.
2Service marks and trademarks function to identify the
source of services and goods, respectively. The difference
between the two types of marks is not relevant here, and thus we
will apply case law involving either form. See Star Fin. Servs.,
Inc. v. AASTAR Mortgage Corp., 89 F.3d 5, 8 n.1 (1st Cir. 1996);
Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d 812, 815
n.1 (1st Cir. 1987).
3
This missive suggests that the Union had notified Winship of its
obligation, pursuant to an invented collective bargaining
agreement, to terminate the recipient's employment because of her
failure to pay certain assessments (e.g., union dues and an
initiation fee). The other epistle, signed by Winship's director
of operations, is also postdated. It acknowledges Winship's
receipt of the notice and professes to inform the addressee that
the company must honor the Union's request.
2. The Second Flier. The remaining piece of campaign
2. The Second Flier.
literature, disseminated by Winship a few days before the
election, urges the reader to vote against unionization and warns
that union membership will bring significant financial burdens.
This flier contains a simulated invoice inscribed on what
purports to be IAM's letterhead (and which bears the IAM service
mark). Under a heading that reads "PAYABLE TO THE MACHINISTS
UNION BY [employee's name]", the invoice lists amounts designated
as union dues, an initiation fee, and fines.3 Commentary,
undiluted by subtlety, accompanies this listing: "NO MATTER WHAT
THE UNION HAS TOLD YOU JUST ASK THE EMPLOYEES AT LOURDES
HOSPITAL" AND "JUST ASK THE 13 EMPLOYEES AT GENERAL ELECTRIC IN
SOUTH PORTLAND WHO WERE FINED FOR CROSSING THE PICKET LINE
THERE." Large, bold letters at the bottom of the invoice
proclaim: "WITHOUT THE MACHINISTS UNION, DO NOT PAY THIS BILL."
3The stated amounts are not only apocryphal but also
extravagant. During the organizing drive, IAM repeatedly
declared that there would be no initiation fee and that no
worker's monthly dues would exceed $20.
4
Notwithstanding Winship's tactics or, perhaps, due to
them the employees chose IAM as their collective bargaining
representative in the August 4 election.
B
B
The Union proved to be a sore winner. It soon filed
suit against Winship alleging inter alia trademark infringement
and unfair competition under the Lanham Act.4 The Union premised
its federal claims on the theory that Winship's unauthorized use
of the registered service mark occurred "in connection with . . .
services," namely, IAM's representational services, and thereby
transgressed sections 32(1) and 43(a) of the Lanham Act. See 15
U.S.C. 1114(1)(a) & 1125(a) (quoted infra note 5). The
district court rejected this theory for the reasons previously
mentioned. See IAM, 914 F. Supp. at 655-56. This appeal
followed.
II. THE SUMMARY JUDGMENT STANDARD
II. THE SUMMARY JUDGMENT STANDARD
Though the case is unconventional, the generic legal
standard that we must apply is prosaic. Summary judgment is
appropriate in trademark infringement cases, as elsewhere, "if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
4IAM's complaint also embodied a salmagundi of pendent
state-law claims. The district court dismissed these claims
without prejudice coincident with the entry of summary judgment
on the federal claims. See IAM, 914 F. Supp. at 656. We
understand that the Union is pursuing these claims in a separate
state court action. Finally, the complaint sought injunctive
relief under the Norris-LaGuardia Act, 29 U.S.C. 101-115
(1994), but the Union now concedes the infirmity of this request.
5
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Boston Athletic Ass'n v. Sullivan, 867 F.2d 22, 24 (1st Cir.
1989) (quoting Fed. R. Civ. P. 56(c)). Generally speaking, a
fact is "material" if it potentially affects the outcome of the
suit, see Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.
1990), and a dispute over it is "genuine" if the parties'
positions on the issue are supported by conflicting evidence, see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). While
an inquiring court is constrained to examine the record in the
light most favorable to the summary judgment opponent and to
resolve all reasonable inferences in that party's favor, see
Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir. 1996), defeating a
properly documented motion for summary judgment requires more
than the jingoistic brandishing of a cardboard sword. This is
especially true in respect to claims or issues on which the
nonmovant bears the burden of proof; in such circumstances she
"must reliably demonstrate that specific facts sufficient to
create an authentic dispute exist." Garside, 895 F.2d at 48; see
also Anderson, 477 U.S. at 256.
We review de novo the district court's grant of summary
judgment. See Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179,
181 (1st Cir. 1989). Moreover, an appellate tribunal is not
bound by the lower court's rationale but may affirm the entry of
judgment on any independent ground rooted in the record. See,
e.g., Hachikian, 96 F.3d at 504; Garside, 895 F.2d at 49.
6
III. ANALYSIS
III. ANALYSIS
Our analysis proceeds in five parts.
A
A
Trademark infringement and unfair competition laws
exist largely to protect the public from confusion anent the
actual source of goods or services. See, e.g., Star Fin. Servs.,
Inc. v. AASTAR Mortgage Corp., 89 F.3d 5, 9 (1st Cir. 1996);
DeCosta v. Viacom Int'l, Inc., 981 F.2d 602, 605 (1st Cir. 1992),
cert. denied, 509 U.S. 923 (1993); 3 J. Thomas McCarthy, McCarthy
on Trademarks and Unfair Competition 23.01 (3d ed. 1996). The
Lanham Act is cast in this mold. Generally speaking, the Act
proscribes the unauthorized use of a service mark when the
particular usage causes a likelihood of confusion with respect to
the identity of the service provider.5 See WCVB-TV v. Boston
5Section 32(1) of the Lanham Act governs infringement
claims. It stipulates in pertinent part:
Any person who shall, without the
consent of the registrant
(a) use in commerce any
reproduction, counterfeit, copy, or
colorable imitation of a registered
mark in connection with the sale,
offering for sale, distribution, or
advertising of any goods or
services on or in connection with
which such use is likely to cause
confusion, or to cause mistake, or
to deceive; . . .
shall be liable in a civil action
by the registrant . . . .
15 U.S.C. 1114(1) (emphasis supplied). Section 43(a) governs
unfair competition claims. It stipulates in pertinent part:
Any person who, on or in connection with any
7
Athletic Ass'n, 926 F.2d 42, 44 (1st Cir. 1991); see also Societe
des Produits Nestle, S.A. v. Casa Helvetia, Inc., 982 F.2d 633,
641 (1st Cir. 1992) (explaining in respect to trademarks that
"only those appropriations . . . likely to cause confusion are
prohibited"). Consequently, likelihood of confusion often is the
dispositive inquiry in a Lanham Act case. See, e.g., WCVB-TV,
926 F.2d at 44; Pignons S.A. de Mecanique de Precision v.
Polaroid Corp., 657 F.2d 482, 492 (1st Cir. 1981). So it is
here.
B
B
To demonstrate likelihood of confusion a markholder (or
one claiming by, through, or under her) must show more than the
theoretical possibility of confusion. See American Steel
Foundries v. Robertson, 269 U.S. 372, 382 (1926) (requiring
probable confusion); Star, 89 F.3d at 10 (requiring evidence of a
substantial likelihood of confusion); accord 3 McCarthy, supra,
23.01[3][a]. Just as one tree does not constitute a forest, an
goods or services, . . . uses in commerce any
word, term, name, symbol, or device . . . or
any false designation of origin . . . which
(A) is likely to cause confusion,
or to cause mistake, or to deceive
as to . . . the origin,
sponsorship, or approval of [such
person's] goods, services, or
commercial activities by another
person . . .
shall be liable in a civil action by any
person who believes that he or she is or is
likely to be damaged by such an act.
15 U.S.C. 1125(a) (emphasis supplied).
8
isolated instance of confusion does not prove probable confusion.
To the contrary, the law has long demanded a showing that the
allegedly infringing conduct carries with it a likelihood of
confounding an appreciable number of reasonably prudent
purchasers exercising ordinary care. See McLean v. Fleming, 96
U.S. 245, 251 (1877); Mushroom Makers, Inc. v. R.G. Barry Corp.,
580 F.2d 44, 47 (2d Cir. 1978), cert. denied, 439 U.S. 1116
(1979); Coca-Cola Co. v. Snow Crest Beverages, Inc., 162 F.2d
280, 284 (1st Cir.), cert. denied, 332 U.S. 809 (1947). This
means, of course, that confusion resulting from the consuming
public's carelessness, indifference, or ennui will not suffice.
See, e.g., United States v. 88 Cases, More or Less, Containing
Bireley's Orange Beverage, 187 F.2d 967, 971 (3d Cir.) (inferring
that "the legislature contemplated the reaction of the ordinary
person who is neither savant nor dolt, [and] who . . . exercises
a normal measure of the layman's common sense and judgment"),
cert. denied, 342 U.S. 861 (1951); see also Indianapolis Colts,
Inc. v. Metropolitan Baltimore Football Club Ltd., 34 F.3d 410,
414 (7th Cir. 1994) (explaining that the Lanham Act does not
"protect the most gullible fringe of the consuming public").
We typically consider eight factors in assessing
likelihood of confusion: (1) the similarity of the marks; (2)
the similarity of the goods (or, in a service mark case, the
services); (3) the relationship between the parties' channels of
trade; (4) the juxtaposition of their advertising; (5) the
classes of prospective purchasers; (6) the evidence of actual
9
confusion; (7) the defendant's intent in adopting its allegedly
infringing mark; and (8) the strength of the plaintiff's mark.
See Star, 89 F.3d at 10; Sullivan, 867 F.2d at 29. While this
compendium does not conform easily to the peculiar facts of this
case, it is not intended to be either all-encompassing or
exclusive. See DeCosta v. CBS, Inc., 520 F.2d 499, 513-14 (1st
Cir. 1975), cert. denied, 423 U.S. 1073 (1976). The listed
factors are meant to be used as guides. See Astra Pharmaceutical
Prods., Inc. v. Beckman Instruments, Inc., 718 F.2d 1201, 1205
(1st Cir. 1983). No one listed factor is determinative, and any
other factor that has a tendency to influence the impression
conveyed to prospective purchasers by the allegedly infringing
conduct may be weighed by the judge or jury in gauging the
likelihood of confusion. We completely agree with the authors of
the Restatement that "[n]o mechanistic formula or list can set
forth in advance the variety of factors that may contribute to
the particular marketing context of an actor's use." Restatement
(Third) of Unfair Competition 21 cmt. a (1995).
Two related points are worth making. First, because
the listed factors must be evaluated in context, any meaningful
inquiry into the likelihood of confusion necessarily must
replicate the circumstances in which the ordinary consumer
actually confronts (or probably will confront) the conflicting
mark. See, e.g., Libman Co. v. Vining Indus., Inc., 69 F.3d
1360, 1362 (7th Cir. 1995), cert. denied, 116 S. Ct. 1878 (1996);
Black Dog Tavern Co. v. Hall, 823 F. Supp. 48, 55 (D. Mass.
10
1993). Second, Rule 56 places a special gloss upon the usual
analytic approach. On summary judgment the reviewing court must
decide whether the evidence as a whole, taken most hospitably to
the markholder, generates a triable issue as to likelihood of
confusion. See Sullivan, 867 F.2d at 29; Astra, 718 F.2d at
1205; see also 3 McCarthy, supra, 23.11 (observing that, while
legal precedent governs the analysis, the result of each case is
controlled by the totality of its facts).
Applying these principles, we conclude that the Union
bears the burden here of adducing "significantly probative"
evidence, Anderson, 477 U.S. at 249-50 (citation omitted),
tending to show that an appreciable number of prospective voters
(i.e., employees within the defined bargaining unit) were in fact
likely to be confused or misled into believing that the service-
marked campaign literature was produced, sent, or authorized by
IAM. The Union has not reached this plateau.
C
C
As we set the scene for the main thrust of our
analysis, we acknowledge that the campaign stump is an odd stage
for playing out a Lanham Act drama. In the typical commercial
setting, confusion as to the source of goods or services occurs
when there is an unacceptably high risk that a buyer may purchase
one product or service in the mistaken belief that she is buying
a different product or service. See, e.g., Star, 89 F.3d at 9.
But the instant case is well off the beaten track. It does not
involve two entrepreneurs vying to sell competing products or
11
services in the traditional sense. Rather, IAM was angling to
represent the workers and, although Winship opposed that effort,
it was neither offering nor seeking to provide a similar service.
In the vernacular of the marketplace, IAM was "selling" its
services to prospective union members and Winship was "selling" a
negative the lack of a need for any such services or service-
provider.
This twist has significant implications for a court's
assessment of the likelihood of confusion. If we assume,
favorably to the Union, that confusion as to the source of the
documents bearing the IAM service mark may at least indirectly
deter prospective purchasers (voters within the bargaining unit)
from acquiring (voting for) IAM's representational services, that
deterrent will exist only if, and to the extent that, confusion
causes purchasers to be misinformed about the nature or value of
the services. We think it follows inexorably that, if the
electorate can readily identify Winship as the source of the
promotional materials, the deterrent vanishes. See, e.g.,
McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511, 1519 n.11
(1995) (suggesting that once people know the source of a writing,
they can evaluate its message, and, at that point, "it is for
them to decide what is responsible, what is valuable, and what is
truth") (citation and internal quotation marks omitted). In that
event, there is no misleading as to the genesis of the letters,
and the voters can assess whether the Winship-authored handouts
accurately describe the Union's services, or, instead, are merely
12
a manifestation of Winship's no-holds-barred commitment to
dissuade the voters from "purchasing" those services. Put
another way, knowledge as to the source of the materials dispels
incipient confusion.
The Union attempts to confess and avoid. It contends
that the recipients' ability to ascertain the source of the
documents does not necessarily negate confusion. This contention
hinges on the theory that employees may have thought that the
letters, even if delivered by the company, were actual IAM
documents which Winship procured and then draped in anti-union
invective. But that theory does not fit the facts: patently,
this is neither an instance in which an employer distributes
copies of a notice previously sent by a union to employees
elsewhere and adds anti-union commentary, nor one in which an
employer makes minor emendations to an authentic union document.
The letters and the invoice are composed around names and
circumstances indigenous to this particular organizational
effort. Among other things, the letters bear a date significant
in its relation to the scheduled election; they address each
Winship employee by name and home address; and they identify this
employer. Source-identifiers specific to the Winship election
are even more pervasive in the fictitious invoice.
The Union's fallback position seems to be that, even if
it is nose-on-the-face plain that the letters and the invoice are
not replicas of genuine IAM materials, the affected employees
still may have believed that they somehow were based on genuine
13
materials. We think this construct is both legally unsound and
factually unsupported. In the first place, a recipient's ability
to recognize that the alleged infringer, at a minimum, must have
substantially added to or altered a document alleviates any
confusion as to its immediate source. Cf. Warner Bros., Inc. v.
American Broadcasting Cos., 720 F.2d 231, 246 (2d Cir. 1983)
(suggesting that lack of substantial similarity leaves "little
basis" for asserting likelihood of confusion in a Lanham Act
claim). In the second place, even indulging the arguendo
assumption that the contrived documents were based on a real
scenario, the alterations are sufficiently extensive that an
ordinary recipient, possessing a modicum of intelligence, could
not help but recognize that Winship had tampered so substantially
with the documents that they could no longer be perceived as
emanating from the Union.6 In other words, the documents'
credibility would depend on the voters' assessment of whether
Winship was telling the truth. See McIntyre, 115 S. Ct. at 1519
6An analogous principle in copyright law is instructive.
Absent direct evidence of copyright infringement, a plaintiff
must prove "substantial similarity" between the copyrighted and
contested materials. See, e.g., NEC Corp. v. Intel Corp., 10
U.S.P.Q.2d 1177, 1183 (N.D. Cal. 1989). The applicable test is
"whether the work is recognized by an observer as having been
taken from the copyrighted source." Id. at 1184. Even if a work
is copied, however, no copyright infringement exists if
substantial changes render the work unrecognizable. See v.
Durang, 711 F.2d 141, 142 (9th Cir. 1983) (affirming grant of
summary judgment for the defendant); NEC Corp., 10 U.S.P.Q.2d at
1186-87; cf. A. Dean Johnson, Music Copyrights: The Need for an
Appropriate Fair Use Analysis in Digital Sampling Infringement
Suits, 21 Fla. St. U. L. Rev. 135, 158-59 (1993) (noting greater
likelihood of fair use in copyright cases if alterations render
an original music recording unrecognizable).
14
n.11 (discussing the value of knowing "the identity of the
source" for the purpose of judging the truthfulness of ideas
contained in a writing). We conclude, therefore, with regard to
these documents, that as long as employees can ascertain either
who authored or who substantially modified the literature, they
will readily recognize the entire document (including the
letters, in one case, and the invoice, in the second case) as
propaganda, and they will be in a position to gauge its accuracy
accordingly.
This emphasis on source recognition takes into account
the setting and the juxtaposition of the parties. Labor-
management relations have not mellowed since Justice Clark
observed three decades ago that representational campaigns "are
ordinarily heated affairs . . . frequently characterized by
bitter and extreme charges, countercharges, unfounded rumors,
vituperations, personal accusations, misrepresentations and
distortions." Linn v. United Plant Guard Workers of Am., Local
114, 383 U.S. 53, 58 (1966). Because exaggeration, sometimes
crossing the line into outright falsehood, is a staple in such
campaigns, "consumers" (i.e., affected workers) are on notice
that both sides likely will embellish with scant regard for the
confining restraints imposed by the truth. See Baumritter Corp.
v. NLRB, 386 F.2d 117 (1st Cir. 1967) (explaining that
inaccuracies are indigenous to campaign propaganda in the labor
relations milieu). The acrimonious literature disseminated by
both parties indicates that this campaign was no exception to the
15
rule.7
D
D
Having woven the contextual tapestry against which the
Union's claims must be viewed, we turn now to the octet of
factors that typically inform the likelihood of confusion. While
the strange configuration of this case renders certain of those
factors irrelevant or, at least, difficult to apply square pegs
never fit snugly in round holes we make the effort in the
interest of completeness. Moreover, other relevant circumstances
compensate to some degree for this lack of fit and we intersperse
them throughout our discussion. We deem such circumstances to be
of especially great importance here precisely because this case
falls well outside the customary confines of the Lanham Act.
1. Similarity of Marks. The service mark used by
1. Similarity of Marks.
Winship is not merely similar; it is identical a photocopied
reproduction. Still, similarity is determined on the basis of
the designation's total effect, see, e.g., Pignons, 657 F.2d at
487 (considering additional, source-identifying words printed on
goods and substantial differences in packaging), and infringement
"does not exist, though the marks be identical and the goods very
similar, when the evidence indicates no [likelihood of
confusion]." James Burrough Ltd. v. Sign of the Beefeater, Inc.,
7For example, one IAM flier of the "when did you stop
beating your wife?" variety, asks: "WHAT LIES OR HALF TRUTHS
DO[ES WINSHIP] PLAN TO SPREAD DURING OUR DEBATE?" The IAM
materials also describe anticipated "company tactics" or "tricks"
in unflattering terms and warn employees to "LOOK OUT FOR
CORPORATE TRAPS." The Winship literature, discussed above,
speaks for itself.
16
540 F.2d 266, 274 (7th Cir. 1976). What is more, we have
recognized that in certain circumstances otherwise similar marks
are not likely to be confused if they are used in conjunction
with clearly displayed names, logos or other source-identifying
designations of the manufacturer. See Aktiebolaget Electrolux v.
Armatron Int'l, Inc., 999 F.2d 1, 4 (1st Cir. 1993); Pignons, 657
F.2d at 487. Here, the lengthy propagandistic message that
Winship printed in large type on the fictitious invoice and the
conspicuous, easily identifiable fliers it sent to introduce the
letters dilute the inference that might otherwise be drawn from
the similarity between the marks.
2. Similarity of Services. Because the parties do not
2. Similarity of Services.
offer competing services, there is no similitude. Furthermore,
even if the documents are evaluated in the abstract, we do not
think that any reasonable person, viewing them in their entirety
and in conjunction with the accompanying materials, would find
them similar to IAM's authentic campaign literature.
On the one hand, any similarity to actual IAM materials
is limited to the vitriolic tone, the presence of the IAM service
mark, and the facsimile signature. On the other hand, unlike any
genuine IAM communication, the letters are postdated by a full
year and address the employees as if they already had opted in
favor of union representation. The next piece of propaganda (the
invoice) contains anti-union messages that are longer and much
more prominent than any other text. And, moreover, in stark
contrast to handbills distributed by IAM which invariably urged
17
employees to vote "yes" (i.e., for a union), the letters at issue
were attached to rabidly anti-union fliers exhorting employees to
vote "no" (i.e., against a union). In short, the bogus letters,
when compared to the real McCoy, are distinctive in appearance
and antithetical in content. Given such gross dissimilarities,
it cannot reasonably be inferred that ordinarily prudent workers
would be likely to confuse the source of the letters. See Senco
Prods., Inc. v. International Union of Elec. Workers, 311 F.
Supp. 590, 592 (S.D. Ohio 1970) (finding no likelihood of
confusion as to sponsorship of handbills circulated by a union
bearing employer trademark in bold print on the first line,
followed by union identifiers of equal prominence).
3-5. Channels of Trade and Advertising; Classes of
3-5. Channels of Trade and Advertising; Classes of
Prospective Purchasers. Following circuit precedent, see Equine
Prospective Purchasers.
Technologies, Inc. v. Equitechnology, Inc., 68 F.3d 542, 546 n.5
(1st Cir. 1995), we address the next three factors in the
ensemble. The parties' channels of trade are widely disparate
(reduced to bare essence, IAM sells representational services
whereas Winship sells nursing home beds), and there is no
evidence that the channels advertising those services are
similar.
To be sure, as the election campaign picked up steam,
both parties propagandized (and, in that sense, advertised)
through the same medium (print), and both of them targeted
exactly the same narrowly-defined cadre of individuals. The
class of prospective purchasers is necessarily restricted to
18
those individuals and is, therefore, identical. Still, that
identicality does not advance the Union's cause in the special
circumstances of this case.
On this point, the requisite inquiry is not limited
merely to determining whether the class of prospective purchasers
is the same or different. Instead, a court called upon to assay
likelihood of confusion must ponder the sophistication of the
class, thereby taking account of the context in which the alleged
infringer uses the mark. See, e.g., Astra, 718 F.2d at 1206-07;
HQ Network Sys. v. Executive Headquarters, 755 F. Supp. 1110,
1118-19 (D. Mass. 1991). Here, the organizational effort began
in May. Among other things, the Union held open meetings and
sent the affected workers periodic "organizing updates." Thus,
by late July when Winship began to distribute the challenged
documents persons within the class could not help but know of
the ongoing campaign and of its excesses.
We must presume that the class members are of normal
intelligence, see McLean, 96 U.S. at 251; Church of the Larger
Fellowship, Unitarian Universalist v. Conservation Law Found. of
New Eng., Inc., 221 U.S.P.Q. 869, 873 (D. Mass. 1983), and the
previous months' electioneering would have given them a certain
degree of enforced sophistication. Common sense dictates that
this group above all others would filter the rivals' claims
through the seine of this knowledge. Cf. Linn, 383 U.S. at 60-62
(discussing the NLRB's toleration of abusive and inaccurate
statements made during organizational campaigns and agreeing that
19
the ultimate appraisal of such statements must be left to the
good sense of those voting in the elections). Accordingly, class
members were especially unlikely to be misled by Winship's
unauthorized use of the IAM mark.
6. Actual Confusion. IAM proffers Dale Hartford's
6. Actual Confusion.
affidavit as the mainstay of its case (indeed, its solitary piece
of evidence) on the issue of actual confusion. The affidavit
states briefly that "several" employees asked whether Hartford
had in fact written the letter that bore his signature.8 It also
reports that one employee questioned whether she would be
required to pay $300 in dues and a $200 initiation fee. Hartford
opines that "these figures seem to have had to have come from
[the apocryphal union invoice]." This evidence, standing alone,
is insufficient to prove actual confusion.
The fundamental problem with the Hartford affidavit is
that, even taking its contents as literally true, it does not
undermine what is perfectly obvious from a reading of the record:
no person of ordinary prudence and normal intelligence, aware of
what was happening around her, would have been confused as to the
source or sponsorship of the letters. For one thing, the
inquiries to which Hartford alludes reveal at most that employees
doubted whether he would have written a letter unfavorable to the
very cause he had labored to promote. On their face, these
8Although Hartford recalled that these statements were made
in front of approximately ten other employees at a union meeting,
he claimed that he could not locate the list of attendees and,
consequently, could not name either the persons who made inquiry
of him or those who overheard the queries.
20
inquiries do not evince actual confusion as to the source of the
jury-rigged documents. See Restatement (Third) of Unfair
Competition 23 cmt. c (1995) ("Evidence of inquiries by
customers as to whether the plaintiff and the defendant are
associated . . . may not establish the existence of actual
confusion if the nature of the inquiries indicates that consumers
perceive a difference between the designations and are skeptical
of the existence of a connection between the users.").
For another thing, skepticism is particularly rampant
and wise as to claims made in the course of any organizing
drive. In the course of this organizing drive a struggle which
incited more than its share of hyperbole on both sides class
members had ample reason to be skeptical. They must have known
that Winship distributed the fliers (which embodied the letters),
and they therefore knew that the letters had to be viewed in
light of Winship's motivation. In all events, forewarned is
forearmed, see Miguel de Cervantes, Don Quixote de la Mancha
(circa 1615), and, here, the Union disseminated literature in the
early going predicting that management would stoop to dubious
tactics.
The question about dues is an even thinner reed. A
lone inquiry does not indicate probable confusion of an
appreciable number of purchasers. See Mushroom Makers, 580 F.2d
at 47. Regardless, this lone inquiry which questioned the
veracity of the prediction concerning union dues does not
indicate confusion as to the source of the fictitious invoice.
21
See Pignons, 657 F.2d at 490 (finding consumer's letter
expressing surprise at perceived affiliation between competing
companies "clearly insufficient" to prove actual confusion).
The Union strives to persuade us that, no matter how
paltry the evidence of actual confusion, it is nonetheless
adequate to survive testing on summary judgment where we must
accept all reasonable inferences favorable to the nonmovant. We
are not convinced. The core purpose of the summary judgment
procedure is to "pierce the boilerplate of the pleadings" and
evaluate the proof to determine whether a trial will serve any
useful purpose. Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791,
794 (1st Cir. 1992), cert. denied, 507 U.S. 1030 (1993).
Consequently, summary judgment cannot be sidestepped by pointing
to evidence that is merely colorable or suggestive, see, e.g.,
Mack, 871 F.2d at 181, or evidence that lacks substance, see,
e.g., Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.
1991), cert. denied, 504 U.S. 985 (1992), or evidence that is
inherently incredible, see, e.g., United States v. Joost, 92 F.3d
7, 14 (1st Cir. 1996).
In this instance, the Union submitted no affidavits
from any individuals who personally received the campaign
literature,9 and we think that it is inherently implausible to
9In point of fact, the only such affidavit in the record
that of an employee named Gail Snipe states unequivocally that
she "recognized all of the materials . . . to be my employer's
campaign materials." She adds: "The face of the documents as
well as the context in which the documents were presented made it
clear that the campaign materials were from the employer, not the
IAM."
22
infer from the inquiries described by Hartford that prospective
voters actually were confused as to the source of the materials.
The summary judgment paradigm requires us to draw and respect
only reasonable inferences; we need not infer that which is
farfetched or fantastic. See Sheinkopf v. Stone, 927 F.2d 1259,
1262 (1st Cir. 1991); Medina-Munoz v. R.J. Reynolds Tobacco Co.,
896 F.2d 5, 8 (1st Cir. 1990); Raskiewicz v. Town of New Boston,
754 F.2d 38, 45 (1st Cir.), cert. denied, 474 U.S. 845 (1985).
Here, the face of the documents, the accompanying fliers, the
environment in which they were distributed, and the lack of
significantly probative evidence of actual confusion combine to
render unreasonable the inference that IAM would have us draw.
7. Intent. IAM relies heavily on the principle that
7. Intent.
when an alleged infringer intentionally copies a trademark, it
may be presumed that she intended to cause confusion and profit
thereby.10 See Sullivan, 867 F.2d at 34. But the presumption is
inapposite in situations where there is no persuasive evidence of
any intent to use the mark to suggest official sponsorship. See
WCVB-TV, 926 F.2d at 45-46 (attaching considerable importance to
the alleged infringers' contemporaneous offer to broadcast
disclaimers, thus making clear that they were not official
sponsors of the trademarked product).
10This rebuttable presumption works with maximum efficiency
in the commercial setting. There, an infringer typically copies
a trademark to palm off her own goods as those of a recognized
manufacturer, thereby free riding on the markholder's reputation
and goodwill. See generally McCarthy, supra, 25.01. The
presumption works less well in cases that do not involve
competitors.
23
The template of this case is similar to that of WCVB-
TV. Winship incorporated the bogus documents in fliers
prominently displaying anti-union commentary and containing pleas
by named managers for votes against unionization. In addition,
the fake invoice itself includes what amounts to a conspicuous
disclaimer. Under the circumstances, no reasonable factfinder
could conclude, notwithstanding Winship's purposeful
misappropriation of the IAM service mark, that the company
intended to mislead employees about the source of the handouts.
8. Strength. Under the Lanham Act strong marks enjoy
8. Strength.
the greatest protection against infringement. See Aktiebolaget,
999 F.2d at 5; Pignons, 657 F.2d at 492. The IAM service mark is
robust, having been duly registered and widely promoted for over
thirty years. But the muscularity of a mark, in and of itself,
does not relieve the markholder of the burden to prove a
realistic likelihood of confusion. See Aktiebolaget, 999 F.2d at
5; Pignons, 657 F.2d at 492. Because the Union has utterly
failed to produce evidence sufficient to meet that burden, see
supra, the mark's strength cannot carry the day.
E
E
After giving due weight to each factor and considering
the unique circumstances that necessarily inform our analysis, we
find no colorable basis for a likelihood of confusion, and,
hence, no trialworthy Lanham Act claim. In reaching this
conclusion we stress the significance of the factual setting.
Here, the ambiance powerfully influenced the impression conveyed
24
by Winship's unauthorized use of the IAM service mark. The
parties' preparations for the election inflamed the historic
enmity between labor and management and colored the
communications distributed by both protagonists. The climate
inevitably conditioned voters to view with suspicion any claims
made by either party about the other. This suspicion peaked
shortly before the election, and that is when the offending
documents surfaced. Moreover, the documents, when received, were
affixed to clearly identifiable management propaganda. These
additional, relevant circumstances counsel persuasively against
any realistic possibility of confusion as to
the source or sponsorship of the mismarked literature.
IV. CONCLUSION
IV. CONCLUSION
Considering the record as a whole in the light most
favorable to the summary judgment loser, we hold that there is no
triable issue of fact as to likelihood of confusion. It is simply
inconceivable that employees who received the challenged literature at
the height of a fiercely disputed union organizing campaign would,
upon even a cursory glance, be apt to believe that IAM either
distributed or contributed in any meaningful way to these vociferously
anti-union tracts.
We add a postscript. The employer wins this appeal, but not
our admiration. While we strongly disapprove of Winship's
misappropriation of IAM's service mark, however, the Union has other
available remedies to redress that infraction. See, e.g., Linn, 383
U.S. at 61 (approving state-law remedy in analogous circumstances).
25
For our part, we are unwilling to stretch the Lanham Act into
unfamiliar contours simply for the sake of punishing conduct that we
deplore. While we are not willing to venture quite as far into
uncharted waters as our concurring colleague after all, unlike the
authorities on which she primarily relies, see post, this case
involves neither a political campaign nor a parody the policy
concerns that undergird her views fortify our resolve to hold the
line. By like token, the special circumstances that the district
court described at length, see IAM, 914 F. Supp. at 653-56 such as
the noncommercial nature of the unauthorized use, the absence of any
competition between the parties in the representational services
market, and the fact that Winship did not appropriate the mark for use
"in connection with" any services of its own point in the same
direction.11 We need go no further.
Affirmed.
Affirmed.
Concurring Opinion Follows
11We take no view of the concurring opinion's suggested
holding, the grounds on which the district court premised its
ruling, or the other theories urged by Winship in support of the
judgment below. While the Union's case may be vulnerable on
several fronts, the absence of any meaningful confusion renders
further comment supererogatory.
26
Saris, U.S.D.J.
I concur on the ground that Winship Green's misuse of the
union's trademark in its campaign literature during the union election
is not a commercial use of the mark adumbrated by Sections 32 or
43(a) of the Lanham Act, as amended, 15 U.S.C. 1114(1), 1125
(1994).
I
I
The union alleges that Winship Green's use of its trademark
during the election violated Sections 32 and 43(a) of the Lanham Act.
A
A
Section 32 of the Lanham Act concerns "trademark
infringement" and proscribes misuse of another's registered trademark
in commerce "in connection with the sale, offering for sale,
distribution, or advertising of any goods or services on or in
connection with which such use is likely to cause confusion, or to
cause mistake, or to deceive."12 15 U.S.C. 1114(1)(a) (1994).
12 Section 32 of the Lanham Act, as amended, states in
pertinent part:
(1) Any person who shall, without the consent of the
registrant --
(a) use in commerce any reproduction, counterfeit,
copy, or colorable imitation of a registered mark
in connection with the sale, offering for sale,
distribution, or advertising of any goods or
services on or in connection with which such use
is likely to cause confusion, or to cause mistake,
or to deceive ...
* * *
shall be liable in a civil action by the registrant for
the remedies hereinafter provided....
27
B
B
Section 43(a) provides broader protection, prohibiting
"unfair competition" by use of any mark, registered or not. See Two
Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992). Section
43(a) prohibits two types of activities: "false designations of
origin," 15 U.S.C. 43(a)(1)(A) ("Prong (A)") and "false
descriptions," 15 U.S.C. 43(a)(1)(B) ("Prong (B)").13 See Truck
Components, Inc. v. K-H Corp., 776 F. Supp. 405, 409 (N.D. Ill. 1991);
3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition
27.02[3] (3d ed. 1996) (discussing history of the "two prongs" of
15 U.S.C. 1114(1) (1994).
13 Section 43(a) of the Lanham Act, as amended, states in
pertinent part:
1125. False designations of origin and false
descriptions forbidden
(a) Civil action. (1) Any person who, on or in
connection with any goods and services, or any
container for goods, uses in commerce any word, term,
name, symbol, or device, or any combination thereof, or
any false designation of origin, false or misleading
description of fact, or false or misleading
representation of fact, which --
(A) is likely to cause mistake, or to deceive as
to the affiliation, connection, or association of
such person with another person, or as to the
origin, sponsorship, or approval of his or her
goods, services, or commercial activities by
another person, or
(B) in commercial advertising or promotion,
misrepresents the nature, characteristics,
qualities, or geographic origin of his or another
person's goods, services, or commercial
activities.
shall be liable in a civil action by any person who
believes that he or she is or is likely to be damaged
by such act.
15 U.S.C. 1125(a) (1994) (emphasis in original).
28
43(a) -- 43(a)(1)(A) ("trademark infringement") and 43(a)(1)(B)
("false advertising").
Prong (A)14 prohibits false designations of the origin or
sponsorship of goods or services. 15 U.S.C. 1125(a)(1)(A) (1994).
Typical claims under prong (A) would involve a new trademark that was
confusingly similar to an already established one, or an attempt by a
defendant to "palm-off" its goods as those of a competitor by use of
the competitor's mark. See Truck Components, 776 F. Supp. at 409;
McCarthy on Trademarks, supra, at 27.02[4] (describing these claims
as "trademark infringement").
In contrast, the protection under prong (B) is very
different. Following its amendment in 1988, prong (B) creates
liability for misrepresentations in commercial advertising or
promotion as to the "nature, characteristics, qualities or geographic
origin" of another person's goods or services. 15 U.S.C. 1125(a)(1)
(1994); see also Trademark Law Revision Act, Pub. L. 100-662, 132,
102 Stat. 3946 (1988); U.S. Healthcare, Inc. v. Blue Cross of Greater
Philadelphia, 898 F.2d 914, 921 (3d Cir. 1990) (discussing effect of
1988 amendment to Lanham Act); McCarthy on Trademarks, supra, at
27.02[4]. The Senate Committee Report accompanying this amendment
explained the need for this addition to the Act as follows:
In one important area, however, the courts
have refused to apply the section. Based on a
1969 seventh circuit decision, the courts have
held that Section 43(a) applies only to
misrepresentations about one's own products and
14 In 1992 Congress redesignated paragraphs (1) and (2) of
section 43(a) as subparagraphs (A) and (B). See Oct. 27, 1992,
Pub. L. 102-542, 3(c), 106 Stat. 3568.
29
services; it does not extend to misrepresentations
about competitor's products or services. Bernard
Food Indus. v. Dietene Co., 415 F.2d 1279, 163
USPQ 265 (7th Cir. 1969), cert. denied, 397 U.S.
912, 164 USPQ 481 (1970). The committee agrees
that this effect is illogical on both practical
and public policy levels and that the public
policy of deterring acts of unfair competition
will be served if Section 43(a) is amended to make
clear that misrepresentations about another's
products are as actionable as misrepresentations
about one's own.
S. Rep. No. 515, 100th Cong., 2d Sess. (1988), reprinted in 1988
U.S.C.C.A.N. 5577; see also McCarthy on Trademarks, supra, at
27.02[4] (stating that 1988 amendment codified "two prongs" of
43(a): "part one relat[ing] to . . . unregistered trademark,
tradename and trade dress infringement claims, and part two
relat[ing] to . . . false advertising (as well as trade libel)
claims"). Thus, prong (B) prohibits misrepresentations about the
quality of a defendant's own goods -- even where the
misrepresentations do not tend to confuse its goods with those of
a competitor or otherwise misstate the origin of the goods -- as
well as affirmative misrepresentations about another's products.
Truck Components, 776 F. Supp. at 409 (citing In re Uranium
Antitrust Litigation, 473 F. Supp. 393, 408 (N.D. Ill. 1979));
see also McCarthy on Trademarks, supra, at 27.04 (describing
elements of prima facie case under prong (B)).
II
II
I am in agreement with the majority that the origin and
sponsorship of the allegedly infringing documents was never in
doubt. With respect to section 43(a) of the Lanham Act, prong
(A) is inapplicable because there is no evidence, or even
30
contention, that the company used the union's mark to deceive
bargaining unit members as to the affiliation of the company with
the union or as to the sponsorship of its services by the union.
Quite the contrary.
However, there is evidence that Winship Green used the
union's trademark to misrepresent the characteristics and nature
of the union's services (i.e., the amount of union dues or the
purportedly draconian results of failure to pay them), thereby
implicating prong (B), governing false descriptions. Cf. Energy
Four, Inc. v. Dornier Medical Systems, Inc., 765 F. Supp. 724,
730 (N.D. Ga. 1991) (describing cause of action for
misrepresentation under Section 43(a)(1)(B) and collecting
cases); Brandt Consol., Inc. v. Agrimar Corp., 801 F. Supp. 164,
174 (C.D. Ill. 1992) (same); McCarthy on Trademarks, supra, at
27.04 (same). Because this evidence that the company
misrepresented the union's services may be sufficient for the
fact-finder to find confusion as to the "nature, characteristics,
[or] qualities" of the union's services, I would not allow
summary judgment for the company under prong (B) on the ground of
a lack of confusion.
III
III
A firm ground for summary judgment, it seems to me, is
that the Lanham Act creates no liability because the deception
did not occur in connection with commercial sales or advertising,
as required under the Act, but rather in campaign hand-outs.
The Lanham Act protects only against certain commercial
31
uses of trademarks. Section 32 governs the use of a registered
mark "in commerce . . . in connection with the sale, offering for
sale, distribution, or advertising of any goods or services." 15
U.S.C. 1114(1)(a) (1994). Section 43(a) is likewise limited to
uses of marks "in commerce," 15 U.S.C. 1125(a)(1) (1994), which
the Act defines as using or displaying a mark in the sale or
advertising of goods or services,15 see 15 U.S.C. 1127 (1994).
And, section 43(a)(1)(B) limits misrepresentation claims to those
cases involving "commercial advertising or promotion." 15 U.S.C.
1125(a)(1)(B) (1994).
While there is no appellate case directly on point,
trial courts have rejected efforts to extend the Lanham Act to
cases where the defendant is not using or displaying the
trademark in the sale, distribution or advertising of its goods
or services. See Lucasfilm Ltd. v. High Frontier, 622 F. Supp.
931, 934 n.2 (D.D.C. 1985) (rejecting the claim that advertising
companies could be held liable for using the trade name "Star
Wars" in the political debate over a national policy because the
15 15 U.S.C. 1127 states in pertinent part:
The term "use in commerce" means the bona fide use of a
mark in the ordinary course of trade, and not made
merely to reserve a right in a mark. For purposes of
this chapter, a mark shall be deemed to be in use in
commerce --
* * *
(2) on services when it is used or displayed in
the sale or advertising of services and the
services are rendered in commerce, or the services
are rendered in more than one State or in the
United States and a foreign country and the person
rendering the services is engaged in commerce in
connection with the services.
32
trademark laws only reach activities in which a trademark is used
in connection with selling or advertising services of commercial
or noncommercial defendants); Stop the Olympic Prison v. United
States Olympic Comm., 489 F. Supp. 1112, 1124 (S.D.N.Y. 1980)
(expressing serious doubts as to whether the Lanham Act applies
to the deceptive use of the Olympic trademark by a group opposing
the conversion of Olympic facilities into a prison, in part
because "there is no suggestion that the alleged deception was in
connection with any goods or services"); Reddy Communications,
Inc. v. Environmental Action Found., 477 F. Supp. 936, 946
(D.D.C. 1979) (rejecting claim that an environmental group's
caricature of an energy industry service mark violated the Lanham
Act where the company failed to prove that the environmental
group used the service mark to "identify or promote" the sale of
its publications); see generally L.L. Bean, Inc. v. Drake
Publishers, Inc. 811 F.2d 26, 32 (1st Cir. 1987) (holding under
a state anti-dilution state that a parody was not a commercial
use of plaintiff's mark because the publisher "did not use Bean's
mark to identify or market goods or services to consumers"),
cert. denied, 483 U.S. 1013 (1987).
Nonetheless, some forms of union-related activity may
constitute commercial sale or advertising that is protected under
the Act. See, e.g., Brach Van Houten Holding, Inc. v. Save
Brach's Coalition for Chicago, 856 F. Supp. 472, 475-476 (N.D.
Ill. 1994) (finding Lanham Act protection applicable where union
used company logo in connection with the sale and distribution of
33
its buttons and stickers and solicitation of donations to support
the coalition's opposition to a plant closing and was likely to
cause confusion as to the company's affiliation with, or approval
of, defendant's proposals); Marriott Corp. v. Great Am. Serv.
Trades Council, AFL-CIO, 552 F.2d 176, 179 (7th Cir. 1977)
(rejecting the union's contention that the National Labor
Relations Board had exclusive jurisdiction over an action for
trademark infringement arising under the Lanham Act where the
union allegedly used the company's trademark in advertisements
which suggested an affiliation between the company and the union
in advertising its services to prospective employees). However,
such commercial activity is simply not present here.
Accordingly, the union's limited property right under
the Lanham Act against commercial misuse of its trademark is not
implicated in this case. See generally Lucasfilm Ltd., 622 F.2d
at 933 ("It is well established that the property right conferred
by a trademark is very limited."). While the union rightfully
complains about the company's unfair tactics, it must find its
federal remedy for deceptive campaign literature under the
National Labor Relations Act, 29 U.S.C. 141 et seq. (1994).
See Linn v. United Plant Guard Workers of Am., Local 114, 383
U.S. 53, 60 (1966) (permitting libel action under state law for
defamatory statements published during a union organization
campaign and discussing authority of the National Labor Relations
Board to set aside elections where "a material fact has been
misrepresented in the representation campaign; opportunity for
34
reply has been lacking; and the misrepresentation has had an
impact on the free choice of the employees participating in the
election").
Because the Court reaches the same conclusion for
somewhat different reasons, I join in its judgment.
35 | 01-03-2023 | 02-07-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1619357/ | 303 S.W.3d 359 (2009)
Emory NASH, Appellant,
v.
Dennis PETERS, Appellee.
No. 08-07-00211-CV.
Court of Appeals of Texas, El Paso.
December 23, 2009.
*360 James E. Polk, Dallas, TX, for Appellant.
R. David Weaver, Arlington, TX, for Appellee.
Before CHEW, C.J., McCLURE, and RIVERA, JJ.
OPINION
GUADALUPE RIVERA, Justice.
This is an appeal from a judgment rendered in favor of Appellee (Dennis Peters), the defendant below, on a suit brought by Appellant (Emory Nash) for enforcement of deed restrictions in a residential subdivision. We reverse.
BACKGROUND
Contending Peters violated certain deed restrictions by maintaining junked cars on his property and engaging in improper trash burning, Nash filed suit in the Justice Court. Peters denied the allegations, but a jury determined otherwise and found for Nash, awarding him $3,500 in punitive damages for breach of the restrictive covenant and $1,500 in attorneys' fees.
*361 Peters appealed the jury's verdict to the County Court. Filing a second amended petition, Nash also sought injunctive relief barring Peters' further violation of the deed restrictions. Claiming that the County Court lacked jurisdiction to consider Nash's contentions since Nash was seeking injunctive relief and could not prove any monetary damages from Peters' alleged breach of the deed restrictions, Peters moved for summary judgment on traditional and no-evidence grounds. In addition to responding to Peters' summary-judgment motion, Nash filed a motion to sever all causes of action that were not pled in the Justice Court. He also sought to sever the injunctive actions as the injunctive relief arose from the same core set of facts pled in the Justice Court. The court granted a partial summary judgment to Peters and denied Nash's action for injunctive relief.
On January 24, 2007, Nash's suit for breach of deed restrictions was tried to a jury in the County Court. The jury found that Peters violated the restrictive covenant in question and awarded $20,262.50 in attorneys' fees. In response, Peters moved for judgment in his favor. The court agreed with Peters and rendered judgment that Nash take nothing, since he was not a prevailing party, and ordered Nash to pay the costs of the suit. After Nash's motion for rehearing was denied, he appealed.
DISCUSSION
Nash raises two issues on appeal. First, he contends that the County Court abused its discretion by finding the Justice Court lacked jurisdiction to grant him relief in the deed-enforcement suit, and second, that the County Court erred in failing to grant him attorneys' fees. The parties do not contest that Peters violated the deed restrictions, but rather whether Nash, having failed to plead monetary damages or obtain injunctive relief in the Justice Court, was a prevailing party.
The applicable statutes at issue are Section 27.034 of the Government Code, which provides that a justice court has concurrent jurisdiction with district courts in suits to enforce residential subdivisions' deed restrictions, and Section 5.006 of the Property Code, which provides that "[i]n an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney's fees in addition to the party's costs and claim." Tex. Prop.Code Ann. § 5.006(a) (Vernon 2004); Tex. Gov't Code Ann. § 27.034(a) (Vernon 2004). Peters argues that only courts of record can enter a declaratory judgment and grant injunctive relief, and since justice courts are not courts of record, Peters concludes that the Justice Court lacked jurisdiction to enter a declaratory judgment, and as such, could not have granted Nash the requisite injunctive relief, thus failing to make Nash the prevailing party.
Peters is correct that a justice court is not a court of record. See Warren v. Barron Bros. Millinery Co., 118 Tex. 659, 23 S.W.2d 686, 687 (1930); Healthelp Servs. Group, Inc. v. Iskcon Asset Management, No. 14-97-01300-CV, 1999 WL 459770, at *2 (Tex.App.-Houston [14th Dist.] July 8, 1999, rev. dism'd w.o.j.) (op., not designated for publication). However, we do not believe that a justice court lacks the ability to enter a declaratory judgment when faced with a suit to determine whether restrictive covenants have been violated. Although the general rule is that only courts of a record may render a declaratory judgment, see Tex. Civ. Prac. & Rem.Code Ann. § 37.003(a) (Vernon 2008), we believe that Section 27.034, a much more specific statute, inherently grants the *362 justice court the ability to enter a declaratory judgment in suits relating to the enforcement of a deed restriction. See Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex. 1995); Tex. Gov't Code Ann. § 311.026 (Vernon 2005) (specific statutes control over more general statute). By specifically granting the justice court jurisdiction in deed-enforcement suits, the justice court, in essence, must declare the parties' rights and status with respect to the enforcement of the deed restrictions.
We recognize that Section 27.034(j) states that a justice court may not grant injunctive relief to a party; however, that does not mean that a justice court could not grant a declaratory judgment. Tex. Gov't Code Ann. § 27.034(j). Further, even if we were to conclude that the Justice Court lacked the authority to enter a declaratory judgment in this matter, that does not mean that the court lacked jurisdiction to hear the case, much less that Nash, having failed to obtain injunctive relief, was not the prevailing party in his suit to enforce the deed violations. Nor is there any requirement in such suits that the plaintiff must plead monetary damages to be labeled the prevailing party on a finding that a defendant violated a deed restriction. Rather, the plaintiff simply must prove that the defendant intended to do an act which would breach the deed restriction or that the defendant violated the deed restriction. Jim Rutherford Investments, Inc. v. Terramar Beach Community Ass'n, 25 S.W.3d 845, 853 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); Munson v. Milton, 948 S.W.2d 813, 815 (Tex.App.-San Antonio 1997, pet. denied). If the court so finds, the plaintiff was the prevailing party. See Briargrove Park Property Owners, Inc. v. Riner, 867 S.W.2d 58, 61 (Tex. App.-Texarkana 1993, writ denied); City of Houston v. Muse, 788 S.W.2d 419, 424 (Tex.App.-Houston [1st Dist.] 1990, no writ). And as the successful prosecutor of the breach-of-deed restriction, the court must award him attorneys' fees. Tex. Prop.Code Ann. § 5.006(a); Anderson v. New Property Owners' Ass'n of Newport, Inc., 122 S.W.3d 378, 390 (Tex.App.-Texarkana 2003, pet. denied); Pebble Beach Prop. Owners' Ass'n v. Sherer, 2 S.W.3d 283, 291-92 (Tex.App.-San Antonio 1999, pet. denied); Inwood North Homeowners' Ass'n, Inc. v. Meier, 625 S.W.2d 742, 743-44 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ).
Here, the Justice Court, by statute, had jurisdiction to hear Nash's suit against Peters for violating the deed restrictions. See Tex. Gov't Code Ann. § 27.034(a). Having received a verdict that Peters breached the restrictive covenants in question, Nash was the prevailing party in his suit and entitled to recover attorney's fees.[1]Jim Rutherford Investments, Inc., 25 S.W.3d at 853; Briargrove Park Property Owners, Inc., 867 S.W.2d at 61; Muse, 788 S.W.2d at 424; Finkelstein v. Southampton Civic Club, 675 S.W.2d 271, 279 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). Accordingly, we sustain Nash's first and second issues.
CONCLUSION
We reverse the County Court's judgment and render judgment in favor of Nash as the prevailing party. We further reinstate the jury's award of attorneys' fees to Nash and remand the cause to the County Court for proceedings consistent with this opinion.
NOTES
[1] Peters does not contend that the attorneys' fees awarded by the jury were unreasonable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619374/ | 152 So.2d 586 (1963)
William Louis ENSMINGER et ux., Plaintiffs-Appellants,
v.
The GREAT ATLANTIC & PACIFIC TEA COMPANY, and Aetna Casualty & Surety Company, Defendants-Third Party Plaintiffs-Appellants,
EMPLOYERS LIABILITY ASSURANCE CORP., Ltd., Third Party-Defendant-Appellee.
No. 9913.
Court of Appeal of Louisiana, Second Circuit.
April 1, 1963.
Rehearing Denied April 25, 1963.
*587 Love & Rigby, Shreveport, for plaintiffsappellants.
Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, attorneys for defendants-third party plaintiffs.
Cook, Clark, Egan, Yancey & King, Shreveport, for defendant-appellee.
Before HARDY, AYRES and BOLIN, JJ.
HARDY, Judge.
This is an action ex delicto by plaintiffs, husband and wife, for the recovery of damages allegedly resulting from a fall sustained by plaintiff wife on property leased by defendant, Great Atlantic & Pacific Tea Company. Also impleaded were the insurer for A. & P., and the owners-lessors of the property, together with their insurer. This case has previously been before this court on an appeal from rulings with respect to certain pleas and motions. In accordance with the opinion of the court (Ensminger, et ux. v. Great Atlantic & Pacific Tea Company, et al., La.App., 134 So.2d 686), the case was remanded for further proceedings. After trial on the merits there was judgment rejecting plaintiffs' demands, from which they prosecute this appeal.
The defendant, A. & P., operates a super market located on the Greenwood Road in the City of Shreveport. The main store building faces south and a parking area is provided immediately in front of the store. Along the east side of the store building runs a sidewalk which is adjacent to an extensive parking area on the east. The sidewalk, seven feet in width and raised six inches above the surface of the parking area, extends along the entire east side of the building and ends at an addition to the main building denominated as a machinery building, containing air-conditioning equipment, etc. Because of damage to the east side of the machinery building caused by carelessly operated cars in the parking area, the A. & P. had caused to be erected nine metal posts which were located at a distance of some 30 to 33 inches east of the east wall of the machinery building. These posts were approximately fifteen inches in height, firmly imbedded in the concrete surface of the parking area and were painted an aluminum or silver color.
On the afternoon of December 18, 1958, plaintiff wife, accompanied by her grown son, drove her automobile into a location in the northeast section of the parking area. In making her way to the store entrance plaintiff proceeded from her car to the somewhat narrow passageway between the metal posts and the machinery building, then around the corner of the machinery building to the sidewalk along the east side of the main building and into the front entrance on the south side of the store. After making the purchase of a package of pork chops, Mrs. Ensminger left the store by the front entrance and retraced her route toward her parked automobile simply by reversing the direction by which she had entered the store. According to the testimony of this plaintiff, after she turned the corner of the machinery building she noticed another woman approaching her at a distance of some 30 to 35 feet, whereupon she moved to her right, and after proceeding two or three steps stumbled over one of the posts which had been bent over the passageway at an angle of about 30 degrees with the surface of the parking area, leaving the end of the post approximately 7½ inches above the concrete. The resulting fall was forceful and caused serious and painful injuries.
Pleas of contributory negligence on the part of Mrs. Ensminger were incorporated in the answer of all defendants after specific denials of any negligence on their part. The district judge did not give written reasons for his judgment but the court *588 has been given to understand, in briefs on behalf of defendants, that he predicated his conclusion upon a finding of contributory negligence, which assertions have not been disputed by counsel for plaintiffs.
After thorough and repeated examination of the record before us, we are convinced that the plea of contributory negligence has been preponderantly established by the testimony of Mrs. Ensminger herself. This plaintiff had been a customer of this A. & P. store since its opening some 20 years prior to the date of this accident and admittedly was familiar with the entire area described above; she had proceeded to the entrance of the store by the exact route over which she was returning; she knew the existence and, presumably, the condition of the iron posts, and had used the walkway between them and the wall of the machinery building prior to the date of the accident. The record is filled with irreconcilable contradictions between the witnesses for the respective parties as to certain facts related to the accident. Among these hotly disputed points are the questions as to the number of posts that were actually standing at the time and the angles to which they had been bent over the narrow passageway between them and the east wall of the machinery building. Mrs. Ensminger was not positive as to whether there was only one post or whether there were a number of posts, nor was the testimony of her son of any definite aid in the determination of this point. The store manager testified that, while he thought there were six posts standing at the time of the accident, he could not be positive. The one certain fact in this connection is that some months after the occurrence of the accident a new line of posts was constructed. These posts were larger in diameter than the original posts, extended somewhat higher, were painted a different color and, additionally, were protected by railroad cross ties laid in front of them toward the parking area, designed to prevent contact between the bumpers of parking automobiles and the posts. Since some of the witnesses had obviously refreshed their memories by revisiting the scene shortly prior to or during the course of the trial, and, inasmuch as their testimony was necessarily based upon the relationship between the new posts which they observed on these occasions and the old posts which actually existed at the time of the accident, we think it reasonable to conclude that their testimony to some extent was influenced by this circumstance. However, in the final analysis, we think it is immaterial whether the number of posts existing at the time of the accident was one or six. Mrs. Ensminger was obligated to make reasonable and prudent observation and to see what could and should reasonably have been perceptible in walking in the particular location described.
It seems clear that the allegation of plaintiffs' petition and the testimony of Mrs. Ensminger with respect to her momentary distraction by an approaching pedestrian was designed to anticipate the plea of contributory negligence and exculpate her from its application. In this connection, counsel for appellants strenuously argues that the momentary diversion of a person's attention does not establish negligence as a matter of law, citing Crosby v. Brown Oil Tools (La.App. 1 Cir., 1957), 92 So.2d 115. While counsel is quite correct in the conclusion that a momentary diversion of attention does not, in itself, establish negligence as a matter of law, it is evident from a reading of the opinion in the cited case that it stands as authority for the reenunciation of certain well established principles of law. The opinion discussed the issue of diversion of attention in connection with the Louisiana rule of "momentary forgetfulness," and quoted the following recognized legal principles which we deem appropriate to the instant case, namely, that forgetfulness of or inattention to a known danger usually amounts to negligence; that forgetfulness, in itself, is not negligence unless it comprehends a failure *589 to exercise ordinary care for one's safety; that forgetfulness or inattention is excusable only under the existence of some fact, condition or circumstance which would divert the mind or attention of an ordinarily prudent person; that in the great majority of cases knowledge of danger must rest in the imputation arising from the fact that the peril was patent or obvious, or that the plaintiff was familiar with the offending place or appliance. Under the facts of the instant case established by the testimony of Mrs. Ensminger, she was intimately familiar with the entire area in and about which the accident occurred and had knowledge of the possible danger which might result from her lack of attention while walking through the narrow passageway.
Additionally, we are impressed with the fact that the danger to a pedestrian, represented by the leaning metal posts, was patent and obvious. This is true even if we construe the disputed facts in a manner most favorable to plaintiff. Conceding, arguendo, that the post was bent over the passageway at an angle of thirty degrees with the horizontal and that it was partially obscured by a parked automobile, it, nevertheless, constituted an apparent and readily observable obstruction to passage, particularly in view of the fact that Mrs. Ensminger had passed along exactly the same route a short time before.
In relating her story of the occurrence of the accident, the following testimony of Mrs. Ensminger on direct examination is pertinent:
"Q. Was there a car parked nearby?
"A. Yes, sir, and it was an old car, and you know, the bumpers stick out a little further than they do on these new cars and it was over it, it looked like, just a little bit." (Emphasis supplied)
Also material is the factual question as to the clear space left between the end of the bent post and the wall of the building. In connection with his brief, counsel for appellants attached a detailed diagram showing his calculations, which we have checked and found to be approximately correct. Assuming that a 15 inch vertical post had been bent over to an angle of 30 degrees with the horizontal, the end of the post would project 7½ inches above the surface of the ground. Further assuming the space between the wall of the building and the base of the post to have been 32 inches, the bending of the post would have reduced this clear space to approximately 19 inches. On this point, under cross examination, Mrs. Ensminger testified that the space was wide enough for two people to pass. We think this testimony is clearly in error, since it is obvious that a clear space of 19 inches is not sufficient to permit the free passage of two individuals.
There can be no question as to Mrs. Ensminger's knowledge of the existing condition, for she testified:
"I passed there and didn't fall over it when I went in and I walked by the building, so I don't think it went all the way across."
We regard the so-called diversion of attention and the explanation of the reason for Mrs. Ensminger's moving to her right as being strained and unreasonable. The approach of a person some 30 to 35 feet away did not require any immediate action of avoidance. Nor was the fleeting instant of such distraction sufficient in nature or degree to justify plaintiff's inattention and negligence in failing to look where she was going and to observe the obstruction which was obvious and should have been easily perceivable. The factual cause of the distraction or forgetfulness which was considered by our brethren of the First Circuit in the Crosby case, cited supra, was much more serious and, therefore, more calculated to constitute a sudden, adequate and emergently disturbing cause than the one which we have under consideration, despite which the opinion concluded that it was not sufficient to divert the mind or *590 attention of an ordinarily prudent person from the existing danger.
Counsel for appellants further argues that it is not negligent for a store customer whose glance is directed toward merchandise on display to fail to notice a defect in the aisle, citing Ransom v. Kreeger Store, Inc. (La.App. Orleans, 1935,), 158 So. 600; Lindsey v. Travelers Indemnity Co. (La.App. 2 Cir., 1959), 111 So.2d 153; Bowers v. Lumbermens Mutual Casualty Company (La.App. 2 Cir., 1961), 131 So.2d 70. Our examination of the cited cases fails to reveal that the question of distraction of attention or forgetfulness was considered in the opinion of the court in the Lindsey and Bowers cases. In the Ransom case the principal distinction is that the accident occurred inside the store when the plaintiff slipped on a wet spot in the aisle in which she was walking. The opinion quoted from Grigsby v. Morgan & Lindsey, et al., La.App., 148 So. 506, the well established principle that a store customer has the right to rely upon the assumption that the
"* * * entrance to the building and its floor, whereon he must stand or walk, as his needs may require, are safe for such uses on his part."
Even conceding that the responsibility of a store owner to his customers for conditions existing on his premises outside the store is commensurate with the responsibility for the condition of the aisles and floors of the store itself, we do not think such an obligation eliminates the duty of reasonable caution and prudence on the part of the customer. To hold otherwise would, in effect, constitute a store owner the insurer of his customers, which principle has been decried and denied in innumerable cases.
In Battles v. Wellan (La.App. 2 Cir., 1940, writs denied), 195 So. 663, the plaintiff slipped in a wet spot caused by rainwater on the tile flooring of an arcade immediately outside the entrance of defendant's store. The testimony of plaintiff was that she was not looking at the floor but had her attention focused on some dresses in the show window at the time of her fall. This court quoted with approval the opinion of the district judge which, with respect to the above facts, contained the following observation:
"This would indicate that she was giving no thought nor care as to the naturally, unusually smooth tile flooring over which she was walking at the time."
We think the facts which were under consideration in Gustine v. Big Chain Stores, Inc., et al., La.App. 2d Cir., 1938), 180 So. 852, are remarkably analogous to those in the instant matter. The following quotation from the opinion of the court is appropriate:
"Slightly before noon on April 4, 1936, plaintiff drove her Chevrolet coupe onto the lot in question and parked it to the right of and angling with the raised portion. The day was bright and clear. The left front wheel of her car rested almost against the western edge of the slab, while the left rear wheel was several feet away. She alighted by stepping from the left running board onto the elevated area, and then proceeded to and through the building's rear entrance which was to the left of her car. Her exit from the grocery place was made through the same doorway approximately five minutes later, at which time she carried her purse and a bundle containing two loaves of bread. Upon observing that she was separated from her automobile by another motor vehicle parked parallel with and to its left, she passed in front of the intervening machine, turned to her right, and proceeded between the two cars.
"The second car was located on the raised portion, its right front wheel being several feet east of the aforementioned western edge, while its right *591 rear wheel rested on or against such edge.
"When plaintiff reached for the handle of the left door of her coupe, and while standing between the two machines on the western edge of the elevated concrete, her left foot slipped, causing a turning of her ankle and the fall. She suffered injuries to that foot and to one of her knees.
"Plaintiff had traded with the store for many years, and it was customary for her to leave her car on the parking lot and enter the building through the rear entrance. In addition to being aware of the existence of the raised portion on the day of the accident when she alighted on it, she had seen it on her numerous previous visits there. Anyone looking could easily see it, according to her testimony."
The court's conclusion in the Gustine case was set forth as follows:
"In the case at bar, we think that plaintiff's inattention to or forgetfulness of the raised area and its attendant jagged edge was not consistent with the exercise of the ordinary care required of her. The record discloses no circumstances or conditions that arose at the time to momentarily distract or divert her attention from the alleged defect of which she was aware and which was plainly visible to her. She was contributorily negligent in that she failed to employ the care and caution that an ordinarily prudent person would have exercised under similar circumstances, and her negligence bars recovery herein.
"This court said in the case of Glatstein v. City of Shreveport [La.App.] 149 So. 158, 159, that: `The law requires that the pedestrian be observant of where and how he is going so that he may avoid dangers which ordinary care and prudence would disclose. While he is not bound to look for hidden dangers, he is required to walk with his eyes open, to observe his course, to see what is open and apparent, and to use that degree of care which the surrounding circumstances would dictate to a person of ordinary reasonable prudence.'" (Emphasis supplied)
We are convinced that Mrs. Ensminger was guilty of contributory negligence which effectively bars her recovery, and for this reason it is unnecessary to consider the other issues which are presented by this appeal.
For the reasons set forth the judgment appealed from is affirmed at appellants' cost. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619384/ | 303 S.W.3d 688 (2009)
Jonathan Andrew Lee PERKINS, Jr.
v.
Sarah Ella BRUNGER, State of Tennessee, Bureau of TennCare.
No. M2008-00550-COA-R3-CV.
Court of Appeals of Tennessee, Middle Section, at Nashville.
April 15, 2009 Session.
June 10, 2009.
Published Pursuant to R. 11, Tennessee Court of Appeals.
E. Covington Johnston and J. Timothy Street, Franklin, Tennessee, for the appellant, Sarah Ella Brunger.
*689 Joseph A. Woodruff, Paul A. Gontarek and Michael A. Gardner, Nashville, Tennessee, for the appellee, Jonathan Andrew Lee Perkins, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter, and Sue A. Sheldon, Senior Counsel, for the State of Tennessee, Bureau of TennCare.
OPINION
FRANK G. CLEMENT, JR., J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P.J., M.S., and RICHARD H. DINKINS, J., joined.
The sole beneficiary of a decedent filed this action against Defendant to set aside as fraudulent two conveyances of real property to Defendant. The Bureau of TennCare, which had provided benefits to the decedent while a nursing home resident, intervened as a creditor of the decedent alleging that the gratuitous conveyances were fraudulent under Tenn.Code Ann. § 66-3-308, the Uniform Fraudulent Transfer Act (the "UFTA"), because they rendered the nursing home resident insolvent. It is undisputed that while a nursing home resident, the resident, now deceased, was receiving TennCare benefits at the time of the conveyances and that the conveyances rendered him insolvent. Plaintiff and TennCare filed a joint motion for summary judgment. The trial court granted summary judgment in favor of Plaintiff and TennCare on the ground that the quitclaim deeds were fraudulent conveyances under the UFTA. The court declared both conveyances null and void and ordered that title be vested in the decedent's estate. Defendant appealed alleging that Plaintiff was not entitled to relief because the UFTA only affords relief to creditors against their debtors and Plaintiff was not a creditor. As for TennCare, which is a creditor, Defendant contends it was error to set aside both conveyances as TennCare's remedy under Tenn.Code Ann. § 66-3-308 was limited to avoiding the transfer to the extent necessary to satisfy TennCare's claim. We have determined that the remedies a creditor may obtain under the UFTA as a result of transfers that rendered the debtor insolvent include: avoidance of the transfer to the extent necessary to satisfy the creditor's claim; attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by title 26; injunctive relief against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property; appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or any other relief the circumstances may require. Further, if the creditor has obtained a judgment on a claim against the debtor, if the court so orders, the creditor may levy execution on the asset transferred or its proceeds. We, therefore, have concluded that the trial court erred by granting summary judgment in favor of Plaintiff under the UFTA, as Plaintiff is not a creditor, and that judgment in favor of TennCare should be modified to afford TennCare relief to the extent necessary to satisfy TennCare's claim, which may or may not necessitate setting aside both conveyances.
This action arises from the conveyance of two parcels of land from a resident in a nursing home to his sister. Jesse Perkins ("Mr. Perkins") was one of eight children, all of whom were born and raised on the family farm in rural Williamson County. The farm, which was owned by their parents, covered approximately 350 acres. Mr. Perkins suffered severe burns as a child, which left him permanently handicapped. As a result, he remained on the family farm the majority of his life.
Following the death of his parents, the family farm was partitioned among the *690 eight children. Two sizeable tracts of the farm were conveyed to Mr. Perkins. A third tract, that was adjacent to the two parcels he acquired previously, was conveyed to him in May of 1975.
One of Mr. Perkins' siblings, Sarah Perkins Brunger (hereinafter "Defendant"), was also raised on the family farm, and like her siblings, she too received a portion of the farm as a result of the partition.
In May 2002, Mr. Perkins suffered his first stroke. He was treated at the Williamson County Hospital and afterwards recuperated at a nursing home for seven days. During this period of recuperation, Defendant helped Mr. Perkins apply for TennCare benefits to cover his healthcare costs.[1] Two months later, in July 2002, Mr. Perkins suffered a second stroke, after which, he was treated again at the Williamson County Hospital and underwent surgery at St. Thomas Hospital. While in the hospital prior to his surgery, Mr. Perkins' nephew, Jonathan Perkins (Plaintiff) traveled from Green Bay, Wisconsin to visit his uncle, after being summoned by Mr. Perkins for the purpose of having a will drawn. Mr. Perkins executed the will leaving his entire estate to Plaintiff. Following his surgery, Mr. Perkins was discharged to the NHC nursing home facility in Dickson, Tennessee, where he remained for the next three years until his death.
Defendant visited Mr. Perkins in the nursing home on July 30, 2002, for the purpose of having Mr. Perkins execute two quitclaim deeds and a durable power of attorney she had prepared.[2] The quitclaim deeds conveyed all of Mr. Perkins' real estate to Defendant for no consideration.[3] The durable power of attorney appointed Defendant as Mr. Perkins' attorney-in-fact. Mr. Perkins executed all three documents with the assistance of an employee of the nursing home who was a notary public. Defendant recorded the deeds that same day thereby conveying all of Mr. Perkins' real estate to her.
The Department of Human Services terminated Mr. Perkins' TennCare benefits on April 18, 2005, when it learned that Mr. Perkins had conveyed all of his real estate to Defendant. As Mr. Perkins' attorney-in-fact, Defendant filed an appeal of that decision. Mr. Perkins died two months later before the appeal could be heard.
Mr. Perkins died on June 5, 2005.[4] Following his death, Plaintiff, who was the sole beneficiary of Mr. Perkins' estate, filed this action in Williamson County Chancery Court seeking to set aside the quitclaim deeds transferring all of Mr. Perkins' real property to Defendant. Plaintiff alleged that the conveyances should be set aside based on Defendant's exercise of undue influence over Mr. Perkins, Mr. Perkins's lack of mental capacity to execute the deeds, and the assertion that the conveyances were fraudulently made for the purpose of avoiding Mr. Perkins' obligation to TennCare. TennCare timely filed an Intervening Complaint alleging *691 that Mr. Perkins' was indebted to TennCare at the time of the conveyances and that the conveyances rendered Mr. Perkins insolvent; therefore, TennCare was entitled to relief under the Uniform Fraudulent Transfer Act.[5]
Plaintiff and TennCare filed a Joint Motion for Summary Judgment. Following a hearing, the trial court granted their motion finding that there were no genuine issues of material fact; that Mr. Perkins did not receive the reasonably equivalent value in exchange for the transfer of property; that the transfers rendered Mr. Perkins effectively insolvent; that Mr. Perkins intended to incur or reasonably should have believed that he would incur debts beyond his ability to pay as they became due; and that Plaintiff and TennCare were entitled to relief under the Uniform Fraudulent Transfer Act. The court then declared the quitclaim deeds null and void, divested title out of Defendant, and ordered that title be vested in the estate of Mr. Perkins. Defendant appeals.
ANALYSIS
Defendant's primary contentions are: (1) the Uniform Fraudulent Transfer Act ("UFTA"), Tenn.Code Ann. § 66-3-301, et seq., only affords remedies to creditors of debtors; (2) Plaintiff was never a creditor of Mr. Perkins, thus Plaintiff is not entitled to relief under the UFTA; and (3) as a creditor of Mr. Perkins, TennCare's remedies are limited to the extent necessary to satisfy TennCare's claim, which Defendant insists does not require setting aside both conveyances.
THE UNIFORM FRAUDULENT TRANSFER ACT
The UFTA provides that a transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(1) With actual intent to hinder, delay, or defraud any creditor of the debtor; or
(2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:
(A) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
(B) Intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor's ability to pay as they became due.
Tenn.Code Ann. § 66-3-305(a) (2008) (emphasis added). If the creditor can establish that the transfer was fraudulent as to the creditor, the relief to which the creditor is entitled under the UFTA is specifically set forth in Tenn.Code Ann. § 66-3-308(a). That section reads as follows:
(a) In an action for relief against a transfer or obligation under this part, a creditor, subject to the limitations in § 66-3-309, may obtain:
(1) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor's claim;
(2) An attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by title 26;
(3) Subject to applicable principles of equity and in accordance with applicable rules of civil procedure:
*692 (A) An injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property;
(B) Appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or
(C) Any other relief the circumstances may require.
(b) If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.
Tenn.Code Ann. § 66-3-308(a) (2008) (emphasis added).
A close review of the UFTA clearly reveals that the remedies provided under the UFTA are limited to creditors of debtors. Plaintiff, the sole beneficiary of Mr. Perkins' estate, however, is not and never has been a creditor of Mr. Perkins. Therefore, as Defendant correctly contends, Plaintiff is not entitled to any relief under the UFTA. Accordingly, to the extent the summary judgment awarded relief to Plaintiff pursuant to the UFTA, the judgment must be modified.
As for TennCare's claim, the trial court determined that:
E. Jesse Perkins did not receive reasonably equivalent value in exchange for the transfer of the Perkins Property.
F. Jesse Perkins intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.
G. The transfer of the Perkins Property is therefore fraudulent as to the State of Tennessee and the Bureau of TennCare, as creditors of Jesse Perkins.
The UFTA clearly provides that the relief a creditor may obtain is limited to avoidance of the transfer "to the extent necessary" to satisfy the creditor's claim; attachment or other provisional remedy against the asset transferred or other property of the transferee, in accordance with the procedure prescribed by title 26; injunctive relief against further disposition by the transferee of the asset transferred or of other property; appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or any other relief the circumstances may require. Tenn.Code Ann. § 66-3-308(a) (2008).
Defendant admits TennCare is entitled to be paid; therefore, once TennCare obtains a judgment in the amount of its claim, by order of the court, TennCare may levy execution on the real property, as the asset transferred, or its proceeds. TennCare's remedy, however, is limited to the extent necessary to satisfy its claim. See Tenn.Code Ann. § 66-3-308(a)(1).
Although Defendant admits TennCare is entitled to be reimbursed for the amount of its lawful claim, Defendant has not conceded the amount of TennCare's claim. The trial court did not award a specific monetary judgment in favor of TennCare and the record does not reveal the exact amount of TennCare's claims. We, therefore, remand this matter to the trial court to determine the amount TennCare is entitled to recover as a creditor of Mr. Perkins, award a judgment in favor of TennCare in that amount, and then determine how to satisfy the monetary judgment awarded to TennCare pursuant to the criteria and remedies set forth in Tenn.Code Ann. § 66-3-308(a).
AVOIDANCE AND NULLIFICATION OF BOTH DEEDS BASED ON FRAUD
As for the trial court's determination that both of the conveyances are "null and void," we have determined the record is insufficient to support that determination *693 and remedy. Whether one or both of the conveyances should be deemed null and void may depend on whether the conveyances were part of a fraudulent scheme with an "actual intent to hinder, delay, or defraud." See In re Conservatorship of Groves, 109 S.W.3d 317, 352-54 (Tenn.Ct. App.2003). In Groves, this court found that the transfers were made as part of a "fraudulent scheme" to qualify the grantor for governmental benefits and the Groves court made the specific finding that the evidence in the record demonstrated that the transfers were made "with an intent to delay, hinder, or defraud a creditor."[6]Id. at 354 (citing Tenn.Code Ann. § 66-3-308 (1993)). It was upon the finding of actual intent to defraud and public policy that the Groves court declared the transfers "clearly and utterly void." Id.
Unlike in Groves, Mr. Perkins was receiving TennCare benefits when the conveyances were made. Moreover, the trial court did not make a specific finding that the conveyances were the result of actual intent to defraud, and we have determined the evidence in this record is insufficient for this court to make such a determination, especially at the summary judgment stage. Whether the Plaintiff has standing and/or a viable cause of action based upon the actual intent to defraud will have to be determined on remand.[7]
PLAINTIFF'S CLAIMS
Plaintiff asserts other claims for relief against Defendant in addition to the claim under the UFTA. One is based on the statutory scheme regarding "fraudulent conveyances and devices" set forth in Tenn.Code Ann. § 66-6-101 et seq.; one is the claim that Mr. Perkins lacked the requisite mental capacity to convey the property; and another is the claim that Mr. Perkins was unduly influenced by Defendant to convey the property to her.
We have already determined that Plaintiff is not entitled to relief under the UFTA because Plaintiff is not a creditor of Mr. Perkins. For the same reason, we have determined that Plaintiff is not entitled to relief under the "fraudulent conveyances and devices" statutory scheme set forth in Tenn.Code Ann. § 66-3-101 et seq. The rights and remedies afforded under Tenn.Code Ann. § 66-3-101 et seq. are expressly reserved for "creditors or purchasers." Id. As this court concluded twenty years ago in McClure v. Stegall, 729 S.W.2d 263 (Tenn.Ct.App.1987), the expectant beneficiary the widow who was not a creditor did not have standing to assert a claim that her husband's transfer of property was a fraudulent conveyance under Tenn.Code Ann. § 66-3-101, because she was not a creditor. Plaintiff is neither a creditor nor purchaser. Therefore, Plaintiff does not have standing to *694 assert a claim that Mr. Perkins' conveyances were fraudulent conveyances under Tenn.Code Ann. § 66-3-101 et seq.
As for Plaintiff's other claims, for rescission of the deeds because Mr. Perkins lacked the requisite mental capacity to convey the property, for rescission of the deeds because Mr. Perkins was unduly influenced by Defendant to convey the property to her, and for avoidance and nullification of the deeds because the conveyances were orchestrated by Defendant for other fraudulent purposes thereby defeating Plaintiff's claim to his inheritance, those claims survive as the trial court has not ruled on them. We, therefore, remand the surviving claims, along with all other issues not resolved by this opinion, to the trial court for further proceedings.
In Conclusion
The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Costs of appeal are assessed against Jonathan Perkins and Sarah Brunger, equally.
NOTES
[1] Although Mr. Perkins owned valuable real estate, that property was deemed "exempt property" for the purposes of eligibility for TennCare benefits, and Mr. Perkins was eligible for TennCare benefits because he had essentially no liquid assets.
[2] Defendant purchased the quitclaim deeds and power of attorney forms from an office supply store, and with the assistance of her daughter-in-law, filled them in prior to bringing the forms to the nursing home.
[3] The deeds stated that the consideration paid for each conveyance was one dollar.
[4] Mr. Perkins' will was admitted to probate and Stephen Charles Harris was appointed Executor of the estate. TennCare timely filed a claim in the probate court, on September 19, 2005, in the amount of $102,875.46 to recover the benefits paid on behalf of Mr. Perkins.
[5] This statute was previously entitled the Uniform Fraudulent Conveyances Act, but that Act was deleted in its entirety and replaced with the Uniform Fraudulent Transfer Act effective July 1, 2003.
[6] In Groves, this court found two grounds to set aside the transfer of a $100,000 certificate of deposit. First, the court found that undue influence was exerted in obtaining the gifts; secondly, the court found that the gift was made as part of a "fraudulent scheme" to qualify the grantor for governmental benefits. In re Conservatorship of Groves, 109 S.W.3d 317, 352-53 (Tenn.Ct.App.2003).
[7] A grantor, or his personal representative, cannot set aside the fraudulent conveyance based upon his own fraud. See Harton v. Lyons, 97 Tenn. 180, 36 S.W. 851 (1896); Parks v. McKamy, 40 Tenn. (3 Head) 297 (1859); Searcy v. Carter, 36 Tenn. (4 Sneed) 271 (1856); Maley v. Barrett, 34 Tenn. (2 Sneed) 501 (1855); Sharp v. Caldwell, 26 Tenn. (7 Hum.) 415 (1846); Moody v. Fry, 22 Tenn. (3 Hum.) 567 (1842); Lassiter v. Cole, 27 Tenn. (8 Hum.) 621 (1848); Walker v. McConnico, 18 Tenn. (10 Yer.) 228 (1836). However, a gift, the purpose of which is to defraud creditors, "may be set aside by the administrator of the donor, for the benefit of creditors." See 1 Tenn. Juris., Fraudulent and Voluntary Conveyances, § 40 (2004) (citing Martin v. Crosby, 79 Tenn. 198 (Tenn. 1883)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619401/ | 248 N.W.2d 733 (1976)
MINNESOTA STATE BAR ASSOCIATION, Respondent,
v.
DIVORCE ASSISTANCE ASSOCIATION, INC., Defendant,
Richard F. Doyle, Appellant.
No. 45539.
Supreme Court of Minnesota.
December 17, 1976.
*736 Arthur, Chapman, McDonough & Michaelson and Lindsay G. Arthur, Jr., Minneapolis, Thomas J. Burke, St. Paul, for appellant.
Collins & Buckley, Theodore J. Collins, and Morley Friedman, St. Paul, for respondent.
Randall D. B. Tigue and Larry Espel, Minneapolis, amicus curiae, for Minn. Civil Liberties Union, seeking reversal.
Considered and decided by the court en banc.
PETERSON, Justice.
Minnesota State Bar Association has instituted an action seeking an injunction to prohibit the activities of Divorce Assistance *737 Association, Inc.,[1] and Richard F. Doyle, claiming that they are engaged in the unlawful practice of law, Minn.St. 481.02, subd. 1, and are unlawfully advertising for divorce business, Minn.St. 518.29. Doyle was held in contempt for refusing to obey a pretrial order that he respond to a subpoena duces tecum and answer questions asked at a deposition. This appeal followed. The main issue for decision is whether the Fifth Amendment privilege against compulsory self-incrimination justified Doyle's refusal to comply.
The facts are these. After commencing its action plaintiff served a subpoena duces tecum and a notice for the taking of a deposition. At the time of taking the deposition, on November 15, 1974, Doyle refused to answer certain questions put to him by plaintiff's attorney and refused to produce any of the documents sought by the subpoena. The taking of the deposition was consequently adjourned and resumed later that day in the presence of a district court judge. Doyle again refused to answer any of the 22 questions posed by plaintiff's attorney or to produce any of the subpoenaed records, in most instances invoking the Fifth Amendment privilege against compulsory self-incrimination. The court in each instance ordered Doyle to respond and in each instance Doyle refused to do so. The court then ordered Doyle held in contempt and sentenced him to 30 days in the workhouse, staying execution for 10 days for Doyle to perfect an appeal.
A preliminary summary of the general principles of Fifth Amendment jurisprudence which govern analysis of the issues in this case may be stated at the outset. For purposes of cross-reference at subsequent points in the opinion, each principle will be numbered.
1. The Fifth Amendment privilege is available to a witness, including a party, at any stage in a civil proceeding (and not just to a defendant in a criminal proceeding). Among the numerous decisions of the United States Supreme Court, see Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). (Our own Rule 26.02, Rules of Civil Procedure, moreover, specifically provides that a party in a civil action may discover from another party only matters that are "not privileged.")
2. The privilege is properly invoked when the testimony or papers sought would tend to incriminate the witness. He need only show that the testimony or papers would provide a "link in the chain of evidence" required for prosecution and that a chance of prosecution exists. Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950); McCormick, Evidence (2 ed.) § 139.
3. The court and not the witness is the judge of whether there is a tendency to incriminate, but the United States Supreme Court has held that the court should reject an assertion of privilege only where it is "`perfectly clear, from a careful consideration of all the circumstances in the case, that * * * the answer[s] cannot possibly have such tendency' to incriminate." Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 819, 95 L.Ed. 1118, 1125 (1951); citing Temple v. Commonwealth, 75 Va. 892, 898 (1881), cited with approval in Counselman v. Hitchcock, 142 U.S. 547, 579, 12 S.Ct. 195, 204, 35 L.Ed. 1110, 1120 (1892). In determining whether it is clear that the witness' assertion of privilege is improper, the court should not require that the witness explain why he cannot respond, if to do so could result in injurious disclosure. Hoffman v. United States, supra.
4. The privilege does not extend to a corporation or an incorporated association, thus a custodian of the records of a corporation or an association must produce subpoenaed records even though information in the records may incriminate him personally. The only exception to this rule is in the case of those unincorporated associations *738 which are so personal in the scope of their membership and activities that they may be said "to embody or represent the purely private or personal interests" of their constituents. United States v. White, 322 U.S. 694, 701, 64 S.Ct. 1248, 1252, 88 L.Ed. 1542, 1547 (1944); Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). Although a custodian of corporate records may be required to produce and authenticate such records, he may not be required to testify as to the whereabouts of items not produced. Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957). A limitation on this principle is stated in Fisher v. United States, 425 U.S. 391, 409, 96 S.Ct. 1569, 1580, 48 L.Ed.2d 39, 56 (1976), where the court held that implicitly admitting, by responding to questions as to location, the existence and possession of papers whose existence, location, and possession is a foregone conclusion and not in issue does not rise to the level of compelled testimony protected by the Fifth Amendment.
5. When the privilege is applicable, the witness may be compelled to testify or produce documents only if he is granted immunity from the subsequent use against him of both the information he gives and any fruits of that information, the so-called use and derivative use immunity. Before a court may hold a witness in contempt for refusing to answer questions that would otherwise be incriminating, the judge must make it clear to the witness that he is being offered immunity in exchange for his testimony. See, Maness v. Meyers, 419 U.S. 449, 472, 95 S.Ct. 584, 598, 42 L.Ed.2d 574, 591 (1975) (concurring opinion, White, J.). See, also, Stevens v. Marks, 383 U.S. 234, 246, 86 S.Ct. 788, 794, 15 L.Ed.2d 724, 732 (1966):
"* * * [T]he State may not substitute for the privilege against self-incrimination an intricate scheme for conferring immunity and thereafter hold in contempt those who fail fully to perceive its subtleties."
And, further 383 (U.S. 246, note 11, 86 S.Ct. 795, 15 L.Ed.2d 733):
"* * * A 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. Whether the State has met its burden must be measured at the time of the alleged contempt. A declaration that there was a valid immunity uttered for the first time on appeal would come too late."
6. If the court does not offer immunity in exchange for testimony protected by the privilege, then the witness has the right to refuse to testify. See the concurring opinion of Mr. Justice White in Maness v. Meyers, supra. By doing so the witness subjects himself to a possible contempt order, but this contempt order is appealable, thus providing the witness with a means of securing precompliance review. Maness v. Meyers, 419 U.S. 449, 460, 95 S.Ct. 584, 592, 42 L.Ed.2d 574, 584. While a witness may choose to answer when ordered to do so and still preserve his right to object to the subsequent use of the evidence or its fruits in a prosecution, Lefkowitz v. Turley, 414 U.S. 70, 78, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 282 (1973), the fact that the witness may follow this alternative procedure for pressing a Fifth Amendment claim does not preclude him from risking contempt instead. Maness v. Meyers, supra.
It is clear that Doyle had a right to follow the procedure of refusing to respond to the questions and subpoena, thus securing precompliance review of the trial court's rulings on his assertions of privilege. This conclusion follows from the facts that Doyle was neither protected by a statutory grant of immunity nor assured by the trial judge or prosecuting authorities that immunity would be granted to him, and from principles 5 and 6, above. Therefore, if the questions and subpoena were aimed in any part at eliciting information as to which the privilege could properly be asserted, see principles 2 to 4, above, the contempt order is invalid at least as to those questions and requests for documents.
*739 We turn then to an examination of the validity of Doyle's assertion of privilege with respect to each question and each request for documents. The questions and requests can be broken down into several categories for purposes of this analysis. For simplification, the questions and requests for documents are reproduced in full in an appendix to this opinion, but will in the main be referred to in the body of the opinion by their numerical or alphabetical designations.
The first group of questions we consider seeks to elicit from Doyle testimony that could directly tend to incriminate him. For example, an affirmative response to question 6, "Do you engage in advising people as to what their rights are under the law?", would clearly tend to incriminate Doyle under Minn.St. 481.02, which makes unauthorized practice of law a misdemeanor. Questions 20 and 21 also fall into this category.
Most of the questions posed to Doyle do not seek testimony which could directly incriminate him, but, rather, seek testimony which could constitute one link in the chain of evidence tending to connect Doyle with illegal activities. In accordance with principles 2 and 3, above, we conclude that Doyle properly asserted the privilege as to questions 1, 3, 5, 10, 11, 15, 16, 17, 18, 19, and 22. See, Malloy v. Hogan, 378 U.S. 1, 12, 84 S.Ct. 1489, 1496, 12 L.Ed.2d 653, 662 (1964), where the United States Supreme Court held, on the basis of these principles, that such a seemingly innocuous question as whether the witness knew "John Bergoti," was protected by the privilege in the context of that case.
The next group of questions4, 12, 13, and 14all attempt to elicit testimony from Doyle concerning the existence and whereabouts of records and other written documents relating to the association. We conclude on the basis of Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957), discussed with reference to principle 4, that Doyle properly asserted Fifth Amendment privilege as to these questions.
The final category of questions and requests as to which Doyle properly asserted the Fifth Amendment privilege includes Items A, C, and D of the subpoena calling for the production of all books, records, documents, files, and papers relating to Doyle's and the association's activities in divorce counseling. The defect in these requests is that they fail to distinguish between personal records and business records. The principle that a person's "private papers" are shielded from compelled disclosure when they would tend to incriminate him was first enunciated by the United States Supreme Court in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). In contrast, non-private papers are not shielded by the Fifth Amendment, as Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), recently reaffirmed.[2] As explained in the discussion of principle 4, the privilege does extend to documents of an unincorporated association which is so personal in the scope of its membership and activities that it represents the purely personal interests of its constituents.
Although some of the documents requested by these items on the subpoena may not be shielded from disclosure as "private papers" or as records of a "personal association," Doyle cannot validly be held in contempt for refusing to comply with a subpoena calling even in part for privileged documents. See, Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 679, 95 L.Ed. 879, 885 (1951): "One should not be held in contempt under a subpoena that is part good and part bad. The burden is on the court to see that the subpoena is good in its entirety and it is not *740 upon the person who faces punishment to cull the good from the bad."
Summing up thus far, we hold that most of the questions and requests for documents at issue undertook to elicit information of such a nature that Doyle validly invoked the Fifth Amendment privilege in refusing to respond.
As to some questions and subpoenaed items, however, Doyle's refusal to comply with the court's orders to respond was neither justified by the Fifth Amendment privilege nor by any other privilege. Included in this category are questions 7 to 9, dealing with Doyle's previous marital status. Doyle did not object to these questions on the basis of the Fifth Amendment privilege, but, rather, on the basis of irrelevancy. Even if the irrelevancy of the questions were conceded, Doyle would still be subject to a contempt citation for his failure to comply with the court's order to respond. It is well established that an order directing a witness to answer questions must be obeyed, and a failure to obey such order subjects the witness to a contempt citation, even if the order was erroneous or improvident. See, Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 591, 42 L.Ed.2d 574, 582 (1975). The principle that a witness cannot be cited for contempt for refusing to answer questions on the basis of a valid assertion of the Fifth Amendment privilege is one of the few exceptions to the foregoing general rule. Maness v. Meyers, supra; Dike v. Dike, 75 Wash.2d 1, 9, 448 P.2d 490, 495 (1968).
In two other instances Doyle did not have a proper basis to assert the claim of Fifth Amendment privilege. First, regarding question 2, which inquired whether he was licensed to practice law in Minnesota, the fact that Doyle had already admitted in the pleadings that he was not so licensed obviously constituted a waiver of his right to refuse to testify on this matter at the deposition. See, Kaminsky, Preventing Unfair Use of the Privilege Against Self-Incrimination in Private Civil Litigation: A Critical Analysis, 39 Brooklyn L.Rev. 121, 137. Second, Doyle's refusal to produce his income tax returns requested by Item B of the subpoena was not justified by the Fifth Amendment privilege. This conclusion follows from the recent decision in Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976), which held that when a defendant makes incriminating disclosures on his tax returns rather than claiming his privilege against self-incrimination, he is foreclosed from invoking the privilege as to such information when it is later used as evidence in a criminal prosecution.
The orders to respond and the contempt sanction were therefore unjustified with regard to all but 5 of the questions and requests for documents directed to Doyle. It remains to be determined whether the contempt order should be reversed as being based largely on incorrect orders to respond, which, if obeyed, would have deprived Doyle of his privilege against self-incrimination. On appeal from a contempt order, the reviewing court may determine the reasonableness, arbitrariness, or discriminatory character of such order and may reverse or modify the order if it concludes that the trial court abused its discretion in entering that order. 17 C.J.S. Contempt §§ 124(1), 124(5), 125.
One limitation on the trial court's admittedly broad discretion to impose a contempt sanction is that such sanction is appropriate only where the alleged contemnor has acted contumaciously, in bad faith, and out of disrespect for the judicial process. See generally, 17 C.J.S. Contempt §§ 1 to 3. The record is devoid of any indication, as plaintiff acknowledges, that Doyle engaged in any conduct of a contumacious or disrespectful character. This circumstance, together with the fact that the order holding him in contempt apparently was based upon refusal to answer both privileged and unprivileged questions, prompts us to reverse and remand for the trial court's reconsideration.[3]
*741 The contempt order in its present form is vulnerable on yet another ground. The form of the order appears to be one for criminal, rather than civil, contempt. Criminal contempt is conduct directed against the dignity and authority of the court. The sanction is inflicted primarily as punishment for the past disrespectful or contumacious conduct and in vindication of public authority. Civil contempt, in contrast, is failing to obey a court order in favor of the opposing party in a civil proceeding. The sanction is inflicted primarily as inducement for future compliance with the order and in vindication of the opposing party's rights. 17 C.J.S. Contempt §§ 5 to 7; 4 Dunnell, Dig. (3 ed.) § 1703a.
The sanctions for criminal and civil contempt are distinct, consistent with the disparate purposes for which they are imposed. Since a criminal contempt citation is imposed as a punishment for past, completed action by the contemnor, it is absolute and not subject to mitigation if the contemnor alters his future conduct. Since the purpose behind a civil contempt citation is coercive, it is often said that such a citation affords the contemnor the keys to his jail cell in that the sentence is conditioned upon his continued noncompliance with the court order. The contempt order herein, imposing a flat 30-day sentence and not specifying that Doyle could purge himself by complying with the orders to respond, is clearly one for criminal contempt and, hence, inappropriate even as to Doyle's wrongful refusals to respond. However, a properly drawn civil contempt orderthe elements of which we delineated in Hopp v. Hopp, 279 Minn. 170, 156 N.W.2d 212 (1968) would be an appropriate method for effecting compliance with an order to respond.
We reverse the contempt order on the basis of Doyle's Fifth Amendment claim and remand for further proceedings not inconsistent with this opinion. The court may tailor its order to require that Doyle respond to those individual questions and requests which do not infringe upon his Fifth Amendment privilege. A reading of the several opinions in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), indicates, however, that it may be a formidable task, with regard to Items A, C, and D, to separate the privileged personal records from unprivileged, non-private records of defendants.
Reversed and remanded.
TODD, J., took no part in the consideration or decision of this case.
APPENDIX:
Questions put to Mr. Doyle at his deposition and subpoenaed items.
1. Q: Mr. Doyle, are you familiar with the organization known as Divorce Assistance Association, Inc.?
2. Q: Mr. Doyle, are you licensed to practice law in the State of Minnesota?
3. Q: I show you Mr. Doyle what has been marked as Deposition Exhibit 2, and ask you, if you recognize that document?
4. Q: Do you have any books or recordsbank books, deposit books, any books or any other written documents in your possession relating to Divorce Assistance Association or Men's Rights Association?
5. Q: Did you receive any income from Men's Rights Association, Divorce Assistance Association?
*742 6. Q: Do you engage in advising people as to what their rights are under the law?
7. Q: Mr. Doyle, are you divorced?
8. Q: Where were you divorced, Mr. Doyle?
9. Q: Are you currently under any support alimony orders issued by any Courts?
10. Q: Mr. Doyle, will you answer any questions relating to your activities in connection with persons seeking divorces in the State of Minnesota?
11. Q: Have you engaged in counseling persons seeking divorces in the State of Minnesota?
12. Q: Are there such records?
13. Q: Who has custody of any records relating to your services or to the services of Divorce Assistance Association to the general public? Who has such records?
14. Q: Do you have any lists of persons who have paid money, either to yourself or to Divorce Assistance or Men's Rights Association for benefits of services?
15. Q: Do you accept money from persons who respond to ads placed in the paper by yourself in connection with divorce and/or dissolution?
16. Q: Have you placed advertisements in newspapers of general circulation relating to divorce or dissolution?
17. Q: Have you paid for advertising for Divorce Assistance or Men's Rights Association in connection with divorce or dissolution?
18. Q: Do you maintain a list of attorneys whom you think to be acceptable persons to handle divorce cases and dissolution cases in the State of Minnesota?
19. Q: Is Mr. Burke your present counsel and Mr. McDonough your counsel of this morning, are they upon some list of approved attorneys which you maintain for purposes of referring people to them from time to time in connection with divorce and dissolution?
20. Q: Mr. Doyle, have you advised persons of the proper manner of service of process?
21. Q: Have you advised persons of the proper way to respond to divorce and dissolution proceedings?
22. Q: Are any of your expenses paid for by persons who provide money to Divorce Assistance Association or Men's Rights Association?
A. Q: Item 2 [of the subpoena] called for you to produce any books, records, documents and papers relating to your activities with Divorce Assistance Association. Do you have those books and records present?
B. Q: Mr. Doyle, item 7, the subpoena served upon you called you to produce your income tax records for the years '69 through '73. Do you have those tax returns with you?
C. Q: Item 8 [of the subpoena] called for you to produce all other books and papers relating to your activities in marriage, marriage counseling, divorce, dissolution divorce and dissolution counseling, pro se representation and pro se counseling. Have you produced any such items?
D. Q: Item 6 of the subpoena served on you asked forcalled for you to produce all files, records and papers reflecting services rendered by yourself or Divorce Assistance Association to the public. Have you produced such books, records and papers here today?
NOTES
[1] Although denominated in the complaint as a corporation, defendants represented on oral argument that the association is not in fact incorporated. The secretary of state confirms that, although the name was reserved, no incorporation under that name has been filed.
[2] Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), and the subsequent case of Andresen v. Maryland, ___ U.S. ___, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), seem to portend significant departure from the sweeping pronouncements of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), but not in a way affecting decision in this case other than stated in this opinion.
[3] Questions 7 to 9, which should have been answered, plainly referred to extraneous matters and question 2 related to a matter which stood admitted on the pleadings. The most important and relevant question relating to his income tax return has a quite different attribute of good faith. Although we hold that Doyle's refusal to furnish copies of his income tax return was not justified by Fifth Amendment privilege, the status of that privilege was at that time unclear since the United States Supreme Court had not yet rendered its opinion in Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). It is noteworthy that a panel of judges of the Ninth Circuit Court of Appeals had first held that refusal to produce income tax returns was privileged but only following a rehearing en banc was a contrary decision made by a closely divided court. Garner v. United States, 501 F.2d 228 (9 Cir. 1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619295/ | 38 So. 3d 137 (2010)
VAUGHN
v.
FLORIDA PAROLE COM'N.
No. 1D09-5543.
District Court of Appeal of Florida, First District.
June 25, 2010.
Decision Without Published Opinion Certiorari denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619435/ | 152 So. 2d 215 (1963)
Hubert D. SPENCER
v.
KAISER ALUMINUM AND CHEMICAL CORPORATION.
No. 805.
Court of Appeal of Louisiana, Fourth Circuit.
April 1, 1963.
Rehearing Denied May 6, 1963.
Certiorari Refused June 14, 1963.
*216 Thomas F. Jordan, New Orleans, for defendant-appellant.
Dodd, Hirsch, Barker & Meunier, Wilfred H. Boudreaux, New Orleans, for plaintiff-appellee.
SAMUEL, JOHNSON and HALL, JJ.
SAMUEL, Judge.
This is a suit for workmen's compensation. Plaintiff seeks to recover benefits under the act in the amount of $10.00 per week for 200 weeks for an alleged 10% permanent loss of use of an arm, which in turn allegedly resulted from the loss of a portion of an index finger, together with penalties and attorney's fees. The trial court judgment allowed compensation as prayed from the date of the accident and also awarded penalties, 12% on all overdue payments, and attorney's fees in the sum of $1,000.00, together with legal interest from judicial demand on all past due installments and costs. Defendant has appealed.
The accident occurred on June 30, 1960 during the course and scope of plaintiff's employment by the defendant as an automotive mechanic. He sustained an accidental, crushing injury to the index finger of his right hand resulting in the amputation of a portion of the distal phalanx, specifically a loss of 5/16 of an inch of the distal phalanx of the right index finger. He was placed on light work for approximately five weeks and paid his regular salary during that time, thus receiving the full amount of his regular salary at all times. He returned to full duty on August 5, 1960. Although he testified that he has some "numbness" in the tip of the injured finger, there is no dispute over the fact that plaintiff has been able to fully perform his job without pain since returning to full duty. At the time of the accident plaintiff worked a 5 day, 40 hour week for which he received $3.074 per hour, or $122.96 per week.
Four medical experts testified at the trial, Dr. Edward T. Haslam, who was called by the plaintiff, and Drs. George D. Berkett, William A. Roy and Wendell F. Lienhard, all three of whom testified for the defendant. Dr. Lienhard was the chief physician for defendant at the Chalmette Plant where plaintiff was employed. He saw plaintiff only in an administrative capacity and his testimony is not here material from a medical standpoint.
Dr. Roy, a general surgeon, was the treating physician. Plaintiff's counsel objected to this doctor's testimony on the grounds that copies of his medical reports were not furnished to counsel until the morning of the trial even though written requests had been made for such reports several months prior thereto. We deem it unnecessary to pass upon the objection in view of our acceptance of the trial court's finding of fact relative to the percentage of disability, which finding is favorable to the plaintiff. However, in connection with the assessment of penalties and attorney's fees it is proper to note that Dr. Roy was of the opinion that plaintiff had suffered no residual disability as a result of the injury to his finger.
Dr. Haslam, a specialist in the field of orthopedic surgery, saw plaintiff once and then on June 9, 1961. His examination revealed a good pad over the end of the amputation, which was insensitive to pin prick or touch, and a full range of motion of the finger joints with no evident circulatory changes. The main impairment to the function of the hand as a result of the amputation was in pinch and in three point prehension, the latter being described by the doctor as the usual maneuver involved in picking up small objects by using the thumb, the index finger and the long finger. Based upon a guide published in the February 15, 1958 edition of the Journal of the American *217 Medical Association, he was of the opinion that the plaintiff had a 40% partial disability of the injured index finger which resulted in an 11% disability of the hand and a 10% disability of the upper extremity.
Dr. Berkett, also an orthopedic surgeon, saw the plaintiff once and then on July 31, 1961. He found that the first joint retained full motion and was of the opinion that plaintiff did have some sensation in the area of the amputation. He felt that plaintiff had suffered a 10% permanent partial disability of the finger based on a loss of function in that finger as a result of the shortening to that extent. Using the same American Medical Association article as a guide as did Dr. Haslam, he felt that the 10% disability of the finger would result in a 2.5% disability of the hand and a 2.2% disability of the arm.
Defendant contends: 1st, plaintiff has suffered no compensable loss under the act; 2nd, alternatively in the event it should be found that a compensable loss has been suffered, compensation should be based on the proper percentage of loss of use of the finger and not of the arm; and 3rd, penalties and attorney's fees should not have been awarded. Should it be held that plaintiff has suffered a compensable loss, there is also a dispute as to the amount of credit to which defendant is entitled for wages paid to plaintiff for the 5 week period during which he worked on light duty and a dispute as to whether weekly compensation benefits should be computed on the basis of a five day or six day week.
In addition to LSA-R.S. 23:1202, the pertinent part of which sets maximum compensation at $35.00 per week, the portions of the workmen's compensation act which we must consider are set out under LSA-R. S. 23:1221 (4) and read as follows:
"(4) In the following cases the compensation shall be as follows:
* * * * * *
"(b) For the loss of a first finger, commonly called the index finger, sixty-five per centum of wages during thirty weeks.
* * * * * *
"(f) For the loss of an arm, sixtyfive per centum of wages during two hundred weeks.
* * * * * *
"(k) The loss of the first phalanx of the thumb or big toe, or two phalanges of any finger or toe, shall be considered to be equal to the loss of onehalf of such member, and the compensation shall be one-half of the amount above specified.
* * * * * *
"(o) In all cases involving a permanent partial loss of the use of function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.
"(p) In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and as in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-five per centum of wages during one hundred weeks."
We are of the opinion that plaintiff has suffered a compensable loss under the act. While he has not sustained one of the specific losses set out under LSA-R.S. 23:1221(4), under our jurisprudence the plaintiff in a workmen's compensation suit who suffers both disability and loss of use of a bodily member may recover either for *218 the disability or the loss, whichever would produce the greater amount of compensation. Tyler v. Great American Indemnity Company, La.App., 116 So. 2d 717; Jackson v. Steel Fabricators, La.App., 90 So. 2d 397.
However, such recovery must relate to and be based upon the specific provision or provisions which refer to the loss of the particular bodily member injured, here the index finger. Subsection (o), which provides for cases involving a permanent partial loss of the use or function of the bodily members mentioned in the preceding subsections, is here applicable. Also applicable are subsections (b) and (k), which respectively provide for compensation for the loss of the index finger and for the loss of two phalanges of any finger, and not (f), as contended by the plaintiff, which provides for compensation for the loss of an arm.
Accepting the opinion of Dr. Haslam, as the trial court did, that plaintiff has suffered a 40% permanent partial disability (or loss of the use or function) of the index finger, we hold that he is entitled to recover 40% of 65% of wages during 30 weeks. This award is based upon the actual disability and is computed as provided in subsection (o). The case of Jones v. Hunter Co., La.App., 68 So. 2d 240, is similar to the instant case in many respects and comes to the same conclusion as we reach here.
As we have stated above, at the time of the accident plaintiff worked 8 hours a day and 5 days a week, 40 hours each week, for which he received $3.074 per hour. His daily salary was $24.59. We must use the six day week in calculating his weekly wage for the purpose of determining compensation. Young v. Old Colony Insurance Company, La.App., 150 So. 2d 892; Brown v. Benton Creosoting Co., La.App., 147 So. 2d 89; Hoffman v. City of New Orleans, 240 La. 943, 125 So. 2d 774; Carrington v. Consolidated Underwriters, 230 La. 939, 89 So. 2d 399; Rylander v. T. Smith & Son, Inc., 177 La. 716, 149 So. 434. Therefore he is entitled to weekly benefits based upon the daily wage of $24.59 multiplied by six or $147.54. He is entitled to 40% of 65% of that weekly wage of $147.54 during 30 weeks under the quoted subdivisions (b) and (o). But 40% of 65% of $147.54 is equal to $38.36 which is in excess of the $35.00 maximum provided by LSA-R.S. 23:1202. Therefore, he must receive compensation at the rate of $35.00 per week for a period of 30 weeks, or a total sum of $1,050.00.
Plaintiff received $614.80 in wages paid during the five week period he was on light duty. Under our jurisprudence an employer is entitled to a maximum credit of $35.00 per week for each week he pays gratuitous wages to an injured employee; he cannot receive a credit in excess of $35.00 per week even though the amount of weekly wage so paid actually is in excess of $35.00. Delouche v. City of Monroe, La. App., 84 So. 2d 259; Daigle v. Higgins Industries, La.App., 29 So. 2d 374; Annen v. Standard Oil of New Jersey, La.App., 28 So. 2d 46. Therefore, defendant is entitled to a credit of $35.00 for five weeks, or $175.00.
We next address ourselves to plaintiff's claim for penalties and attorney's fees under LSA-R.S. 23:1201.2, which provides for payment of such claims where the employer is not covered by insurance and where the failure to make such payment within 60 days after receipt of notice is found to be arbitrary, capricious or without probable cause.
Plaintiff was injured on June 30, 1960 and thereafter remained on light duty until he returned to his regular duties on August 5, 1960. He received his full wages at all times. His treating physician, Dr. Roy, was of the opinion that plaintiff suffered no residual disability. He did not make a demand for compensation until June 1, 1961, one month less than a year after the accident. At the time of that demand he had not been examined by Dr. Haslam and had no medical opinion to support his claim. Dr. Haslam made his examination on June 9, 1961. Dr. *219 Berkett made his examination on July 31, 1961. This suit was filed on August 8, 1961. Therefore, at the time plaintiff returned to his regular duties and for more than ten months thereafter, defendant had only one medical report, from a competent physician, to the effect that there was no loss of use or function; nor was there any indication during that time that plaintiff claimed any further compensation. In addition, plaintiff never sustained any loss or even diminution of his regular wages.
Under these circumstances, in view of the fact that without being arbitrary or capricious the employer may refuse to pay compensation when it relies upon competent medical advice (Bertrand v. Patterson Truck Line, La.App., 138 So. 2d 663; Vidrine v. American Employers Insurance Company, La.App., 129 So. 2d 288; Luce v. New Hotel Monteleone, La.App., 106 So. 2d 121; Jones v. Employers Mutual Liability Ins. Co. of Wis., La.App., 114 So. 2d 602; Martin v. Great American Indemnity Company, La.App., 75 So. 2d 415; Chamberlin v. Maryland Casualty Co., La.App., 75 So. 2d 366) and in view of the fact that the act is primarily designed to insure the payment of weekly compensation to an employee so that he may subsist during his period of disability (see Walters v. General Accident & Fire Assur. Corp., Ltd., La.App., 119 So. 2d 550; Smith v. Houston Fire & Casualty Insurance Co., La.App., 116 So. 2d 730; Guillory v. Coal Operators Casualty Company, La.App., 95 So. 2d 201; Duplechien v. States Exploration Company, La.App., 94 So. 2d 460; Blackwell v. Wimberly, La.App., 53 So. 2d 814; Goodman v. Hillyer, Deutsch, Edwards, Inc., La.App., 49 So. 2d 60), we are of the opinion that penalties and attorney's fees should be disallowed.
For the reasons assigned, the judgment appealed from is amended by decreasing the compensation benefits which defendant is therein condemned to pay to plaintiff from $10.00 per week for a period of 200 weeks to $35.00 per week for a period of 30 weeks, subject to a credit of $175.00 for compensation paid and by entirely eliminating from said judgment the awards of penalties of 12% on all overdue compensation payments and attorney's fees in the sum of $1,000.00. As thus amended, and in all other respects, the judgment appealed from is affirmed; costs of this appeal to be paid by the defendant-appellant.
Amended and affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737670/ | 88 Wis. 2d 323 (1979)
276 N.W.2d 295
M & I MARSHALL & ILSLEY BANK, Plaintiff-Respondent,
v.
PUMP, and another, Defendants-Appellants:
CROWN LIFE INSURANCE COMPANY, Third-party Defendant-Respondent.
No. 76-536.
Supreme Court of Wisconsin.
Submitted on briefs February 28, 1979.
Decided March 27, 1979.
*325 For the appellants the cause was submitted on the brief of Sam Pump, attorney, and Francis X. Krembs, of counsel, both of Milwaukee.
For the plaintiff-respondent and third-party defendant-respondent the cause was submitted on the brief of James A. Urdan, David E. Jarvis, Dwight L. Nye and Quarles & Brady of Milwaukee.
CONNOR T. HANSEN, J.
The third party action is based upon long-term financing commitments the appellants obtained from Crown Life Insurance Company (hereinafter Crown) for a 92-unit, four building apartment project to be constructed by the appellant at Menasha, Wisconsin. Construction financing for the project was provided by Richter-Schroeder Company (hereinafter Richter), a mortgage banking firm and a loan correspondent of Crown. Richter was acquired by M & I Marshall & Ilsley Bank (hereinafter Bank) while the construction was in progress.
In two financing commitments dated January 21 and 22, 1974, Crown agreed to lend appellants $1.16 million secured by two first mortgages for $440,000 and $720,000. These commitments provided that they would be null and void if the transaction was not completed within 253 days, unless extended in writing, at Crown's option. The commitments required, among other things, as conditions precedent, a title insurance policy without exceptions, payment of outstanding taxes and completion *326 in strict compliance with the plans and specifications, including landscaping.
The appellants were unable to complete the project by the time the commitments expired in October, 1974, and requested an extension. At the request of the appellants, Crown ultimately agreed to four successive extensions of the commitments, first to December 15, 1974, then to April 15, 1975, then to July 15, 1975, and finally to a one-month extension to August 15, 1975.
During the period of the extensions, the appellants needed funds in addition to the original construction financing for the project. As a result, in June, 1975, the Bank agreed to advance appellants an additional $100,000, secured by a $250,000 second mortgage. This mortgage also covered a $116,000 rental holdback.
Appellants and Richter began preparations for closing in August, 1975, even though work continued on the project. The architect's certificate of completion was signed August 7th, but the project engineer indicated that this referred to the building itself and not to "odds and ends," such as hardware, carpeting, appliances or cleanup. He further indicated that some of the incomplete items, landscaping among them, were not included in the building plans. He admitted that building code violations existed the day he signed the completion certificate.
The closing did not occur because a title policy had not been obtained and the project was not completed. An inspection of the project on August 13th by Tom Richter showed that although the buildings were structurally finished the following work remained to be done:
1. Installation of appliances, including 28 refrigerators, three stoves and two dishwasher front panels;
2. installation of carpet padding in 35 apartments, and carpeting in 53 apartments;
3. installation of numerous electric fixtures, including those in 31 bathrooms and 21 hallways;
*327 4. installation of numerous doors and door hardware;
5. removal of construction materials from underground garages and installation of garage doors and electric door openers;
6. fifty percent of the exterior painting and installation of some roof flashing;
7. the landscaping; and
8. correction of a number of building code violations, including the addition of fire-resistant materials and doors to the furnace rooms and on the basement stairs in each of the four buildings and the installation of a new ventilating system in the underground parking area in each building.
The building had 20 tenants on August 15th and approximately five more were due to move in.
A title insurance policy was not obtained because construction lien claims had been filed and potential unfiled claims existed. The appellants were also delinquent in real estate taxes.
The first two construction loans had been completely disbursed by June 15, 1975. Advances and draw requests being processed on August 15, 1975, depleted the $100,000 loan from the Bank. Crown's last extension of the commitments expired August 15, 1975. Richter attempted to get a further extension from Crown. However, on September 4, 1975, Crown advised Richter that the commitments would not be reinstated. The Bank then brought this foreclosure action in which the appellants counterclaimed against Crown seeking specific performance of the long-term financing commitments.
In an attempt to show that the commitments' terms could be met the appellants presented evidence at trial that the title company had agreed to provide a policy insuring that Crown's mortgages would have priority status over the filed construction liens if those liens were bonded. A bonding company representative testified *328 that they agreed to bond the liens but were never given a list of filed liens. However, the testimony of the title company representative, Alan Dolenshek, was contradictory as to whether a policy could be issued which both insured over the bonded filed liens and eliminated the standard unfiled claim exception. Dolenshek did indicate that the liens could have been bonded for 125 to 150 percent of the amount already filed plus 125 percent of the undetermined amount of the unfiled claims. He admitted he didn't know if such a policy would be acceptable to Crown, but said Crown did require a waiver of the unfiled lien exception. A. John Richter testified that generally investors would not accept a title insurance policy with an exception for unfiled liens. There was no evidence that appellants could, in fact, provide such a bond or pay the liens.
The appellants also attempted to show that they understood Crown was extending the commitments on a day-to-day basis after August 15th. A. John Richter actually testified that any mention of short-term or day-to-day extensions referred to the time period prior to August 15th. He said that after August 15th there was no formal agreement or extension, only an informal understanding that if the project was completed within a few days that Crown would close. The project was not so completed. Richter indicated that an escrow of $25,000 to complete the carpeting after August 15th would be acceptable, but that they could not consider adding the remaining unfinished items to that escrow. No such escrow was tendered or proof offered that appellants were able to provide an escrow.
Goldman, one of the appellants, testified that they had several lines of credit on which to draw to pay the liens as soon as disputes regarding their amounts were settled. He said that according to their estimates on September 4th approximately $96,000 was needed to pay off the outstanding liens and install the carpeting. Pump *329 testified that he calculated that they would need about $172,000 to close, including the $116,000 rental holdback, $8,400 for taxes and $48,000 to be escrowed to cover unfinished items. He said he thought they had $165,000 remaining on the $250,000 second mortgage and the $11,600 standby fee due from Crown at closing. On cross-examination he admitted the second mortgage balance was reduced after August 15th by draw requests.
The accuracy of these figures is challenged by respondents. The 10 percent rental achievement holdback was a provision added by Crown in the extension to July 15th. This sum was to be held back by Crown out of the two mortgages until rental reached 85 percent of stabilized rents. The $11,600 standby fee would be refunded by Crown at closing, but Richter's figures showed that after closing costs were deducted, including interest, tax escrow and attorney's fees, appellants would owe $6,650 over and above the $11,600.
The trial court concluded that time was not of the essence in this transaction and in so doing recognized the general rule that when time is not of the essence, the appellants would be entitled to notice of default and a reasonable time in which to perform.
However, in this case, where the appellants had been granted four extensions and no showing had been made that performance within a reasonable time was practically possible, the trial court concluded notice was not required because it would be a mere formality. To support this conclusion the trial court found that the real estate taxes were in arrears, the cost to complete the project was in excess of $10,000 and acceptable title insurance could not be provided and therefore that Crown was relieved of the commitments after they expired on August 15, 1975. The trial court also found that these breaches were substantial and were of the very essence of the financing commitment agreements.
*330 Although, as previously stated, this appeal is from the judgment of foreclosure, the issue presented relates solely to the judgment of dismissal of the appellants' counterclaim against Crown.
The issue is whether the appellants were entitled to notice fixing a reasonable time for performance after August 15, 1975, before Crown could be relieved of the obligation of the prior commitments. We are of the opinion the trial court correctly decided the issue when it entered judgment dismissing the appellants' counterclaim against Crown.
[1]
The parties agree on the general rule as stated in Stolper Steel Prod. v. Behrens Mfg. Co., 10 Wis. 2d 478, 486, 487, 103 N.W.2d 683 (1960):
"The rule of law which we deem governs this case is set forth in 1 Black, Rescission and Cancellation (2d ed.), p. 623, sec. 219:
"`Even where time is made the essence of the contract, this provision may be waived by the party for whose benefit or protection it is inserted, either expressly or by extending the time for payment or performance or by granting indulgence to the other party in this regard; and when such a waiver has been made, he cannot arbitrarily and summarily declare a forfeiture of the contract for delay, but must first demand payment or performance and give the other party a reasonable time and opportunity, after such demand, to comply.'
"This same principle is stated in 17 C.J.S., Contracts, p. 918, sec. 435, as follows:
"`So where time for performance has been extended with no intention manifested to hold to literal performance, or a provision wherein time is made of the essence is waived, notification and a reasonable time for compliance are necessary.'"
This court has recognized the rule both where a time is of the essence provision has been waived and where timely performance was not required by the contract. *331 Stolper, supra, and Haislmaier v. Zache, 25 Wis. 2d 376, 130 N.W.2d 801 (1964). When Crown granted the extensions requested by the appellants, none of them stated that time was of the essence. The respondents do not seriously challenge the finding of the trial court that time was not of the essence. Instead, they direct their attention to the exception relied upon by the trial court in its determination that under the facts of this case no notice was necessary.
The greater weight of the evidence in this case supports the finding that the appellants were in substantial default. Certainly it cannot be said that such finding is against the great weight and clear preponderance of the evidence. The original completion date requirement in Crown's commitments was October, 1974. At the request of the appellants, Crown gave them until August 15, 1975, to perform. They did not so perform. Ochiltree v. Kaiser, 20 Wis. 2d 191, 121 N.W.2d 890 (1963).
[2, 3]
The exception to the general rule is concisely set forth in 17A C.J.S., Contracts, sec. 435 (1963), as follows:
"Failure to perform. If a party means to rescind a contract because of the failure to the other party to perform it, he should give a clear notice of his intention to do so; and where time is not of the essence of the contract he must give the other party a reasonable time thereafter to comply, unless the contract itself dispenses with such notice or unless notice becomes unnecessary by reason of the conduct of the parties. However, notice of intention to rescind is necessary only where the party has merely delayed performance, and not where he has abandoned the contract, or treated it as terminated, or where he has refused to perform; nor does the rule apply where fraud in the procurement of the contract is alleged.
"Likewise, where time for performance has been extended with no intention manifested to hold to literal performance, or a provision wherein time is made of the essence is waived, notification and a reasonable time *332 for compliance are necessary. Where performance as contemplated is no longer possible, a party may rescind without permitting further time for performance."[1]
Also at 17A, C.J.S., Contracts, sec. 478 (b), it is stated:
"A demand for a performance is unnecessary where it is apparent that it would be unavailing or constitute a useless formality, . . . Thus a demand for performance is unnecessary where there has been a prior absolute refusal or repudiation, or where the party from whom performance is due has placed it out of his power to perform, or has demonstrated his inability to perform, or where demand has been waived."
Time and additional funding were necessary for the appellants to complete this building project. There is nothing in the record from which an inference could be drawn that the appellants had refused to complete the building or that it was physically impossible to complete it. The difficulty is that after the appellants had been accommodated by having the original commitments extended four times, they had been unable to complete the project or provide acceptable title insurance.
[4]
The trial court evaluated the breach by enumerating the construction and work that remained to be done under the terms of the commitments. This unfinished construction work, when considered with the facts that this was a contract to provide long-term financing and that the appellants were already almost a year overdue in completing the project, had been forced to obtain additional financing during this period, were delinquent in real estate tax payments, were disputing the amount owed on lien claims, and were unable to provide acceptable title insurance, amply supports the finding of the trial court that the appellants were in substantial default. *333 The appellants were well aware of the fact that the last extension of the commitment would expire on August 15, 1975, and that their last extension had been limited to one month.
[5, 6]
The appellants contend that they had substantially performed the construction project. But this is not the issue. The issue is whether they had substantially breached the terms of the financing commitment contract and Crown was thereby relieved of giving them notice that it would not extend the agreement a fifth time and afford appellants a reasonable time to complete the project. A party has substantially performed if he has met the essential purpose of the contract. Id. In Appleton State Bank v. Lee, 33 Wis. 2d 690, 148 N.W.2d 1 (1967), the court said factors to be considered included the character of the promised performance, the purposes it was expected to serve and the extent to which nonperformance has defeated those purposes.
[7]
This is a financing contract, where the closing actually begins a long-term relationship between the parties rather than ending one. Circumstances such as those presented here do not require the giving of a notice that the commitment will not be further extended or that the appellants be given additional time to comply with the contract provisions. This is not a situation in which a short additional extension of time would result in the transfer of a building with no further financial involvement of the parties. In that situation, where the court need only compute the completion costs and award damages, the delay in completion might not be considered a material breach. Here, when the project was finally completed and evidence of acceptable title available, Crown would be obligated to pay $1.16 million and receive repayment over an extended period of time. The *334 long delay and inability to perform clearly present a material breach.
[8]
The trial court made detailed and complete findings of fact which support its conclusions of law. The findings of fact will be sustained unless they are against the great weight and clear preponderance of the evidence. Stevens Construction Corp. v. Carolina Corp., 63 Wis. 2d 342, 359, 217 N.W.2d 291 (1974). The findings here are not against the great weight and clear preponderance of the evidence and the judgment is affirmed.
By the Court. Judgment affirmed.
DAY and COFFEY, JJ., took no part.
NOTES
[1] See: Guentner v. Gnagi, 258 Wis. 383, 391, 392, 46 N.W.2d 194 (1951). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2194021/ | 176 Cal. App. 2d 514 (1959)
C. FRED SMITH, Appellant,
v.
JIM RASQUI et al., Respondents.
Civ. No. 6268.
California Court of Appeals. Fourth Dist.
Dec. 21, 1959.
Preston Turner and Joseph B. Geisler for Appellant.
Stuart McHaffie and George L. Spence for Respondents.
MONROE, J. pro tem. [fn. *]
Plaintiff as the owner of a subdivision lot in the City of Anaheim, brought this action for declaratory relief and to obtain a judgment to the effect that the lot owned by him was not subject to restrictions created by written declarations of restrictions and reservations filed in the office of the county recorder of Orange County in February, 1953. Plaintiff sought further an adjudication that such declaration be reformed and modified by excluding therefrom the lot owned by him and holding that by reason of changed conditions the restrictions set forth therein were no longer enforceable. Plaintiff named many owners of lots in the subdivisions as parties defendant and sought an injunction against interference with plaintiff's use of his property for business purposes. The Department of Veterans Affairs and the Greenwich Savings Bank filed answers denying the allegations of the complaint and putting plaintiff on proof. The defendants Birkinshaw, owners of a building site adjacent to plaintiff's, filed answer and contested the action. It was alleged in substance that the plaintiff had been a party to the creating of the declaration of restrictions; that he was a principal in the subdividing and selling of the property; and that he and his agents had represented to buyers therein that all of the lots contained in the subdivision were to be so restricted as to be used for residential purposes only and alleged generally that plaintiff was estopped to question the validity of the restrictions.
As the result of a trial, the issues were found against the plaintiff and a judgment was rendered by which it was adjudged that plaintiff's property was subject to the conditions, *517 restrictions and reservations contained in the document of record; that any use other than as a residential lot would be a violation and breach of said restrictions and reservations; and found that the plaintiff should be enjoined from allowing any commercial use thereon. From this judgment the plaintiff appeals and attacks the judgment of the lower court upon the grounds that the findings and judgment are not supported by the evidence and are contrary to law. It is also urged that the court committed reversible error in admitting testimony alleged to be hearsay.
No brief has been filed on behalf of any of the respondents. We have therefore felt obliged to examine the record carefully to ascertain whether the judgment should be disturbed.
The appellant urges that the findings and judgment to the effect that the conditions, restrictions and reservations are valid and binding as to the property of plaintiff and appellant are unsupported by the evidence and are contrary to law.
In this connection, the appellant relies upon Murry v. Lovell, 132 Cal. App. 2d 30 [281 P.2d 316]. In that opinion, the court reviewed the decisions in California and relied particularly upon the rules laid down in Werner v. Graham, 181 Cal. 174 [183 P. 945]. [1] These decisions are to the effect that although a subdivider may follow the method and practice of recording a declaration of reservations and restrictions setting forth in detail the restrictions to be imposed and the enforceability thereof by the purchasers and owners of lots in the subdivision as against the owners of other property therein, nevertheless, such plan of restrictions does not become binding and enforceable and may not be held to subject the purchasers of property to actions to enforce the same unless those restrictions be carried into the deeds of conveyance to purchasers. The cases cited deal with a situation where a detailed plan of restrictions and reservations had been set forth in declarations thereof, duly recorded, but that the owner of the subdivision conveyed the property by deeds which failed to subject the property thus conveyed to the restrictions by appropriate provision.
[2] There is of course sound reason for the rules laid down in these decisions. Restrictions of this character constitute a charge upon the fee title of the property conveyed and the recorded plan of restrictions does not become a mutually enforceable one as between the property owners except by their acceptance of deeds of conveyance subject to the plan of restrictions. In substance, it is held that the fact that the *518 parties contemplated a plan of restrictions does not affect the fee title to real estate unless properly carried out by conveyances subject to such restrictions and reservations.
In the instant case, the property comprising the subdivision was evidently owned by a limited partnership known as "The Broadway Center Company." The declaration of conditions, restrictions and reservations recorded in February, 1953, sets forth a comprehensive plan of restrictions, declares the intent that the reservations and restrictions shall run with the land and shall be for the benefit of all lots in the subdivision and shall be mutually enforceable. It is there provided that lots in the subdivision shall be improved with single-family one-story dwellings and that no buildings other than residences and the appurtenant garages are to be allowed.
It appears that the conveyance from the Broadway Center Company to the plaintiff was a deed of conveyance without any reference to the recorded declaration of restrictions and does not by its terms purport to subject the property conveyed to any restrictions or reservations. The same is true with respect to deeds introduced in evidence conveying lots from The Broadway Center Company to other purchasers. The deed to the defendants Birkinshaw was not introduced in evidence but it would appear from a reading of the transcript that in all probability no such provision was contained in that deed. It would appear therefore entirely probable that the same situation with respect to carrying into effect the plan and intent to create restrictions was subject to the same lack of effectiveness as those in Murry v. Lovell, supra. [3] In any event, the burden of proof was upon the parties seeking to enforce the restrictions to establish that the necessary legal steps had been taken to render them effective and binding and mutually enforceable.
It would not necessarily follow, however, that defendants would be entitled to judgment as a matter of law. It is entirely possible that a factual situation might be shown which would establish that plaintiff was estopped to deny the validity of the instructions or to deny that his property was subject thereto.
The lower court found that the appellant was "a principal of Broadway Center Company"; that he at all times knew the burdens of such restrictions and reservations; that same prohibited any structure on the lots except single-family dwellings and that plaintiff "through his duly authorized agents" made representations to the effect that the lot eventually conveyed to plaintiff was subject to the restrictions. *519
It appears that plaintiff was the president of a corporation known as United Western Builders, Inc., which corporation was one of the partners in the limited partnership, and it further appears that plaintiff as such president signed the declaration of restrictions. [4] There is some evidence in the record to the effect that representations concerning the restrictions were made to the purchasers of lots in the subdivision by salesmen acting for the Broadway Center Company. It is a question of fact from all of the evidence as to whether or not the plaintiff as an individual would be estopped by statements made by the salesmen for the Broadway Center Company. (Llewellyn Iron Works v. Abbott Kinney Co., 172 Cal. 210 [155 P. 986]; Nelson v. Nelson, 131 Cal. App. 126 [20 P.2d 995]; Hay v. Allen, 112 Cal. App. 2d 676 [247 P.2d 94].)
Other matters would necessarily enter into a determination as to whether a plaintiff is estopped to deny that his property is subject to the restrictions and reservations. [5] It is to be remembered that estoppel rests upon sound equitable principles and the courts are inclined to exercise great care in determining whether it is applicable. [6] One of the essential requirements is that the estoppel must be mutual and reciprocal and that either both parties must be bound or neither party is bound. These principles have been carefully discussed in Wilmans v. Weissman, 38 Cal. App. 2d 693 [102 P.2d 382].
[7] As applied to the case at bar, it would appear that the holders of title to lots in the subdivision could not enforce the restrictions and reservations as against another property owner unless there be established a mutually binding and enforceable set of restrictions. Insofar as the record before this court is concerned these reservations and restrictions are not legally binding upon the property of Mr. and Mrs. Birkinshaw which is adjacent to plaintiff's property. In such situation, it is very doubtful that a court of equity could properly enforce the restrictions as against the plaintiff.
[8] Another element essential to a determination of whether estoppel be established is the equitable principle of balancing the equities. The trial court found that plaintiff's lot was not properly suitable for residential purposes and never had been and that its highest and best use was for business purposes. The court found, however, that the restrictions were nevertheless valid and binding. [9] Under the rules laid down in Morgan v. Veach, 59 Cal. App. 2d 682 [139 P.2d 976], in determining whether a party to the litigation *520 is estopped with reference to restrictions, the court may properly compare and weigh the damage and loss to the party estopped as against the damage and loss to the opposing party. [10] Under some circumstances, a willful and intentional act may be held to estop the person to deny the restrictions even though they be onerous and result in damage to his property. [11] Also, there is involved the question as to whether equity will by estoppel enforce restrictions detrimental to the property of the person against whom the estoppel is enforced where a reasonable award of damages would do complete equity.
[12] At the trial some questions were asked concerning the circumstances surrounding the transaction in which the lot in question was conveyed to plaintiff, and evidence with regard thereto was ruled out. In determining the equities of the parties this evidence might well be essential.
We have mentioned these various questions, the determination of which would appear to be necessary to a proper determination of the issue as to whether plaintiff was estopped to deny that his property was subject to the restrictions. An examination of the record indicates that these questions were not considered and were not determined upon the trial. The judgment appears to have been based largely upon the finding that plaintiff's property was subject to the restrictions and reservations set forth in the recorded declaration and it would appear that the trial court inferentially found that plaintiff was estopped to assert that his property was erroneously or inadvertently included in the description of the subdivided property. In view of these uncertainties, and the fact that the findings are in part at least unsupported by the evidence and contrary to law, a new trial of the action is necessary.
Complaint is made that evidence of statements made by salesmen to purchasers of property in the subdivision were hearsay and not properly admitted in evidence. Whether this evidence is properly admissible depends upon the determination of the question, upon a more thorough examination of the facts, as to whether the acts of the salesmen were imputable to plaintiff. It may be that upon a reexamination of the facts it will be determined by the trial court that the restrictions have no legal or binding effect and a determination of the admissibility of this testimony will be unnecessary.
Judgment reversed.
Griffin, P. J., and Mussell, J., concurred.
NOTES
[fn. *] *. Assigned by Chairman of Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2396969/ | 699 S.E.2d 22 (2010)
SPONSLER
v.
SPONSLER.
No. S10F0299.
Supreme Court of Georgia.
June 28, 2010.
Reconsideration Denied July 26, 2010.
*23 Angela B. Dillon, Brown & Gill, Norcross, for appellant.
James E. Tramel, III, Lilburn, Margaret G. Washburn, Lawrenceville, for appellee.
MELTON, Justice.
Following a bench trial, Jeffery Sponsler (Husband) and April Sponsler (Wife) were divorced pursuant to a Final Judgment and Decree of Divorce entered on June 16, 2009. The final decree was based, in part, upon various terms that Husband and Wife had agreed to at the final hearing on their divorce, and based on findings made by the trial court after considering the evidence presented by the parties on the remaining contested issues at the hearing. Husband filed an application to appeal with this Court, contending that the trial court erred by making the parties' purported settlement agreement part of the final divorce decree, and that the trial court erred in denying his request for attorney fees. We granted Husband's application for discretionary appeal in this divorce case pursuant to this Court's Family Law Pilot Project, under which this Court will grant all non-frivolous discretionary applications seeking review of a final decree of divorce. Maddox v. Maddox, 278 Ga. 606, n. 1, 604 S.E.2d 784 (2004). For the reasons that follow, we affirm.
The record reveals that, prior to the marriage, Husband owned a home and had financial assets including a 401(k) and several bank accounts. During the marriage, Husband and Wife purchased a marital home and a bar, the Will Henry Tavern (the "Tavern"). The couple did not have children. After twelve years of marriage, Wife filed a petition for divorce in the Superior Court of Gwinnett County on August 15, 2007.
At the start of the February 19, 2009 bench trial to resolve the divorce, Husband called an expert witness to testify about the value of the Tavern. After the expert's testimony, the court took a short recess. Based on discussions between the parties and the trial judge during the recess, the parties indicated that they had reached an agreement as to some of the issues in their divorce. Following the recess, both Husband and Wife testified under oath that they "underst[ood that] there have been pretrial conferences and settlement negotiations that [were] about to [be] set forth on the record before the court." The trial court then asked the parties "who wants to put the agreement at this point on the record," and Wife's attorney volunteered to do so. While Wife's attorney began to state the terms of the agreement, the trial court emphasized that, although it was in the parties' best interests to settle:
if either one of [them] feels like [they]'ve been forced to enter into this agreement or [they] didn't enter into this agreement, [they] need[ed] to say something now before [Wife] put[] it all in the record because this was not a ruling by the Court and th[e] order w[ould] reflect this was an agreement by the parties.
Neither party objected when the judge affirmed that it was her understanding that there was an agreement between the parties, and at no time during Wife's recitation of the parties' agreement did Husband object or even suggest that he did not think there was a binding agreement as to the items mentioned. After the agreed-to terms had been stated on the record, Wife took the stand and *24 reaffirmed that she understood the terms of the parties' agreement. The court then took evidence as to the remaining contested issues, which involved the parties' 2007 taxes, a Fidelity stock account, some personal items, and furniture.
After presenting evidence on the 2007 taxes and the Fidelity account, the parties took a ten-minute break to compile lists of the personal property that each of them wanted to keep. The court guided the parties through a division of the assets. Afterwards, the judge asked, "Anything else that hasn't been divided?" to which Husband's attorney replied, "No, ma'am."
Following the bench trial, Wife's attorney was supposed to prepare a final order that would be submitted by the parties to the trial court by April 1, 2009. In the meantime, the parties submitted requests for attorney fees to the trial court by letter brief. The April 1 deadline for submission of an order passed, and the parties never submitted a final order to the trial court.
On June 16, 2009, the trial court entered a Final Judgment and Decree of Divorce based upon its review of the record of the agreed-to terms of the settlement, and based upon the evidence that had been presented on the remaining contested issues at the bench trial. In that same order, the trial court denied both parties' requests for attorney fees. Husband filed a Motion to Set Aside the Final Judgment and a Motion for Reconsideration on July 15, 2009. While these motions were pending, Husband filed the application for discretionary appeal that was granted by this Court.
1. Husband contends that the trial court erred in making the alleged oral agreement of the parties at trial a part of the court's final order, because the terms of the agreement were still in dispute. The record, however, belies this assertion. Husband knew that the agreement reached between the parties during a court recess would constitute a final resolution of the issues upon which the parties agreed, and in fact testified that he knew that the agreement would be "set forth on the record before the court." Husband also did not object to any of the terms of the agreement when those terms were stated on the record. The trial court was authorized to find that an agreement existed between the parties, and was accordingly authorized to make that agreement part of the court's final decree. See Little v. Little, 236 Ga. 102, 103(1), 222 S.E.2d 384 (1976) (A "trial court [is] authorized to approve the terms of [an] oral settlement agreed to by the parties and to ... incorporate it in the final decree") (citation omitted).[1]
2. An award of attorney fees as part of the expenses of litigation is left to "the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party." OCGA § 19-6-2(a)(1). Here, "[t]he record and the transcript of the final hearing establish the trial court properly considered the relative financial positions of the parties" (Rieffel v. Rieffel, 281 Ga. 891, 893(1), 644 S.E.2d 140 (2007)), and "we find no abuse of the trial court's sound discretion in its denial of any attorney fees to [Husband]." Mixon v. Mixon, 278 Ga. 446, 447(2), 603 S.E.2d 287 (2004).[2]
Judgment affirmed.
All the Justices concur.
NOTES
[1] In this regard, Husband's enumeration in which he challenges the division of property as reflected in the parties' agreement is also without merit, as Husband's argument with respect to that enumeration is entirely dependent upon his erroneous contention that no agreement actually existed between the parties.
[2] To the extent that Husband argues that he was entitled to attorney fees pursuant to OCGA § 13-6-11, such argument is without merit, as Husband is neither a plaintiff in a civil action nor a defendant in a civil action who has pursued an independent counterclaim. See OCGA § 13-6-11 ("[W]here the plaintiff has specially pleaded and has made prayer [for attorney fees and expenses of litigation] and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow [such expenses]"); Byers v. McGuire Properties, 285 Ga. 530, 540(6), 679 S.E.2d 1 (2009) ("[A] plaintiff-in-counterclaim cannot recover attorney fees under OCGA § 13-6-11 unless he asserts a counterclaim which is an independent claim that arose separately from or after the plaintiff's claim") (citations omitted). Husband is a defendant in a divorce action, and the only legitimate statutory basis that he asserted for the imposition of attorney fees here was under OCGA § 19-6-2(a)(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1026761/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4008
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH F. ETIENNE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:06-cr-00150-JRS-1)
Submitted: July 18, 2007 Decided: September 24, 2008
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Craig W. Sampson, BARNES LAW FIRM, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Brian Lee
Whisler, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Joseph Etienne was convicted of
conspiracy to commit health care fraud, in violation of 18 U.S.C.
§ 1349 (2000), multiple counts of health care fraud, in violation
of 18 U.S.C. §§ 1374, 2 (2000), and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000).
Etienne was sentenced to 120 months of imprisonment. On appeal, he
raises two issues. For the following reasons, we affirm.
Etienne first asserts that the district court abused its
discretion by permitting a government agent (Agent Costen), who was
not sequestered as a witness, to testify regarding the § 922(g)(1)
firearm charge after observing the testimony of another government
agent (Agent Gladwin) on that issue. At the outset of the trial,
the court granted the Government’s unopposed request to have both
Costen and Gladwin remain in the courtroom for trial, based on the
Government’s assertion that only Gladwin would testify. Gladwin
testified on direct examination that, during an interview of
Etienne by Costen and Gladwin in Etienne’s residence
contemporaneous with a search thereof, Gladwin confronted Etienne
with information that agents had found a gun in the residence.
According to Gladwin, Etienne responded by saying “he forgot to
tell us that it was there,” and that the gun “was [his roommate]
LeVaughn Walker’s grandfather’s gun and that it had been given to
LeVaughn Walker.” J.A. 464. Gladwin also testified that Etienne
- 2 -
took some breaks from the interview to make telephone calls, and
that Gladwin overheard Etienne’s side of one such conversation with
Walker’s mother, Celestine Green. Gladwin testified that “[w]hen
[Etienne] got on the phone, within like the first ten seconds, I
remember [him] saying, ‘They found the gun.’” Id. at 463. When
challenged to do so on cross-examination, however, Gladwin could
not specify whether Etienne had said agents found “the” gun or “a”
gun. Id. at 494. Over Etienne’s objection, the Government then
was permitted to call Costen to the stand. The sole purpose of the
Government’s examination of Costen was to establish that Etienne
had told Green during their telephone conversation that agents
found “the” gun. J.A. 507. The defense did not cross-examine
Costen, and the Government rested its case. Thereafter, the
defense unsuccessfully moved to strike Costen’s testimony for
failure to sequester her.
Ordinarily, when Federal Rule of Evidence 615 (relating
to sequestration of witnesses) is invoked, the Government “may be
permitted to have only one case agent in the courtroom during
trial.” United States v. Kosko, 870 F.2d 162, 164 (4th Cir. 1989)
(citing United States v. Farnham, 791 F.2d 331, 335 (4th Cir.
1986)). “[T]he sequestration of witnesses effectively discourages
and exposes fabrication, inaccuracy, and collusion,” and
“[s]crupulous adherence to [Rule 615] is particularly necessary in
those cases in which the outcome depends on the relative
- 3 -
credibility of the parties’ witnesses.” Farnham, 791 F.2d at 335.
In Farnham,
we were willing to, in effect, presume prejudice where
the district court clearly violated the rule by allowing
both testifying government agents to remain in court
during each other’s testimony and where it would be
impossible for the defendant to prove that the second
agent’s testimony would have been different if he had not
heard the first agent’s testimony.
United States v. Harris, 39 F.3d 1262, 1268 (4th Cir. 1994) (citing
Farnham, 791 F.2d at 335). Nevertheless, we recognized in Harris
that violations of Rule 615 are subject to the harmless error rule
and, thus, that an error in nonsequestration does not warrant per
se reversal if the circumstances of a particular case illustrate
clearly that the witness’s testimony had no substantial influence
on the verdict. Id.
Even accepting that a violation of Rule 615 occurred here
(an issue that the Government disputes on the premise that the
trial court properly exercised its discretion), we conclude under
the circumstances presented that the district court’s decision to
permit Costen to testify was harmless error. That is, Etienne’s
conviction under § 922(g)(1) is supported by other substantial
evidence. See Fed. R. Crim. P. 52(a); United States v. Ince, 21
F.3d 576, 583 (4th Cir. 1994). For instance, Gladwin testified
that, when confronted during the interview with information about
the gun, Etienne indicated that he knew but forgot to tell agents
about the gun’s presence in his residence. Furthermore, the gun
- 4 -
was found in a dresser along with business and banking documents
bearing Etienne’s and Walker’s names, and Etienne’s driver’s
license and a yellow bracelet bearing his name were found nearby in
a cigar box.
Next, Etienne asserts that the district court erred in
refusing to give his proposed jury instruction. We review the
decision to give, or not to give, a jury instruction and the
content of that instruction for an abuse of discretion. United
States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995). The district
court’s refusal to grant a requested jury instruction is reversible
error only if the proffered instruction “(1) was correct; (2) was
not substantially covered by the court’s charge to the jury; and
(3) dealt with some point in the trial so important, that failure
to give the requested instruction seriously impaired the
defendant’s ability to conduct his defense.” United States v.
Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal quotation marks
omitted). Etienne has not met the above requirements for
reversible error, in that his requested jury instruction was
substantially covered by the court’s charge to the jury.
Accordingly, we find that the district court did not abuse its
discretion in refusing Etienne’s requested instruction.
For the reasons stated herein, we affirm Etienne’s
convictions and sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
- 5 -
materials before the court and argument would not aid the
decisional process.
AFFIRMED
- 6 - | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/462787/ | 780 F.2d 1015
Hallv.Jones & Laughlin Steel Corp.
85-3208
United States Court of Appeals,Third Circuit.
11/25/85
1
Ben.Rev.Bd.
PETITION FOR REVIEW DENIED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2588134/ | 205 P.3d 102 (2009)
226 Or. App. 604
STATE
v.
BOYD.
Court of Appeals of Oregon.
March 19, 2009.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619479/ | 38 So. 3d 316 (2010)
STATE ex rel. Christopher SHANK
v.
STATE of Louisiana.
No. 2009-KH-1863.
Supreme Court of Louisiana.
June 18, 2010.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619469/ | 75 Wis. 2d 1 (1977)
248 N.W.2d 490
IN RE MATTER OF MEDICAL SUSPENSION PROCEEDINGS AGAINST WICKLUND.
No. 75-335-D.
Supreme Court of Wisconsin.
Submitted December 16, 1976.
Decided January 6, 1977.
For Board of State Bar Commissioners: Ray S. Wilcox of Eau Claire.
For Arne Wicklund: William P. Skemp of La Crosse.
PER CURIAM.
This is an original action commenced upon the complaint of the Board of State Bar Commissioners seeking, pursuant to sec. 256.286, Stats., the suspension of the license to practice law of Arne Wicklund, an attorney admitted to practice by this Court on February 10, 1950.
The complaint alleged that Wicklund should not be permitted to engage in the practice of law because of a *2 mental illness which constitutes a danger to potential clients and the public. Wicklund filed an answer and affirmative defense. This Court on October 10, 1975, appointed the Honorable Rodney Young as referee to try the issues raised by the complaint and answer and to file findings of fact and recommendations with the Court. On November 4, 1975, in response to a petition by the Board of State Bar Commissioners, pursuant to sec. 256.286(6), Stats., this Court appointed counsel to represent Wicklund. Substituted counsel was later appointed. On February 27, 1976, this Court, pursuant to sec. 256.286 (2), appointed two doctors to conduct an examination of Wicklund and ordered Wicklund to submit to the examination.
The referee subsequently ordered Wicklund to present himself at the offices of the two doctors at specific times and dates and ordered Wicklund to appear before him on August 6, 1976. Wicklund failed to comply with any of the orders. Wicklund was then notified of a hearing to be held before the referee on September 23, 1976, on the complaint. The hearing was held, but Wicklund did not appear in person. His court appointed counsel did appear, but Wicklund had not been in communication with him. At the September 23, 1976, hearing the referee received evidence and on October 6, 1976, filed a report with this Court making findings as to Wicklund's refusal to participate in the proceedings, that Wicklund's mental illness was demonstrated by various documents and letters prepared by him, and that the illness made him a danger to potential clients and the public if permitted to practice law. The referee recommended Wicklund's license be suspended indefinitely because of mental illness or in the alternative that his license be suspended for failure to comply with orders of this Court and the referee, and that if Wicklund should petition for reinstatement, this Court should require he be examined by a psychiatrist.
*3 The Board of State Bar Commissioners has filed a brief in support of the referee's report and recommendations. Wicklund has filed no response to the referee's report or the brief of the Bar Commissioners. His court appointed counsel has filed a letter with the Court in which he states that all of his efforts to contact Wicklund have met with no response from him, and thus it was impossible for counsel to file a brief in opposition to that of the Bar Commissioners.
We have reviewed the documents filed in this Court by Wicklund as well as the documents introduced at the hearing before the referee. We believe these documents and his conduct in these proceedings demonstrate that Wicklund is suffering from a mental illness which makes it dangerous to potential clients and to the public for him to continue to practice law at this time. We must, consequently, suspend his license to practice law until such time as he demonstrates to this Court that his mental health has been restored and he is again able to practice law without danger to his clients and the public.
Attorney Arne Wicklund's license to practice law is suspended until such time as he is found by order of this Court to be mentally able to practice law.
ABRAHAMSON, J., took no part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619494/ | 152 So. 2d 865 (1963)
Mrs. Lorraine Sabath COATES
v.
SCHWEGMANN BROS. GIANT SUPER MARKETS, INC.
No. 20619.
Court of Appeal of Louisiana, Fourth Circuit.
May 6, 1963.
Bernard A. Dempsey, New Orleans, for plaintiff and appellant.
Stone, Pigman & Benjamin and Ewell P. Walther, Jr., New Orleans, for defendants and appellees.
Before McBRIDE, REGAN and HALL, JJ.
McBRIDE, Judge.
Plaintiff took this appeal from the judgment dismissing her suit for damages based on an allegedly unlawful search and detention of her person by the employees of defendant's supermarket.
The employees on duty at the time testified on behalf of the defendant that the incident complained of did not occur and that they have no recollection of plaintiff. The defense testimony shows that inside the one entrance there is in plain view a large sign, approximately 3 feet by 6 feet containing red and green lettering about 6 inches high, instructing customers upon entering the store to check what packages they have without cost at a counter provided for such purpose.
Plaintiff brought into the supermarket two children's dresses enclosed in a paper bag which had been bought at another store. She failed to check the same. She denied any knowledge of the above-mentioned sign, although she had shopped in the supermarket for two years. After securing approval of her husband's paycheck, which she was desirous of cashing, and selecting two items of merchandise, she proceeded to the cashier's counter to pay for her purchases and leave the establishment. The *866 cashier asked what was in the bag plaintiff held and was told it contained two dresses which had been purchased elsewhere, but plaintiff refused to permit the cashier to see the contents of the bag. According to plaintiff and her witness, the cashier stated she could not take plaintiff's word for it and that a search of the bag was required; whereupon, she called the "floor lady" who removed the dresses from the bag, and after an inspection returned them to plaintiff with the comment "it's not our merchandise" and "she can go."
Plaintiff admits that both the cashier and the "floor lady" were polite, not hostile, and made no threats. Plaintiff's friend and witness testified that no one required plaintiff to remain at the counter and that she was free to leave whenever she pleased. This would support the testimony of the supervisor that instructions had been issued to the effect that cashiers are not to detain persons who refuse to permit inspection of packages brought from outside the store, but are to let them go through the line.
Plaintiff declares that the proceedings consumed about fifteen minutes and took place in the presence of several persons, and she claims she was subjected to inconvenience and great humiliation.
Whatever woes plaintiff suffered may be attributed to herself. The requirement of the operator of a "serve yourself store" that patrons are required to check parcels brought into the establishment is reasonable and its purpose is obvious. Had plaintiff obeyed the instructions appearing on the sign, the matter which forms the basis of her suit would never have happened. Moreover, there was no forcible detention of plaintiff's person nor were the contents of the bag examined against her will. When the floor lady appeared, plaintiff voluntarily handed over the package, thus tacitly consenting to its contents being removed. The consent of a plaintiff to acts which might have constituted an illegal detention of or search of his person bars his right to recover therefor. Banks v. Food Town, Inc., La.App., 98 So. 2d 719.
The judgment is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619489/ | 152 So. 2d 566 (1963)
Mrs. Edith RAY, Plaintiff-Appellee-Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al. Defendants-Appellees-Appellant.
No. 9910.
Court of Appeal of Louisiana, Second Circuit.
April 1, 1963.
Booth, Lockard, Jack, Pleasant & Le-Sage, Shreveport, for Mrs. Edith Ray, plaintiff-appellee-appellant.
Cook, Clark, Egan, Yancey & King, Shreveport, for Government Employees Insurance Company, defendant-appellant.
Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for Calvin L. Idom and State Farm Mut. Auto. Ins. Co., defendantsappellees.
Before HARDY, AYRES and BOLIN, JJ.
AYRES, Judge.
This is an action in tort wherein plaintiff, Mrs. Edith Ray, seeks to recover damages for personal injuries sustained by her arising out of a motor vehicle rear-end collision *567 of March 4, 1961, in a railway underpass on Hollywood Avenue in the City of Shreveport. Involved were a Ford pickup truck of E. D. Ray, plaintiff's husband, with whom she was riding as a guest passenger, and a Ford automobile of Calvin L. Idom. Made defendants are Idom and his insurer, State Farm Mutual Automobile Insurance Company, against whom recovery is primarily sought; and, in the alternative, against said defendants and Ray's insurer, Government Employees Insurance Company; and, further in the alternative, against the latter insurer alone.
The conclusion reached by the trial court was that the accident was caused solely through the fault and negligence of E. D. Ray. Accordingly, judgment was rendered in plaintiff's favor against the defendant, Government Employees Insurance Company, for the sum of $3,000. Her demands against the other defendants were rejected and, as to them, her suit was dismissed. From a judgment thus rendered and signed, both plaintiff and the condemned defendant appealed.
The defendant, Government Employees Insurance Company, in a specification of errors, contends that the court erred in holding: (1) that this defendant's policy afforded coverage to E. D. Ray on the pickup truck involved in the accident; (2) that E. D. Ray was guilty of negligence; and (3) that Calvin L. Idom was free of negligence, which was a proximate cause of the accident. Plaintiff, on the other hand, contends that the court erred: (1) in concluding that the acts of negligence of E. D. Ray were the sole, proximate cause of the accident; and (2) in fixing an award inadequate for the injuries sustained by her.
The position of defendants Idom and his insurer is that Idom was confronted with an emergency, not of his own making or choosing, which was a circumstance not to be reasonably expected or anticipated by him in which his reactions and efforts to avoid were those of a reasonably prudent person.
Logically, first for consideration is the matter of coverage of the policy of insurance of the defendant, Government Employees Insurance Company. The material facts relative to this defense are not in dispute. This defendant issued the policy of public liability to E. D. Ray covering a 1953 model Mercury. After the occurrence of an accident in December, 1960, involving the Mercury, Ray purchased the Ford pickup truck which was involved in the accident presently under consideration. More accurately stated, the issue is whether the pickup truck was a replacement vehicle within the terms of the policy.
The policy, under PART I, pertaining to "LIABILITY," provides:
"OWNED AUTOMOBILE" means
* * * * * *
"(c) a private passenger, farm or utility automobile * * * ownership of any of which is acquired by the named insured during the policy period, provided
(1) it replaces a described automobile * * *."
Under "CONDITIONS" of the policy, we find this provision:
"2. PREMIUM: If the named insured disposes of or replaces a private passenger, farm or utility automobile or, with respect to Part III, a trailer, he shall inform the company during the policy period of such change. * * *." (Emphasis supplied.)
It clearly appears, from the above-quoted provisions of the policy, that, if the insured acquires another motor vehicle, of the kind and character described, during the policy period, and it replaces the vehicle named in the policy, the policy affords coverage to the replacement vehicle during the term of the policy.
"Replace" means "To take the place of; to serve as a substitute for, or successor of; supplant; * * *. To fill the place of; to *568 supply an equivalent for; * * *." "Replacement" is defined as an "Act of replacing, or state of being replaced. * * *. A new fixed asset, or portion of an asset, which takes the place of a discarded asset, or portion of an asset." Webster's New International Dictionary, Second Edition.
For a period of time prior to the purchase of the Ford truck, the Mercury automobile was completely inoperable. Ray placed it in his yard jacked up off the ground, after which it was never used. Following the purchase of the Ford, the tires of the Mercury were removed and used on the Ford. The Mercury was subsequently sold to a party who had need of the engine. The Mercury was never used after the Ford truck was acquired. Ray testified that he acquired the truck to replace the Mercury automobile as a means of transportation which he needed.
Under the quoted provisions of the policy, replacement is not contingent upon the insured's selling or otherwise disposing of the vehicle, nor upon a condition that the vehicle has become inoperable or unusable. Replacement is not so conditioned. That the vehicle was inoperable is a corroborative fact that the newly acquired vehicle replaced the former one.
The conclusion is, therefore, inescapable that the Ford pickup truck was a replacement vehicle in lieu of the Mercury automobile, and the public liability policy afforded coverage. The requirement that the insured give the insurer notice of the acquisition of an additional automobile within 30 days of its acquisition is inapplicable where the acquired automobile is a replacement for the one described in the policy.
For an appreciation of the issues relating to the question of defendants' liability, an understanding of certain of the established facts is a prerequisite. The scene of the accident was an underpass over 76 feet in length, in the nature of a dip in the street, and was of a narrow, 2-lane construction, divided by a concrete ledge and pillars. The street was wet, from a recent rain, at the time of the accident. The bottom of the passageway was covered with water to a depth of at least an inch or two. The darkness of the passageway was intensified by the late-afternoon rainy, cloudy atmosphere. Near the eastern exit of the underpass was a huge hole in the pavement in the eastbound traffic lane.
Hollywood Avenue is a main thoroughfare leading from the city to the municipal airport. Four motor vehicles, at least, constituted a line of traffic proceeding through the underpass immediately prior to the occurrence of the accident. The procession was led by a car whose driver was unknown, followed next in line by a car of one Johnson Lockett, in third place by the Ray truck, and fourthly by the Idom automobile.
Lockett testified that the forward car slowed and passed to the left of the hole in the pavement; that the car obstructed his view of the hole until the car had continued past; whereupon, then seeing the obstruction, he was forced to suddenly apply his brakes and stop before proceeding.
Ray testified that he was following the Lockett car at a distance of about a car's length; that, from his frequent use of the street, he knew of the hole in the pavement; that, when the brake lights flashed on the Lockett car, he applied his own brakes, skidded his truck almost to but not quite within striking distance of the rear end of that car; that, with the expectation of avoiding the hole in the pavement, he steered his vehicle to the left. This latter action caused him to strike a pillar of the underpass as he came to a stop. Ray estimated his own speed, as well as that of the Lockett car, at 20-25 m. p. h.
Idom testified that, as he entered the underpass, he was "40 or so feet" behind the Ray truck, and that he continued at a distance of 30-40 feet to its rear at a speed estimated by him at 20 m. p. h. In describing *569 the incident, Idom stated, with reference to Ray:
"He had already applied his brakes when I really noticed him. As I looked up it was when he hit the concrete, and he had applied his brakes and slowed down some, so I was a little closer when I got into his view when I looked up."
Idom further testified that, after applying his brakes and skidding his car 10-12 feet, he, only momentarily after the Ray truck collided with the pillar, struck the Ray truck. Idom never saw brake lights flash from the Ray truck. Idom, as well as Ray, was fully aware that the underpass afforded a darkened passageway, in the bottom of which there was usually standing water.
Charges of negligence directed by Mrs. Ray to Idom consisted of following too closely, failing to maintain a proper lookout or to maintain control of his vehicle, or to bring his automobile to a stop before striking the forward truck. In the alternative, plaintiff charges that, concurrent with Idom's negligence, Ray's failure to bring his vehicle to a stop before striking the pillar was a proximate cause of the accident.
The defendant, Government Employees Insurance Company, for the reasons and upon the grounds asserted by plaintiff, contends that Idom's negligence was the sole cause of the accident. However, the defendants, State Farm Mutual Automobile Insurance Company and Idom, contend that the sudden stoppage of the vehicles ahead of Idom was the sole cause of the accident.
As heretofore observed, both Ray and Idom were familiar with the locationthe narrowness and the darkness of the passageway, which was usually wet. Ray admitted knowledge of the presence of the obstruction in the street. Indeed, he said he made a movement to avoid it, although he saw, or should have seen, the car ahead proceeding into it.
Idom's testimony, to which we have referred, established his own failure to keep or maintain a proper lookout. Under the circumstances existing at the time and to which we have also referred, Idom was following, too closely, the preceding vehicle.
The general statutory rule is that
"The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicle and the traffic upon and condition of the highway."
LSA-R.S. 32:234, subd. A.
It is urged, however, that drivers Ray and Idom were each faced with an emergency not of their choice or making which served to except them from the application of the aforesaid rule. With reference to such an exception, we had the occasion, in Nomey v. Great American Indemnity Company, La.App. 2d Cir., 1960, 121 So. 2d 763, 765, to state:
"We think our jurisprudence has firmly established the rule that failure to maintain a specified distance between automobiles does not of itself constitute negligence; that a driver is entitled to rely upon the assumption that the car ahead is being driven with care and caution in accordance with the law of the road and that the driver thereof will not commit acts of negligence which will endanger the following traffic.
"As long ago as 1935, in Hill v. Knight [La.App.], 163 So. 727, this court recognized and approved the rule that a following driver should drive at such speed and maintain such an interval as would enable him to avoid collision with a leading car under circumstances which should reasonably be anticipated."
Rhea v. Daigle, La.App. 1st Cir., 1954, 72 So. 2d 643 (writs denied), followed and elaborated upon the aforesaid rule and cited, among others, Adams v. Morgan, La.App. 1st Cir., 1937, 173 So. 540; Reeves v. Caillouet, La.App. 1st Cir., 1950, 46 So. 2d 373. *570 See, also: Peranio v. Superior Insurance Company, La.App. 1st Cir., 1954, 76 So. 2d 315 (writs granted); Soudelier v. Johnson, La.App. 1st Cir., 1957, 95 So. 2d 39.
A restatement of the rule is found in 5A Am.Jur., verbo "Automobiles and Highway Traffic," § 204, page 354, wherein it is recited:
"The driver of an automobile is not bound to anticipate negligence on the part of another driver, in the absence of anything to indicate otherwise. The care and diligence of the operator of a motor vehicle is to be measured in view of the assumption that others will not drive in negligent manner, but this assumption does not apply if one sees, or by the exercise of ordinary care and prudence should see, that some other driver will not obey the law or is unable to do so."
While we are in accord with the principles relied upon, where applicable, we do not find such principles applicable here under the facts and circumstances established in the record, as shown hereinabove. The street upon which this accident occurred is a busy one and it is not unusual for cars to become involved in what may be described as a "line of traffic," such as was the case with the four vehicles herein concerned. When such a line of vehicles is proceeding along a busy street, it is the duty of each driver to so regulate the speed of his own automobile and the distance at which he follows the vehicle ahead, and to maintain such a lookout and keep his vehicle under such control as to meet the usual traffic developments. This is the principle which we think finds application to the facts of this case. Under a similar state of facts, this court had occasion to remark, in Gandy v. Arrant, La.App. 2d Cir., 1951, 50 So. 2d 676, 678-679:
"A prudent person, traveling the highway, who becomes one link in a line of vehicles, must necessarily be on the alert, observing the car ahead and the general traffic situation in front. In the case before us, had defendant Arrant been alert and observant of traffic conditions ahead, he could and would have observed the stopping of the Livingstone truck, which was larger than the following Chevrolet and Nash passenger vehicles. Evidently the Chevrolet driver immediately behind the truck was alert as this vehicle came to a timely stop. Likewise the plaintiff's Nash, the third car in line, was brought to a stop without crashing into the vehicle ahead. Had defendant Arrant been keeping a proper lookout ahead, he likely would have noted the existence of the bridge, the presence of the truck approaching from the opposite direction, and surely would have noted the stopping of the beverage truck and the successive stops of the Chevrolet and Nash automobiles, and would have had sufficient time to have brought his own vehicle to a stop before crashing into the rear of plaintiff's car. Arrant's failure to successfully stop his car indicates that he was guilty of one or more of the acts of negligence charged in plaintiffs' petition. Either he was following the plaintiff's car more closely than was reasonable and prudent, having due regard to the speed of the preceding vehicle and traffic conditions, or he was not keeping a proper lookout ahead and failed to apply his brakes seasonably, or he was driving his car at an excessive rate of speed under the circumstances. Arrant was guilty of negligence in crashing into the rear of plaintiff's vehicle, and we think it is of no consequence that the record does not establish definitely whether his failure to timely stop his vehicle was due to his neglect to keep a proper lookout ahead, his neglect to promptly apply his brakes, or to his following too closely the car of Harold Gandy in view of his own speed and the traffic situation generally. The record does establish that the collision was due either to one or to a combination of *571 two or more of these specific acts of negligence above set forth."
Thus, as was stated in McNulty v. Toye Bros. Yellow Cab Co., La.App.Orleans, 1954, 73 So. 2d 23, 26,
"Courts have come to the realization that traffic conditions of today being what they are, a person operating an automobile vehicle in a line of traffic must be at all times vigilant and alert and must keep a sharp lookout for sudden maneuvers by vehicles ahead and appraise carefully the existing conditions." See, also: Benenate v. Brooks, La.App.Orleans, 1957, 95 So. 2d 757.
Our conclusion is that, under the conditions and in the manner in which both Ray and Idom operated their respective vehicles, the sole and proximate cause of the accident was the concurrent negligence of both drivers. Hence, the defendants are solidarily liable and must respond in damages to Mrs. Ray for the injuries sustained by her.
Therefore, finally for resolution is a question of the award of damages sufficiently adequate to compensate Mrs. Ray for the injuries sustained. By force of the impact of the collisions, Mrs. Ray was first thrown forward, bracing herself against the dashboard, thus cushioning and minimizing the force of the impact. She was then thrown violently backward when the truck in which she was riding was struck from the rear. Her head was thrust backward into the rear window with such force as to shatter the glass window.
The nature of the injury suffered by Mrs. Ray was characterized as a whiplash type injury. On the day of the accident, she was treated by her family physician, after which she was advised she might return home. Pain and suffering increased to such intensity that, after an elapse of three or four days, it was necessary that she be hospitalized for a period of seven days. During this time, she was in traction and was administered the usual treatments for her type of injury, sedation and physiotherapy for relief of pain. Mrs. Ray remained at home until March 20, 1961, when she was returned to the hospital, where she remained under treatment until April 1, 1961. During this period, she was again in traction and was given physiotherapy treatments. During the first week of May, 1961, she returned to her physician with complaints of continued pain and suffering. X-rays were taken; she was administered treatments by Microtherm until June 2, 1961, with negative results.
A neurosurgeon was consulted on June 20, 1961, to whom she also complained of pain and distress. Considerable muscle spasm, usually accompanied by pain, was noted in the cervical as well as the thoracic spinal area. Testifying on trial 14 months after the accident, plaintiff complained of constant and continuous pain and suffering. Her activities, because of the injuries sustained, were greatly curtailed. She experienced difficulty with her housework. From an examination of August 11, 1961, the neurosurgeon found that plaintiff continued to have some minor tenderness along the left thoracic perispinal muscle group and in the left trapezius shoulder area.
An award of $5,000 is, in our opinion, reasonable and consistent with awards made in similar cases.
For the reasons assigned, the judgment appealed is amended and recast to read as follows:
It is therefore Ordered, Adjudged, and Decreed there be judgment herein in favor of plaintiff, Mrs. Edith Ray, and against the defendants, Government Employees Insurance Company, Calvin L. Idom, and State Farm Mutual Automobile Insurance Company, in solido, for the full sum of $5,000, with 5% per annum interest thereon from judicial demand until paid, and for all costs including the cost of this appeal; and, as thus amended and recast, the judgment is affirmed.
Amended and affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619497/ | 248 N.W.2d 767 (1977)
197 Neb. 334
STATE of Nebraska, Appellee,
v.
Robert M. SOTELO, Appellant.
No. 40796.
Supreme Court of Nebraska.
January 5, 1977.
*769 C. Kenneth Spady, John O. Sennett, of McGinley, Lane, Mueller, Shanahan, McQuillan & Gale, Ogallala, for appellant.
Paul L. Douglas, Atty. Gen., Gary B. Schneider, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
SPENCER, Justice.
Defendant was sentenced to a term of 1 to 4 years in the Nebraska Penal and Correctional Complex following a jury verdict of possession of marijuana with intent to distribute, deliver, or dispense. He alleges three assignments of error: (1) The trial court erred in overruling his motion to suppress evidence. (2) The trial court erred in failing to instruct the jury on lesser included offenses. (3) The trial court erred in finding the evidence sufficient to establish the necessary elements of possession. We affirm.
In the early morning hours of August 4, 1974, officer Hollis Compton of the Nebraska State Patrol stopped a camper eastbound on Interstate 80 near Ogallala, Nebraska, for passing a car without the use of a turn signal. Before he left the patrol car, he observed the defendant making some moves in the vehicle. Defendant leaned forward in his seat and then clear to the right, with his hand stretched out. Compton then started for the driver's window, but noticed that the driver was not in his seat, and went to the door on the right side of the vehicle. He knocked on the door and the defendant came out of the vehicle and closed the door behind him.
After the officer examined driver's license of defendant, he requested the vehicle registration papers, which defendant obtained after asking another occupant where they were. While the defendant was procuring these papers, the officer was standing on the pavement outside the car but positioned so he could see the interior. The door of the vehicle could not be closed because his body was between the car and the door. Defendant produced rental papers showing the vehicle had been rented by one of the two other occupants, Dennis Diaz. It showed Casa Sotelo as his employer. Pamela Critelli, a friend of Diaz, was the other occupant.
From his position outside the car, the officer noticed a strong odor of what he believed to be marijuana. He also heard a great deal of fan noise. When defendant produced the rental papers and handed them to the officer, defendant was inside the vehicle. Officer Compton flashed his light on the floor of the vehicle and observed what he believed to be marijuana seeds. He picked up one of them and asked whether there was any marijuana in the vehicle. Both defendant and Diaz said no.
Officer Compton testified he then asked if he could look in the vehicle. The defendant asked him where he wanted to look, and Compton told them he wanted to look in the front of the vehicle. Defendant and Diaz said okay. Both defendant and Diaz deny they gave permission to search the camper.
A search of the cab revealed a plastic bag directly in front of the driver's seat which the officer believed contained marijuana. He also found several pills in the glove compartment. He believed them to be amphetamines. He then placed the occupants under arrest.
Critelli was then observed throwing something out of the vehicle. The officer had it retrieved, and discovered it was a corncob pipe. After he arrested the parties, the officer discovered marijuana seeds on the pavement where they were standing. Compton then went to the rear of the vehicle and looked through some of the cupboards. He found several brick-shaped packages. Other packages enclosed in large plastic bags were found in the shower. The vehicle was carrying in excess of 1,000 pounds of marijuana.
Defendant testified he had been living in Tucson, Arizona, in the summer of 1974. He met Dennis Diaz on two occasions as Diaz was a roommate of his brother. Diaz called, asking defendant to meet him at the *770 Tucson airport. Defendant picked up Diaz at the airport, and took him to the rental agency where Diaz rented the Winnebago camper. Defendant had previously mentioned going to Michigan. Diaz asked defendant whether he still wanted to go to Michigan. Defendant accepted the ride and went home to pack. He taped a sign to his suitcase saying "Michigan" in case he had to hitchhike any distance to his destination.
Defendant further testified Diaz picked him up at his house about 4 or 5 hours after leaving the rental agency. Defendant paid some of the expenses for gasoline on the trip, and did some of the driving. He testified he never opened any of the cupboards or the shower stall where the marijuana was discovered. He testified also the airconditioner and the exhaust fans were running the whole trip and he did not notice the odor of marijuana. When defendant was arrested he told the officer that he had been hitchhiking and that Diaz had picked him up in Flagstaff. The "Michigan" sign was found taped to his suitcase.
Diaz offered a different version of how they came to be traveling together. He testified he received a phone call in California from an unidentified caller asking if he wanted to do some work driving. He was told to be in Tucson as soon as possible. Diaz had previously done some driving for defendant's sister, transporting pottery from Arizona to California. Diaz flew to Tucson where he called the number he had been given. Someone told him to go to a shopping center where he would be met. He was not told who would meet him. Defendant picked Diaz up at the shopping center and drove him to the rental agency. Defendant told Diaz they were going to Chicago and Diaz was to rent the Winnebago. Defendant gave him the money for renting the camper.
After renting the camper, Diaz drove it back to the shopping center and defendant drove his own vehicle there. They separated for about an hour and a half, and Diaz ate lunch in the shopping center. He walked back to the parking lot and defendant was waiting for him. They started on their trip at that time. Diaz became aware of the marijuana in the vehicle after they had been traveling for a couple of hours. The only conversation between Diaz and defendant about the marijuana took place in Colorado when Diaz asked him how much it was worth.
Pamela Critelli joined Diaz and defendant in Colorado Springs. She was a friend of Diaz and had flown to Colorado Springs after Diaz called her and asked her to meet him there. She did not testify at the trial. Diaz and Critelli were allowed to plead guilty to a misdemeanor offense of possession of marijuana weighing less than a pound. Diaz testified for the State.
Before considering the defendant's assignments, we note that the State contends defendant's motion for a new trial was not timely. The motion was filed on the 11th day after the verdict. However, the 10th day was a Sunday. We have repeatedly held that when the 10th day for filing a motion for a new trial is a Sunday or a holiday, filing on the next business day is within time.
Defendant's first assignment of error is that the trial court erred in failing to suppress the evidence found in the search of the camper. While defendant denies a law violation, he does concede the officer, having observed one, had a right to stop the vehicle to obtain identification of the driver and determine the ownership of the vehicle. Defendant's contention is that the officer did not have a right to stand in a position so that the door of the van could not be closed when the driver retrieved evidence of ownership of the van. Defendant concedes the officer's initial position outside the van was proper. The thrust of the defendant's argument is that when officer Compton's body blocked the closing of the door of the camper the officer was actually conducting a search. His entire argument is premised on the supposition that this was the point at which the search began.
Essentially, it is defendant's contention that the officer did not have a right to be where he could look into the camper and he could not have done so if his body had not *771 been positioned so as to block the closing of the door. The question is not whether the state trooper had probable cause to begin a search at that point in time; rather, it is whether his position was reasonable under the circumstances. We determine that it was.
We find officer Compton had a lawful right to be standing where he was when he detected the strong odor of marijuana and saw the marijuana seeds. The officer's action was entirely reasonable. He positioned himself so that he could see what was transpiring in the vehicle, particularly what the defendant might be obtaining from the glove compartment or from the automobile. It is proper and often necessary that an officer keep the subject in view in such circumstances. As Mr. Justice Rehnquist observed in footnote 5 in United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973): "One study concludes that approximately 30% of the shootings of police officers occur when an officer stops a person in an automobile." See, also, Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).
We determine the disputed position of the officer was not a search or seizure within the scope of the Fourth Amendment even though his position brought evidence of illegal activity within the range of his senses. The search did not begin until the officer actually entered the vehicle which the State's evidence indicates was with consent. It is true, the issue of consent was disputed. On the record, however, it became a fact question which was resolved against the defendant.
Ignoring for a moment the question of consent, defendant argues the search was unreasonable without a warrant. We disagree. The officer was confronted with a vehicle that could be easily moved. He detected a strong odor of marijuana. He observed marijuana seeds in the car. Immediately after stopping the car, he had observed some suspicious circumstances on the part of the defendant. Additionally, when he became aware of the marijuana odor he also heard a great deal of fan noise. At that time, he placed the occupants of the vehicle under arrest. As we said in State v. Holmberg (1975), 194 Neb. 337, 231 N.W.2d 672: "Subsequent to the stop, by the use of his senses, the trooper became aware of the presence of marijuana. At that time, under our law, he had probable cause to search the camper for marijuana without the necessity of relying on consent, although he had consent in this case."
Probable cause for searching a motor vehicle is not treated the same as probable cause to search a fixed structure. The movability of the vehicle is an important factor. We have said many times that in the evaluation of the reasonableness of the search and seizure without a warrant, it is imperative that the facts be judged against an objective standard, to wit: The facts available to the officer at the moment of the search or seizure should warrant a man of reasonable caution to believe the action taken was appropriate. See State v. Romonto (1973), 190 Neb. 825, 212 N.W.2d 641. In that case we said: "An officer is entitled to rely on his senses in determining whether contraband is present in a vehicle. If contraband is seen or smelled, the officer is not required to close his eyes or nostrils, walk away, and leave the contraband where he sees or smells it. * * * Probable cause may result from the use of any of the senses. State v. Connor, 189 Neb. 269, 201 N.W.2d 172."
Defendant's next assignment of error concerns the trial court's refusal to give an instruction on lesser included offenses. He requested an instruction which would give the jury alternatives of finding defendant guilty of possession of marijuana with intent to distribute, deliver, or dispense, or possession of marijuana in an amount less than 1 pound. The trial court refused to give the tendered instruction, holding it to be improper because it did not include the alternative of finding defendant guilty of possession of marijuana weighing more than 1 pound. The trial court then gave the defendant the opportunity to elect whether he wanted a proper instruction on lesser included offenses, or none.
*772 The trial court said: "I believe that the defendant, if he desires to have the jury instructed on lesser-included offenses, that he should say so. If he refuses to make an election I then will give the instruction that simply gives the jury the alternative of finding him either guilty of the charge of possession of marijuana with intent to distribute, deliver or dispense, or not guilty, and will take it as an election on his part to refuse to request a lesser-included offense charge."
Defendant's counsel then stated that he would stand on the tendered instruction. The court stated he would take this as a refusal to elect to have a charge of a lesser included offense submitted to the jury. He then asked the defendant and his counsel individually if each of them understood the court's position. Both of them said they did, and the defendant said he joined with his attorney in his statement.
The instruction tendered by the defendant was not a proper instruction on the evidence adduced, and the defendant's attention was called to this fact. The purpose of the instruction conference is to give the parties a chance to request proper instructions and not to provide a trap for the court. In the absence of a proper request, the trial court is not required to instruct in regard to lesser included offenses. State v. Maxwell (1975), 193 Neb. 807, 229 N.W.2d 195.
The trial court explained the alternatives to the defendant, and the defendant elected to stand on his instruction. If the crime of mere possession was involved, the defendant was guilty of possession of more than 1 pound, or was not guilty. The trial court properly interpreted defendant's conduct to require the restriction of the jury to finding defendant guilty of possession of marijuana with intent to distribute, deliver, or dispense, or not guilty.
Defendant's last assignment is that the evidence was insufficient to establish the necessary elements of possession. The applicable rules are stated in State v. Foster (1976), 196 Neb. 332, 242 N.W.2d 876: "Evidence that the accused had physical or constructive possession of a drug with knowledge of its presence and its character as a controlled substance is sufficient to support a finding of possession.
"Constructive possession may be proved by direct or circumstantial evidence, and may be shown by the accused's proximity to the substance at the time of the arrest or by a showing of dominion over the substance."
In order to prove unlawful possession the evidence must show the defendant had physical or constructive possession with knowledge of the presence of the drug as well as its character as a drug. 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 substance at the place where it was found. In this case, there is proof of more than mere presence of the defendant at the place where the marijuana was found. There is the testimony of Dennis Diaz which directly inferred that the more than 1,000 pounds of marijuana belonged to defendant and that defendant intended to dispose of it in another state.
Defendant argues the testimony of Dennis Diaz was unworthy of belief, as he was an accomplice who was allowed to plead guilty to a misdemeanor. However, the jury was properly instructed that the testimony of Diaz should be closely scrutinized for any possible motives for falsification. The weight of the testimony is for the jury to determine under proper instructions. The jury was properly instructed herein, and the defendant has not challenged that instruction. There is no merit to this assignment.
For the reasons given the judgment should be and hereby is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588298/ | 50 P.3d 388 (2002)
J.S., Appellant,
v.
STATE of Alaska, Appellee.
No. S-9722.
Supreme Court of Alaska.
June 21, 2002.
*389 J.S., pro se, Anchorage, and Gayle J. Brown, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Alan L. Schmitt, Kodiak, Guardian Ad Litem.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINION
CARPENETI, Justice.
I. INTRODUCTION
Jack's[1] parental rights were terminated as to his sons Avery, Lyle, and Carl after Jack was convicted of five counts of sexual abuse against them. Jack claims several errors were made by the superior court. Because we find that the superior court did not need to require active efforts under the Indian Child Welfare Act, we uphold the termination of Jack's parental rights.
II. FACTS AND PROCEEDINGS
A. Facts
This case involves the termination of Jack's parental rights to his three sons: Avery, Lyle, and Carl. Avery was born in June 1988. Lyle and Carl, twins, were born in June 1989. Custody of the boys appears to have been transferred to Jack on September 7, 1989 after the state petitioned to have the boys removed from their mother's custody when the twins tested positive for cocaine at birth. During the first several years of the twins' life, custody apparently went back and forth between the mother and Jack. Between January 1, 1994 and January 25, 1996, the boys lived with Jack in Kodiak.
The Division of Family and Youth Services (DFYS) removed the boys from Jack's care on January 25, 1996 due to reports to the *390 Kodiak police department and DFYS case worker, Mary Gray, by the boys' mother and other relatives, that Jack was sexually abusing all three boys. Jack was charged with eight counts of engaging in acts of sexual contact and sexual penetration including fellatio, digital anal penetration, and penile anal penetration. A jury convicted Jack of four counts of first-degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor, counts which involved all three boys. Jack was sentenced to nineteen years with four years suspended. Also, as conditions of parole, Jack was ordered not to have contact, direct or indirect, with his sons or his own sisters, or their families, without prior written approval of the parole officer. Jack was also ordered not to have contact with any minor children under the age of sixteen without the approval of the parole officer. The court of appeals upheld Jack's conviction in its entirety.
After their removal from Jack's custody, the boys were placed in emergency custody. DFYS attempted to place the boys with their mother after her promise to remain clean and sober. The mother moved with the boys into a local women's shelter but abandoned them sometime during the night of February 4, 1996. After their mother's abandonment, the boys were placed in foster care and then placed with their aunt Cara on March 22, 1996. The boys remained with Cara until she informed DFYS that they had to be moved due to their inappropriate sexual behavior with each other and her own children. The boys have since been placed in separate foster homes. The mother's parental rights were terminated on August 24, 1999.
B. Proceedings
The state petitioned to have the boys declared children in need of aid on January 26, 1996. The superior court delayed the proceedings on several occasions pending resolution of Jack's criminal charges. The boys were adjudged children in need of aid under AS 47.10.010(4) by the superior court on January 7, 1997. Also on that date the superior court granted the state's motion for summary judgment, holding that Jack was collaterally estopped from denying that he sexually abused his children in light of his criminal conviction. In January 1999 DFYS petitioned for termination of Jack's parental rights as to all three boys. Jack moved to have the boys declared Indian children for the purposes of the Indian Child Welfare Act (ICWA). Preliminary hearings were held in front of Superior Court Judge Donald D. Hopwood on January 26, 1996 and Standing Master Anna M. Moran on February 2, February 17, May 4, and May 20, 1999. The termination proceeding was held May 25-27, 1999 before Standing Master Moran.
The Muscogee (Creek) Nation moved to intervene in the proceedings under ICWA and that motion was granted by Standing Master Moran. In accordance with Standing Master Moran's findings, the superior court found, beyond a reasonable doubt, that termination of Jack's parental rights was appropriate under AS 47.10.080(o) given the length of his incarceration and the needs of the children. These findings were based on the testimony of six expert witnesses and a social worker.
However, the superior court found that it was uncontroverted that the state failed to offer any type of active remedial or rehabilitative services to Jack as required by ICWA. The superior court found that for rehabilitation to occur, Jack would have to admit that he sexually abused his children and enroll in a sex offender treatment program. The superior court held the record open for sixty days in order to allow the state to develop and offer a treatment plan to Jack; and ruled that if Jack failed to accept the plan during this time his parental rights would be terminated.
The state developed a case plan that included the requirement that Jack admit to charges I through VIII of his March 28, 1996 indictment, openly take full responsibility for his behavior, write a letter of apology to each of his three sons involved in the termination proceedings, direct his attorneys to terminate all appeals of his criminal case, and enroll and be accepted into a sex offender treatment program. Jack rejected the proposed case plan because it required him to admit to the sexual abuse of his sons and *391 because it required him to cease his criminal appeals.
The superior court ordered the matter to be heard by Standing Master Moran for additional findings on the issue of the state's compliance with the August 24, 1999 order. Standing Master Moran found that the state's case plan satisfied ICWA's remedial measures requirement and recommended termination of Jack's parental rights in December 1999. In January 2000 the superior court approved a stipulation between the state and the Muscogee Creek representatives noting that DFYS contacted all of the boys' relatives, that no family members were willing or capable of caring for the boys, and that no families meeting the preference requirements of § 1915(a) of ICWA were found after diligent effort by DFYS. The superior court issued an order in accordance with the findings of Standing Master Moran in May 2000.
Jack now appeals the decision of the superior court terminating his parental rights.
III. STANDARD OF REVIEW
We will affirm a trial court's factual findings in cases of termination of parental rights "unless those findings are clearly erroneous."[2] A finding of fact is clearly erroneous when we are left with a definite and firm conviction based on the entire record that the trial court has made a mistake.[3] It is a mixed question of law and fact as to whether the state has complied with the "active efforts" requirement of ICWA.[4] We will defer to the trial court's factual findings under the "clearly erroneous" standard and review de novo any questions of law.[5] "Whether the factual findings are sufficient to satisfy the [CINA] rules is a question of law" that we will review de novo.[6] Constitutional questions are questions of law for which we will substitute our own judgment.[7] We will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."[8]
IV. DISCUSSION
A. The Superior Court Did Not Err In Terminating Jack's Parental Rights Because Active Efforts Were Not Required under ICWA.
Jack argues that the proposed case plan offered by the state in response to the superior court's August 24, 1999 order did not comply with ICWA's requirement that active efforts be made to rehabilitate a family prior to the termination of parental rights. The state and the guardian ad litem (GAL) argue that the active efforts requirement was complied with. The state and the GAL also argue that ICWA should be interpreted as not requiring active efforts once a family is irrevocably sundered by parental sexual abuse.
The Indian Child Welfare Act requires the state to prove "active efforts ... to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family."[9] We decide whether active efforts have been made on a case-by-case basis.[10] Generally, the state's duty under the active efforts requirement is not affected by a parent's motivation or prognosis before remedial efforts have commenced.[11] We have previously held that "[n]either incarceration nor doubtful prospects for rehabilitation will relieve the State *392 of its duty under ICWA to make active remedial efforts."[12]
However, the enactment of the Adoption and Safe Families Act of 1997[13] (ASFA) convinces us that it is the policy of Congress to not require remedial measures in situations where a court has determined that a parent has subjected his or her child to sexual abuse. This enactment[14] amended 42 U.S.C. § 671 so as not to require reasonable efforts to be made to preserve the family when "a court of competent jurisdiction has determined that ... the parent has subjected the child to aggravated circumstances," which includes sexual abuse.[15] Although this case is not governed by ASFA, that act is useful in providing guidance to congressional policy on child welfare issues. It suggests that in situations of adjudicated devastating sexual abuse, such as this one, a person's fundamental right to parent is not more important than a child's fundamental right to safety. Therefore, we hold that active efforts to reunify the abusing parent are not required in a situation after there has been a judicial determination that the parent has subjected the child to sexual abuse.
Because the superior court could find the state's active efforts duty was discharged when Jack was convicted of sexually abusing his children, the superior court did not err in terminating his parental rights.[16]
B. The Superior Court Did Not Err in Qualifying the Expert Witnesses.
Jack argues that the superior court erred when it qualified experts that were without special knowledge of social and cultural aspects of Native life. In L.G. v. State, Department of Health and Social Services,[17] we stated that "so long as a termination proceeding does not implicate cultural bias, ICWA's proof requirements can be satisfied by a qualified expert witness without any special familiarity with Native cultural standards."[18] We went on to state that "where there is clear evidence that a child faces a serious risk of physical neglect if she [or he] remains in [the] parent's care, a trial judge may terminate parental rights without hearing testimony from an expert in Native cultures."[19] Jack has offered no evidence that the issue of cultural bias was raised at trial.
During the course of the termination proceedings, five experts testified as to the risk to the boys if Jack's parental rights were not terminated. The therapists for all three boys (four therapists in total) testified that the boys could not be transitioned back into Jack's custody without substantial emotional harm. In addition, all four therapists testified that the boys would suffer severe emotional distress if they were required to leave the respective foster families to which they had bonded. Therefore, the superior court did not err in terminating Jack's parental rights without hearing testimony from an expert on Native life because cultural issues were not implicated in the proceedings and there was sufficient expert testimony that the boys could suffer severe emotional harm if Jack's parental rights were not terminated.
*393 C. The Superior Court Did Not Lack Jurisdiction.
Jack argues that the superior court lacked jurisdiction because violations of law occurred during the proceedings. ICWA provides for the transfer of termination proceedings to the tribal court to which the children belong in some circumstances.[20] However, Jack does not seem to be arguing here, nor did he argue in the superior court, that jurisdiction be transferred to the Muscogee tribal court. Instead, he argues that proceedings should be terminated and the boys returned to their "Indian Custodians." Jack's "Motion to Move Superior Court to: Declination of Jurisdiction: and Forthwith Return of Child to Indian Custodian" appears to be a motion to dismiss the proceedings in their entirety. Also pertinent is the fact that the Muscogee Tribe representatives signed a stipulation, that was approved by the superior court, that the tribe was contacted regarding the stability of the current placements and that the tribe is in agreement with the state's handling of the situation, including the boys' placement with non-Native families. There is evidence that the Muscogee Tribe reserved the right to petition that the proceedings be transferred to the tribal court but there is no indication that a petition was ever filed. Also, a petition for removal under U.S.C. § 1911 was never filed. Therefore, the superior court had jurisdiction over these termination proceedings.[21]
D. The Superior Court Did Not Err in Upholding the State's Placement of the Children Outside of ICWA Preferences.
Jack argues that the state failed to follow ICWA's placement requirements because there were family members of Jack who were willing to take the boys but who were never contacted by the state.[22] Jack argues that his brother, Aaron, was willing to take the children, as was Jack's sister, Lilly. Jack also argues that the state failed to inquire about any extended family that may be able to take the boys.
DFYS case worker Mary Gray testified that she contacted the Kodiak Area Native Association in order to find foster placement for the boys on several occasions but that there was never a Native family available. Gray also testified that the boys were placed with their aunt, Cara, but that did not work out. Gray then contacted the boys' other aunt, Lilly, but after some communications between Lilly and DFYS, Lilly decided that she should not take care of the boys. Also, Gray testified that she had a meeting with Jack in the summer of 1998 but that Jack did not offer the names of any relatives who could care for the boys and that she had never heard of Jack's brother, Aaron, until he appeared on the witness list in the proceedings. Furthermore, the Muscogee Tribe representatives signed a stipulation stating *394 that the state worked in conjunction with the tribe to find placement with the boys' family pursuant to ICWA, that placement with relatives or other Native families was not available, and that good cause existed to deviate from ICWA preferences. The state complied with ICWA's preference guidelines. Therefore, the placement of the boys was not in error.
E. The Superior Court Did Not Rule that Jack Was To Have No Direct or Indirect Contact with His Children.
Jack argues that the superior court erred when it found that he was not to have any contact with his children. Jack argues that this finding by the superior court was one of the reasons that his parental rights were erroneously terminated. There is no evidence that the superior court ever ordered Jack to have no contact with his children or based any orders in the termination proceedings on whether or not contact occurred. In fact, Jack's criminal conviction states that he was to have "[n]o contact, direct or indirect, with the victims ... without prior written approval of the Probation/Parole Officer." Therefore, the superior court did not order him to have no contact with his children; this was one of the many conditions of Jack's parole.
F. The Superior Court Did Not Err in Denying Jack's Discovery Motions.
Jack argues that the superior court erred when it denied discovery of notes to an interview that Jack believes occurred between Mary Gray and the boys. Jack claims that he was denied discovery of these notes because Gray and the district attorney denied that this interview ever happened and the superior court agreed with the district attorney and Gray. The superior court granted Jack's discovery motion in part on February 11, 2000, allowing him access to any information that DFYS may have had about communications between DFYS and Lilly. The superior court issued another order on March 8, 2000 denying Jack's discovery request because this discovery request was covered by the court's previous order. In addition, DFYS proved that Jack received discovery of DFYS's entire file in this case. Therefore, the superior court did not deny Jack discovery; there was no error in connection with the superior court's discovery orders.
G. The Superior Court Did Not Err in Finding Beyond a Reasonable Doubt that Placement with Jack Was Likely To Result in Serious Physical or Emotional Damage to the Children.
Jack argues that the evidence presented to the superior court by the state was insufficient to meet the beyond a reasonable doubt standard required by ICWA.[23] Specifically, Jack argues that the expert witnesses did not have sufficient knowledge of the specific facts of this case. We have stated:
We do not hold that a meeting between the expert and the parties to the termination proceeding is required in every case. But the expert opinion should be based on the particular facts and issues of the case ... in order to support a finding, beyond a reasonable doubt, that serious physical or emotional harm will result.[24]
Jack was criminally convicted of sexually abusing the boys. The superior court was therefore justified in finding in the termination proceeding that this fact had been proven beyond a reasonable doubt. We turn now to the specific expert testimony that the state offered, and whether the expert opinions were sufficiently based on the particular facts of this case.
The first expert to testify was Pamela A. Robinson, who has a Bachelor of Science degree in sociology with a minor in psychology and a master's degree in counseling psychology. *395 She testified that prior to getting her master's degree she worked for twenty years in early childhood education and child development, and that she has been qualified as an expert in several other cases. At the time of her testimony, she had been counseling Carl for approximately one and one-half years. Upon the initial consultation, she diagnosed Carl with post-traumatic stress disorder, possible major depression, and adjustment disorder. She stated that she believed that Carl could not be transitioned back to Jack without causing Carl emotional harm.
The second expert to testify was Sandra Husted, who has a bachelor's degree in sociology and a master's degree in counseling. She stated that she was a Clinician II at Providence Mental Health Center in Kodiak from January 1998 until January 1999. At the time of the hearing, she had been licensed as a professional counselor in Texas for nine years. She had been qualified as an expert in psychotherapy and crisis emergency in previous court cases. She testified that she treated Avery from February of 1998 until November of 1998 during which time she saw him approximately every three weeks. She testified that Avery could not be transitioned away from his foster family and back to Jack because of the abuse perpetrated by Jack.
Dr. Robert B. Duthie testified next. He holds a Ph.D. in counseling and clinical psychology and has been board certified in forensic psychology since 1987. He stated that he had been qualified as an expert in at least 100 previous cases. He first met Lyle in June of 1998 and had been following the case ever since. He testified that Lyle had post-traumatic stress disorder arising from the sexual abuse by Jack. He also testified that Lyle could not successfully be placed back into custody with Jack without emotional harm and risk of continued sexual abuse because Jack has not received treatment nor apologized for the previous abuse.
The fourth expert to testify was Dr. Joseph M. Keville, who has a Bachelor of Science degree in social services and a Ph.D. in education; he has been a licensed psychologist in Massachusetts since 1973. He practices in the area of clinical child psychology. He testified that he had treated approximately 1,000 children in the last ten years. He met with Avery on two occasions and testified that he thought that Avery would have a "severe depressive reaction" if he was forced to leave his foster family.
The fifth expert to testify was Dr. Ronald D. Howes, who has a bachelor's degree and master's degree in psychology and a Ph.D. in clinical psychology. He stated that he had completed over 2,000 hours of clinical internship in forensic psychology with the California Department of Corrections and is board certified in trauma psychology with specialties in sex therapy and treatment of sex addictions. He had testified as an expert in court on numerous occasions. He stated that the recidivism rate for a sex offender increased in cases with same gender sexual abuse, lack of a strong family member supervising the family, and where the abuse was not admitted to by the offender. He stated that, given the situation in this case, the rate of recidivism would be over fifty percent.
There was substantial testimony by experts with personal knowledge of the facts of this case and an expert with substantial expertise in sex offender treatment. The superior court's finding beyond a reasonable doubt that placement with Jack would result in serious emotional damage to the boys was therefore not clearly erroneous.
V. CONCLUSION
We AFFIRM the termination of Jack's parental rights.
NOTES
[1] Pseudonyms have been used throughout this opinion for all family members.
[2] A.A. v. State, Dept. of Family & Youth Servs., 982 P.2d 256, 259 (Alaska 1999).
[3] Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).
[4] A.A., 982 P.2d at 259.
[5] Id.
[6] T.F. v. State, Dep't of Health & Soc. Servs., 26 P.3d 1089, 1092 (Alaska 2001).
[7] Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).
[8] Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).
[9] 25 U.S.C. § 1912(d).
[10] N.A. v. State, Div. of Family & Youth Servs., 19 P.3d 597, 603 (Alaska 2001).
[11] A.A. v. State, Dept. of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 1999).
[12] A.M. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled on other grounds, Matter of S.A., 912 P.2d 1235, 1239 (Alaska 1996); see also A.B.M. v. M.H. & A.H., 651 P.2d 1170, 1173 (Alaska 1982) (holding that there was no compelling reason for implying a judicially created exception to ICWA).
[13] Pub.L. No. 105-89, 111 Stat. 2115 (1997) (codified as amended in scattered sections of 42 U.S.C.). This provision of the federal act has been adopted in Alaska as AS 47.10.086(c)(1).
[14] Id. at § 101.
[15] 42 U.S.C. § 671(a)(15)(D)(i) (2001). We note that the Alaska Legislature has adopted this exception to the reasonable efforts requirement in regard to children in need of aid in AS 47.10.086(c).
[16] Jack also argues on appeal that, by requiring him to admit to charges I through VIII of his criminal indictment in order to prevent the termination of his parental rights, the state violated his constitutional right against self-incrimination and that the superior court erred in giving the state time to comply with ICWA. Because we hold that the state was not required to make active efforts, it is unnecessary to reach these two issues.
[17] 14 P.3d 946 (Alaska 2000).
[18] Id. at 953.
[19] Id.
[20] 25 U.S.C. § 1911(b) (2000) provides in relevant part:
(b) Transfer of proceedings; declination by tribal court
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.
[21] AS 47.10.010(a).
[22] 25 U.S.C. § 1915(b) (2000) provides:
(b) Foster care or preadoptive placements; criteria; preferences
Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with
(i) a member of the Indian child's extended family;
(ii) a foster home licensed, approved, or specified by the Indian child's tribe;
(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.
[23] 25 U.S.C. § 1912(f) (2000) provides:
(f) Parental rights termination orders; evidence; determination of damage to child
No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
[24] C.J. v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214, 1218 (Alaska 2001). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619599/ | 980 S.W.2d 730 (1998)
TEXAS WORKERS' COMPENSATION INSURANCE FUND, Appellant,
v.
Barbara SIMON, Appellee.
No. 04-97-00713-CV.
Court of Appeals of Texas, San Antonio.
August 26, 1998.
*732 Paul W. Nye, Roberta S. Dohse, Audrey Mullert Vicknair, Chaves, Gonzales & Hoblit, L.L.P., Corpus Christi, Jeff R. Boggess, Austin, for Appellant.
David O. Gonzalez, Baldemar Gutierrez, Law Offices of Baldemar Gutierrez, Alice, for Appellee.
Before HARDBERGER, C.J., and RICKHOFF and ANGELINI, JJ.
OPINION ON APPELLANT'S MOTION FOR REHEARING
HARDBERGER, Chief Justice.
INTRODUCTION
This court's opinion and judgment of June 3, 1998, are withdrawn, and the following opinion and judgment are substituted to clarify that, if appellee's claim is successful on remand, damages will be assessed, according to statute, by the Workers' Compensation Commission. We revise our original opinion also to emphasize that, because we find, as a matter of law, that appellant did not meet its summary judgment burden, appellee was not required to bring forward evidence raising a fact issue on causation.
The Texas Workers' Compensation Insurance Fund (TWCIF) complains of the denial of its Motion for Summary Judgment and of a summary judgment rendered in favor of appellee, Barbara Simon. We affirm the denial of TWCIF's motion, but reverse the summary judgment in favor of Mrs. Simon, and we remand the case for trial solely on the issue of whether William Simon's fatal injury from a bee sting arose from his employment.
FACTS AND PROCEDURAL HISTORY
William Simon was a mechanic for Damco Services, Inc., in Alice, Texas. On January 14, 1995, Simon was working in Damco's repair shop when he suffered a sting from a bee that had found its way into his Coke can. Simon, who had once been a bee keeper and had suffered many stings without incident, had an immediate and severe allergic reaction to this sting and was taken to the hospital, where he died shortly after arrival.
Barbara Simon claimed benefits under the Texas Workers' Compensation Act. After investigating the incident, TWCIF contested payment in the following language:
Investigation reveals no injury in course and scope of employment. Employee was stung by an insect. Employee was exposed to no greater risk of being stung by an insect than any other member of the general public (emphasis added).
After a Benefit Review Conference (BRC), and at the recommendation of the investigating officer, a Contested Case Hearing (CCH) was held. The issues presented at the CCH were (1) whether Mr. Simon had suffered a "compensable injury" that resulted in his death, and (2) who were the proper legal beneficiaries of Mr. Simon for workers' compensation purposes. After the hearing, the commission denied Mrs. Simon's claim because the injury did not "arise out of" Mr. Simon's employment.
Mrs. Simon appealed to an Appeals Panel of the Texas Workers' Compensation Commission, and the panel reversed. The panel noted that Texas courts have held that a bee sting is not an act of God, so Mrs. Simon was not required to prove that her husband had been at a greater risk of being so injured than any other member of the general public.[1] Mrs. Simon was only required to show that the injury occurred in the course and scope of and arose from his employment. See TEX. LAB.CODE ANN. § 406.031 (Vernon 1996).
The panel decision and a separate concurrence emphasized that the decision did not establish that stings were always coverable; a claimant would still have to demonstrate that the injury occurred during the course *733 and scope of employment and that the injury would not have occurred but for the conditions and obligations of employment. One judge dissented.
TWCIF appealed to the district court of Jim Wells County. In a Motion for Summary Judgment, TWCIF argued that Mr. Simon's injury did not arise from Simon's employment. TWCIF now conceded that the injury had occurred in the course and scope of employment. However, it took issue with the second prong of the Appeals Panel holding, that but for the employment the injury would not have occurred. TWCIF attached to its motion an affidavit from an expert stating that the repair shop presented no greater risk of insect stings than any other environment. In a second affidavit, another expert averred that Simon was predisposed, because of his earlier contact with bees, to a severe allergic reaction.
In response, Mrs. Simon argued that TWCIF had waived its argument regarding whether the injury arose from Simon's employment. She noted that TWCIF had initially presented only three reasons for denying the claim: the injury had not occurred in the course and scope of employment; the claimant had been stung by an insect; and the claimant was exposed to no greater risk than any other member of the general public. The first ground was now conceded by TWCIF in its Motion for Summary Judgment; the second had no legal significance; and the third is the standard set out for acts of God, which, under Texas case law, is not applicable to bee stings. Therefore, according to Mrs. Simon, she was entitled to judgment as a matter of law. Mrs. Simon then moved for summary judgment on the issue of waiver. TWCIF responded to the waiver claim by arguing that Mrs. Simon was required to raise it at the BRC and, having failed to do so, she could not raise it at trial. TWCIF pointed out that the Appeals Panel itself had said as much in its decision.
After a hearing on both motions, Judge Canales denied TWCIF's and granted Mrs. Simon's. Later, at Mrs. Simon's request, Judge Canales modified his judgment to include a lump-sum award of fees for her attorney.
TWCIF appeals in four points of error, claiming that (1) the trial court erred in granting summary judgment on waiver, because waiver was not timely raised; (2) TWCIF had not, as a matter of law, waived its grounds for contesting liability; (3) the injury did not, as a matter of law, arise from employment; and (4) the award of attorneys' fees in a lump sum was error.
STANDARD OF REVIEW
Appeals from district court summary judgment orders in workers' compensation cases are reviewed under traditional summary judgment standards. Anderson v. Hood County, 958 S.W.2d 448, 449 n. 1 (Tex. App.Fort Worth 1997, n.w.h.). The movant for summary judgment must show that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). We take all evidence favorable to the non-movant as true. Id. If the movant establishes his or her right to judgment as a matter of law, the burden then shifts to the non-movant to raise fact issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The same standards govern the denial of a motion for summary judgment. San Antonio Exp. News v. Dracos, 922 S.W.2d 242, 247 (Tex.App.San Antonio 1996, no writ).
POINTS OF ERROR ONE AND TWO: WAIVER
A carrier is liable for compensation when an employee is injured or killed at work, if the injury arises out of and occurs in the course and scope of employment. TEX. LAB. CODE ANN. § 406.031 (Vernon 1996). After a compensation claim is made, the carrier has the right to contest the claim within 60 days, stating the grounds for its refusal to pay. Id. at § 409.021. The carrier is limited to its original grounds for denying a claim in all subsequent proceedings relevant to that claim, unless the defense is based on newly discovered evidence that could not have been discovered at an earlier date. Id. at § 409.022. Here, TWCIF contested liability on the basis of course and scope of employment *734 and under language applied specifically to acts of God.
In her Motion for Summary Judgment, Mrs. Simon argued that these grounds did not give sufficient notice of the ground for denial TWCIF eventually settled on, which was that the injury did not arise from employment. We agree that the grounds TWCIF originally gavecourse and scope and the act of God exceptionare somewhat misleading. Because this case involved an insect sting, the phrase "course and scope" and the invoking of the act of God exception would have raised red flags. "Course and scope" would have alerted Mrs. Simon to the personal comfort doctrine, and the act of God exception would have pointed her to case law holding that an insect sting is not an act of God. However, these were the wrong red flags. Arguably, neither phrase would have alerted Mrs. Simon to causation, which is what this case has ultimately boiled down to.
However, several commission appeals panels have held that no "magic words" are needed to raise the issue of compensability. See Texas Workers' Compensation Commission Appeals Panel No. 1, Appeal No. 93326 (June 2, 1993); Texas Workers' Compensation Commission Appeals Panel No. 14, Appeal No. 92468 (October 9, 1992). The cases make it clear that some ground for contesting liability must be given, Vanliner Ins. Co. v. Ward, 923 S.W.2d 29, 32 (Tex.App.Texarkana 1996, no writ), but they don't require precision.
We believe the notice here sufficiently alerted Mrs. Simon that TWCIF did not believe the insect sting was related to employment. We also agree with TWCIF that Mrs. Simon has waived any right to argue that the initial notice denying coverage was insufficient. Under the Act, an issue not raised in a BRC may not be considered at a CCH. TEX. LAB.CODE ANN. § 410.151 (Vernon 1996). Although the hearing officer at the BRC clearly indicated that whether the injury arose from employment was a contested issue for hearing, there is no record that Mrs. Simon objected that this ground for denial had not been raised earlier. See Cardenas v. Continental Ins. Co., 960 S.W.2d 401, 403 (Tex.App.Corpus Christi 1998, pet. filed) (waiver claim must be raised at benefits review conference to be preserved); Texas Workers' Compensation Commission Appeals Panel No. 39, Appeal No. 950140 (March 8, 1995) (issue of sufficiency of the contest of compensability is so linked to compensability that to have the latter determined without raising the former will constitute waiver of the former).
Mrs. Simon argues that she could not have raised the issue at the BRC, because TWCIF did not raise the issue of whether the injury arose from employment until the appeal. However, the issue presented at the CCH was whether Mr. Simon had suffered a "compensable injury." This issue raised both prongs of the test: whether the injury occurred in the course and scope of Mr. Simon's employment and whether the injury arose from his employment. No objection to the sufficiency of TWCIF's contest appears in the record at that point. See Cardenas, 960 S.W.2d at 403. There is no record that Mrs. Simon objected to a "new" ground for contesting liability. See id.
Mrs. Simon next argues that, because the Appeals Panel addressed whether she had waived her claim on the sufficiency of TWCIF's contest of compensability, she was entitled to raise the issue on appeal from summary judgment. See Estate of Padilla v. Charter Oaks Fire Ins. Co., 843 S.W.2d 196, 200 (Tex.App.Dallas 1992, writ denied) (trial court, in trial de novo, may review subject matter that was or could have been before commission). In response, TWCIF claims that the Appeals Panel did not actually determine whether TWCIF had waived its claim that the injury did not arise from employment. Instead, it decided that Ms. Simon had waived her complaint.
The Panel disposed of the waiver issue as follows:
The claimant asserts that the hearing officer had no authority to decide that the decedent's injury did not arise out of his employment because she asserts that the carrier contested benefits only under the act of God exception in Section 406.032, and that the act of God exception does not apply to a bee sting under case law. Since *735 there was no issue presented at the CCH with respect to the specific grounds for the carrier's denial of benefits, we will not address that matter for the first time on appeal (emphasis added).
This statement suggests that the panel determined that Mrs. Simon did waive her claim. From there, the Panel continued:
We do note, however, that the carrier's Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21), which was not introduced into evidence at the CCH, but a copy of which is attached to the claimant's appeal, states as a reason for refusal of payment of benefits that there was no injury in the course and scope of employment. Considering that one issue at the CCH was whether the deceased suffered a compensable injury which resulted in his death, and that there was no issue with regard to the specific grounds for disputing compensability, we find no merit in the claimant's contention that the hearing officer had no authority to determine that the claimant's injury did not arise out of his employment (emphasis added).
While there is clearly unnecessary dicta in this portion of the Appeals Panel decision, we believe it is just thatdicta. The holding is that the panel will not consider the waiver issue, because Mrs. Simon was required to raise that issue at the BRC.[2] We do not believe it can be fairly said that the panel reached the merits of Mrs. Simon's waiver claim.
Next, Mrs. Simon argues that the issue of waiver was tried by consent. She points out that TWCIF admitted before the trial judge that her summary judgment motion was based on waiver. TWCIF responds that the summary judgment proceeding could hardly be characterized as trial by consent. We agree with TWCIF. We do not believe that simply because TWCIF agreed that Mrs. Simon's summary judgment motion was based on waiver, TWCIF allowed that issue to be tried by consent.
We find that TWCIF's initial notice that it was denying coverage was sufficient to put Mrs. Simon on notice that either or both prongs of liability were being contested. We further find that any complaint in this regard was waived when Mrs. Simon did not raise it at the BRC. The trial court erred in granting Mrs. Simon's Motion for Summary Judgment.
POINT OF ERROR THREE: DID THE INJURY ARISE FROM EMPLOYMENT?
The parties apparently now agree that the injury occurred in the course of scope of employment. Because employees may engage in acts that "minister to personal comfort" without leaving the course of their employment, Simon was covered for workrelated injuries while he stopped to take a drink from his Coke.[3]See Employers' Cas. Co. v. Bratcher, 823 S.W.2d 719, 721 (Tex. App.El Paso 1992, writ denied). In addition, both parties agree that insect stings have been held not to be acts of God and have been held to be compensable, at least where causation is established. See Standard Fire Ins. Co. v. Cuellar, 468 S.W.2d 880 (Tex.Civ.App.San Antonio 1971, writ ref'd n.r.e.); Travelers Ins. Co. v. Williams, 378 S.W.2d 110 (Tex.Civ.App.Amarillo 1964, writ ref'd n.r.e.). What the parties now disagree about is whether the injury arose from Simon's employment.
The question under this prong of liability is whether the injury would have occurred if the "conditions and obligations of employment had not placed the claimant in *736 harm's way." Bratcher, 823 S.W.2d at 721; see also Walters v. American States Ins. Co., 654 S.W.2d 423, 425 (Tex.1983). We believe fact issues remain on causation, and therefore Judge Canales was correct to deny TWCIF's summary judgment motion.
Both in its Motion for Summary Judgment and in its arguments to this court, TWCIF argues that causation has been refuted as a matter of law. Its summary judgment motion includes the affidavit of a professor of entomology at Texas A & M University, who testified that in August 1996, a year and a half after the event, there was not a bee problem at the Damco repair shop. Another expert affidavit stated that Simon was predisposed to a severe allergic reaction. We do not believe these affidavits meet TWCIF's summary judgment burden.
The first affidavit cannot negate causation because it does not speak to the conditions of the premises at the time of Simon's injury and death. See Citizens Ass'n for Sound Energy v. Boltz, 886 S.W.2d 283, 291 (Tex.App.Amarillo 1994, writ denied), cert. denied, 516 U.S. 1029, 116 S. Ct. 675, 133 L. Ed. 2d 524 (1995). In Boltz, the court of appeals held that an affidavit averring that the appellees did not currently belong to the organization at issue was not sufficient to raise a fact issue as to whether they belonged to the organization in 1989. Id. The court stated, on motion for rehearing, that the current membership status of the appellees was "irrelevant" to the issue of their past membership. Id. at 293 (on motion for rehearing). As in Boltz, the non-contemporaneous testimony in this expert's affidavit cannot negate causation.
Nor can the second affidavit offered by TWCIF negate causation. A preexisting condition will not preclude compensation under the Workers Compensation Act. See Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 652 n. 1 (Tex.1976); INA of Texas v. Howeth, 755 S.W.2d 534, 536 (Tex. App.Houston [1st Dist.] 1988, no writ). Whether Simon, because of prior exposure to bee venom, had a peculiar predisposition to severe allergic reactions does not resolve the issue of whether his work conditions placed him in harm's way. An accident arising from employment causes an injury if it is "a" cause, even if there are other causes. Baird v. Texas Employers' Ins. Ass'n, 495 S.W.2d 207, 211 (Tex.1973); Howeth, 755 S.W.2d at 537. The accident must still be a producing cause of the injury, Baird, 495 S.W.2d at 207, but the mere statement that the claimant suffered from a preexisting condition does not conclusively refute causation.
TWCIF relies on Bratcher to argue that a pre-existing condition does preclude recovery. In Bratcher, an employee died of an aneurysm while straining to have a bowel movement. Bratcher, 823 S.W.2d at 720. The court held that such a strain could have occurred at any time and therefore there was no causal relation between the injury and employment. Id. at 722.
Bratcher would indeed apply to this case if there were no evidence that the bee sting occurred incident to Simon's employment. Conversely, if the claimant in Bratcher had been lifting a beam or had in some other way been put in harm's way by a condition of his employment, his injury might have been compensable, even though he was obviously predisposed to suffering an aneurysm. TWCIF's summary judgment motion did not establish, as a matter of law, that the injury was not incident to employment; it merely argued that Simon was predisposed to an allergic reaction to bee stings and that, some time after the incident, an expert saw no sign of bees. Because the motion was insufficient to establish that TWCIF was entitled, as a matter of law, to a judgment in its favor, Mrs. Simon was not required to bring forward any evidence. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989).
But we find, additionally, that Mrs. Simon did have evidence that her husband's injury was incident to his employment. The Appeals Panel decision demonstrates that evidence of a relationship between the injury and employment did exist and was offered. According to that opinion, there was testimony that workers threw their garbage, including soda cans, into a trash can near the *737 repair shop.[4] In addition, a Damco employee testified before the Panel that bees would sometimes gather near the area. See Williams, 378 S.W.2d at 113 (wasps commonly flew around place of employment and deceased was stung while at work, so causal relationship existed between the two).
LUMP SUM ATTORNEY'S FEES
In its final point of error, TWCIF claims that the trial court erred in awarding lump-sum attorney's fees to Mrs. Simon's attorney. Under current law, it is not error to make a lump-sum award.
The Labor Code allows the commutation (lump-sum award) of attorneys' fees, except in death benefit cases where there is a dispute as to the proper beneficiaries. TEX. LAB.CODE ANN. § 408.221(d) (Vernon 1996). The beneficiaries are not in dispute here; the parties have stipulated that Mrs. Simon is the proper beneficiary.
TWCIF acknowledges that lump-sum awards traditionally have been permitted. However, TWCIF advances two arguments for why they no longer make sense and why they should not be allowed in this case. First, TWCIF argues that rules that forbid lump-sum awards after settlements, TEX. LAB.CODE ANN. §§ 408.005 and 410.256 (Vernon 1996), should be applied to adjudicated cases, as well. In addition, TWCIF notes that the Code requires that attorneys' fees come from the "claimant's recovery." See TEX. LAB.CODE ANN. § 408.221(b) (Vernon 1996). Because, in an award of death benefits, recovery is based on factors beyond the control of either party (such as the widow's remarriage), TWCIF argues that repayment of the lump sum cannot be guaranteed. In other words, Mrs. Simon could remarry tomorrowher benefits would be dropped, and TWCIF would be left with the attorneys' fee. In order to ensure that fees do, in actuality, come from the recovery, TWCIF argues that they should be paid periodically.
That lump-sum fees are expressly forbidden in settlements suggests that if the Legislature had wanted to forbid them in all cases, it easily could have done so. Moreover, if the court were to take TWCIF's suggestion, it would not, as TWCIF argues, be "harmonizing" § 408.221(d) (allowing commutation in death benefits cases where beneficiaries are not disputed) with § 408.221(b) (providing that fees must come from recovery); it would be rendering § 408.221(d) a nullity in death benefits cases.
We find that lump-sum awards in cases such as this are still permissible under the statute. See American States Ins. Co. v. Caddell, 644 S.W.2d 884, 888 (Tex.App. Tyler 1982, no writ) ("[t]he fact that the total amount of death benefits `recovered' cannot be definitely ascertained since the total amount of the payments is dependent on the time that the beneficiary survives or remains unmarried is immaterial to the lump sum award of attorney's fees"). We do not agree that the current Worker's Compensation Act is rendered inconsistent by such a finding. Allowing such awards discourages workers' compensation carriers from wrongfully disputing liability. Stott v. Texas Employers Ins. Ass'n, 645 S.W.2d 778, 780 (Tex.1983). Disallowing them where the parties have settled encourages carriers to settle claims. Id.
Next, TWCIF points out that in this case, the trial court did not take judicial notice of the Texas Widow's pension tables, which would have allowed a reasonably accurate calculation of the award. See Caddell, 644 S.W.2d at 887. In Caddell, the trial court had made a finding as to the present value of future benefits and ordered that one-fourth of that amount be paid as attorney's fees, in a lump sum. Id. On review, the appellate court took judicial notice of the tables and formulae in order to find that the trial court had properly assessed attorney's fees. Id. The court approved of that formula as a proper application of the formulae regarding lump sum awards of attorney's fees. However, the court also stated, "The amount of such fees and the method for their determination is a matter for the discretion of the trial court." Id.
*738 We find that a lump-sum award in this case is within the trial court's discretion. However, to the extent that TWCIF argues that the assessment of a lump-sum attorney fee award should be based on a finding of the present value of future benefits, we agree. Should Mrs. Simon be successful at trial, she should properly substantiate her request for attorneys' fees by asking the court to make such a finding. See Stott, 645 S.W.2d at 779 (approving of use of Texas Widow's Pension Table to estimate present value of future benefits); Ischy v. Twin City Fire Ins. Co., 718 S.W.2d 885, 887 (Tex.App.Austin 1986, writ ref'd n.r.e.) (trial court may rely on table to ascertain present value of future benefits).
CONCLUSION
Because TWCIF's summary judgment evidence did not sufficiently refute causation as a matter of law, we find that fact issues remain on that issue.[5] Judge Canales did not err in denying TWCIF's Motion for Summary Judgment. We remand this case for trial to determine whether Mr. Simon's injury arose from his employment and, should the evidence show that it did, to assess damages and fees.[6] In the event Mrs. Simon is successful in her claims, she must request a finding of the present value of her award in order to obtain attorney's fees in a lump sum.
NOTES
[1] The Act exempts acts of God from coverage unless "the employment exposes the employee to a greater risk of injury from an act of God than ordinarily applies to the general public." TEX. LAB.CODE ANN. § 406.032 (Vernon 1996). By using this language to contest liability, TWCIF was clearly invoking the act of God exception.
[2] Because the issue was waived, it could not have been before the appeals panel. Thus, even under Padilla, waiver was not properly before the trial court.
[3] TWCIF argued before the appeals panel that revisions to the Worker's Compensation Act may have eliminated or reduced this "personal comfort doctrine." While the former version required only that an employee's injury arise from employment to be compensable, the new version requires that the injury arise out of employment and that the activity engaged in by the employee arise out of employment as well. See TEX. LAB. CODE ANN. § 401.011(12) (Vernon 1996). TWCIF argued that this change might overrule cases holding that injuries sustained while the employee is refreshing himself are compensable. However, the Appeals Panel rejected this argument, and TWCIF does not urge it before this court.
[4] A trial court must consider the Appeals Panel decision in reaching a judgment. TEX. LAB.CODE ANN. § 410.304(b) (Vernon 1996).
[5] Mrs. Simon's summary judgment motion was based entirely on the waiver issue. She did not argue that causation was proven as a matter of law. Indeed, both parties acknowledge in their briefs to this court that whether an injury arose from employment must generally be decided after an intensive analysis of the facts.
[6] All other issues have been resolved. TWCIF has conceded that the injury arose in the course and scope of employment; we have determined, as a matter of law, that Mrs. Simon may not raise the issue of waiver when she did not raise it at the BRC. As TWCIF points out in its Motion for Rehearing, damages are to be assessed, in accordance with statutory guidelines, by the Worker's Compensation Commission. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619415/ | 38 So.3d 274 (2010)
Kathy PREJEAN
v.
Walter GUILLORY, et al.
No. 2010-C-0740.
Supreme Court of Louisiana.
July 2, 2010.
*275 PER CURIAM.[*]
Finding the Court of Appeal erred in concluding the Lafayette Housing Authority (LHA) breached Kathy Prejean's employment contract by firing her, we grant this writ solely to clarify the proper legal effect of LHA's termination of Prejean's employment.
*276 On February 15, 1995, by written contract, the Broussard Housing Authority (BHA) hired Prejean as executive director of its Section 8 Housing Program[1] for an initial five-year term, with an extension period of another five years.[2] Thereafter at HUD's request, the BHA consolidated with the Vermillion Parish Section 8 Housing Program. In conjunction with the consolidation, Prejean drafted[3] an addendum to her employment contract, which the BHA accepted by resolution passed on January 3, 2002, and which provided, in pertinent part:
1-That the [BHA] hereby retains and employs Kathy Prejean to be its Executive Director for a term of four (4) years commencing with the 1st day of January, 2002 and expiring January 1, 2006. In addition, it is further agreed by the parties hereto that this contract shall be extended for an additional four (4) years (the "extension period") upon the same terms and conditions at the option of [Prejean], unless the [BHA] gives [Prejean] by October 1, 2005, notice in writing that it will not extend the contract due to the inadequate performance of [Prejean]. The Board may make a finding of inadequate performance, after providing [Prejean] with written notice and an opportunity to be heard, upon a determination that a significant adverse audit finding (or adverse management review) by federal or state funding agencies has gone uncorrected for more than sixty (60) days due to action or inaction by [Prejean].
2-That [Prejean] hereby accepts employment and hereby agrees that for the consideration hereinafter set forth, he/ she shall perform the duties as the Executive Director in conducting the business of said [BHA] and perform the duties of Secretary to the Board Members at their regular, special and annual meetings.
In early 2004, without Prejean's knowledge, the BHA decided to transfer its Section 8 Housing Program to the LHA. On April 13, 2004, the BHA held a public meeting at the City Hall in Broussard, Louisiana, where it approved a resolution for the transfer. Several members of the LHA, including its executive director, Walter Guillory, were in attendance. After the passage of the resolution, the LHA members briefly left the meeting and conducted their own meeting, wherein they voted to accept the BHA's offer. Shortly thereafter, the LHA members returned to the BHA meeting to convey their acceptance.
Immediately following the adjournment of the BHA meeting, members of the BHA and LHA, along with Guillory, proceeded to the BHA office in Broussard. There a confrontation occurred between Guillory and Prejean concerning the keys to the office, which Prejean refused to relinquish to Guillory, for the purpose of securing the building to commence a final audit of the BHA's financial records. Eventually, Prejean and her staff left the building. That evening Prejean contacted the HUD offices in New Orleans. Upon returning to the BHA office the next morning, Prejean discovered the locks had been changed. After a phone conversation in which HUD officials, Prejean, and Guillory participated, *277 Guillory gave Prejean the new keys to the building and left. Prejean then had the locks re-changed.
That same day, Dominick Pittari, the New Orleans HUD Director, wrote the BHA's chairperson advising the BHA and the LHA had to comply with the provisions of La.Rev.Stat. § 40:411[4] for the transfer. In response, the LHA and the BHA filed a joint petition for a declaratory judgment ruling La.Rev.Stat. § 40:411 did not apply to the transfer, which petition the district court granted on August 30, 2004.
On October 5, 2004, Prejean filed suit against Guillory and the LHA for damages resulting from the "hostile takeover" of the BHA by the LHA. In her petition, Prejean sought "a permanent injunction prohibiting GUILLORY from invading her privacy, slandering her, harassing her or damaging her," and "a declaratory judgment that her employment contract with [BHA] is valid and enforceable and will become the lawful obligation of the [LHA][, according to its terms] after any formal consolidation occurs."
By November 2004, with HUD's approval of the transfer, Guillory assigned Tim Declouet to head the Broussard office. That same month, Prejean was diagnosed with cancer of her right breast, for which she underwent a mastectomy. By note dated November 2, 2004, Prejean's physician stated Prejean was scheduled for surgery on November 3, and excused her from work until November 22, 2004. By note dated November 11, 2004, Prejean's physician explained Prejean was scheduled for surgery on November 17, 2004, and would return to work after four weeks. Prejean was released to work on January 10, 2005, by noted dated December 9, 2004. In February 2005, Prejean was diagnosed with cancer of the left breast, for which she underwent a second mastectomy. By note dated February 10, 2005, Prejean's physician excused her from work for eight weeks following her surgery scheduled for February 16, 2005. Prejean was released to work on May 2, 2005, by her physician's note dated March 29, 2005, but that release date was extended to July 25, 2005, as stated in her physician's note dated April 25, 2005.
On May 16, 2005, Prejean was called by her staff to the Broussard office regarding the presence of IRS agents inquiring about the BHA's third quarter 941 Form, which should have been filed in late December of 2004 or early January of 2005. By May 17, 2005, Prejean had remedied the situation by filing the necessary form with the IRS.[5]
*278 During that same month, Guillory, with knowledge of Prejean's illness, looked into the Prejean's medical file with the LHA's human resources department, which contained her physician's notes, and discovered Prejean was excused from work until July 25, 2005. He then brought her absenteeism to the attention of the LHA's Board of Commissioners. On May 17, 2005, the LHA passed a resolution to terminate Prejean due to excessive absences and sent Prejean a letter informing her of her termination effective May 31, 2005. The letter, dated May 17, 2005, stated:
RE: Permanent Termination
Please be advised that the Lafayette Housing Authority Board of Commissioners voted unanimously in favor of terminating your employment for failure to perform effective May 31, 2005. Enclosed you will find a copy of the resolution, background, and a check for May 2005.[6]
The Board's decision is based on your being absent from your position of employment for over sixty (60) continuous days and uninterrupted days after exhausting all sick and annual leave days. During your absence you did not contact this Board to make any type of arrangements concerning your continued and interrupted absence from work.
In her First Supplemental and Amending Petition filed on February 22, 2008, Prejean sought damages for the LHA's breach of her employment contract by its wrongful termination of her employment.
Following a four-day bench trial, the District Court dismissed Prejean's claims based on her failure to carry her burden of proof regarding any negligence by the LHA or Guillory as well as to her entitlement to enforce her employment contract against the LHA. Finding legal error in the District Court's failure to apply the provisions of La.Rev.Stat. § 40:417,[7] the Court of Appeal, Third Circuit, reversed the district court's judgment on appeal. Prejean v. Guillory, 09-495 (La.App. 3 Cir. 1/13/10), 28 So.3d 1174.
*279 Conducting a de novo review of the record, the Court of Appeal concluded Prejean had a valid and legal employment contract with the BHA, and by operation of La.Rev.Stat. § 40:417(B), the LHA was responsible for honoring the contract. The appellate court further found Prejean carried her burden to prove the LHA breached that contract by firing her, and the LHA failed to carry its burden to prove Prejean had breached the contract by performing her job inadequately due to excessive absenteeism or otherwise. Therefore, the Court of Appeal concluded Prejean was entitled to recover under the terms of her employment contract from the LHA through December 2009, and rendered judgment accordingly.[8]See Prejean, 09-495 at pp. 34-35, 28 So.3d at 1195-96.
LAW AND DISCUSSION
"[W]hen a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law." Sims v. Mulhearn Funeral Home, Inc., 07-0054, p. 10 (La.5/22/07), 956 So.2d 583, 590. "Interpretation of a contract is the determination of the common intent of the parties." La. Civ.Code art. 2045. The reasonable intention of the parties to a contract is to be sought by examining the words of the contract itself, and not assumed. Sims, 07-0054 at p. 7, 956 So.2d at 589; McConnell v. City of New Orleans, 35 La. Ann. 273 (1883). "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La. Civ.Code art. 2046. Common intent is determined, therefore, in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. Accordingly, when a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit, as it is not the duty of the courts to bend the meaning of the words of a contract into harmony with a supposed reasonable intention of the parties. See Maloney v. Oak Builders, Inc., 256 La. 85, 98, 235 So.2d 386, 390 (1970); McConnell, 35 La. Ann. at 275. Most importantly, a contract "must be interpreted in a common-sense fashion, according to the words of the contract their common and usual significance." Lambert v. Maryland Cas. Co., 418 So.2d 553, 559 (La. 1982).
With these basic principles in mind, we examine the relevant provisions of the contract at issue, particularly the extension provision, which as noted above provided in pertinent part: "That the [BHA] hereby retains and employs Kathy Prejean ... for a term of four (4) years ... expiring January 1, 2006. In addition, ... this contract shall be extended for an additional four ... unless the [BHA] gives [Prejean] by October 1, 2005, notice in writing that it will not extend the contract due to the inadequate performance of [Prejean]." (Emphasis added).
*280 The language of Prejean's employment contract is explicit. Prejean's contract expired on January 1, 2006. However, the addendum also contained an extension period of four years, which would take effect unless the BHA provided Prejean written notice of its intent not to extend the contract due to her inadequate performance by October 1, 2005.
While the written notice provision posed no interpretative problems, the Court of Appeal took exception with the ambiguity of the phrase "inadequate performance." However, in accord with the longstanding rules of contractual interpretation, the general, ordinary, plain and popular meaning of the words "inadequate performance" is insufficient fulfillment of an obligation according to its terms. See Webster's New International Dictionary Unabridged, "Inadequate" (2d Ed.1955); Webster's, "Performance"; Black's Law Dictionary, "Inadequate" (6th Ed.1991); Black's, "Performance." Thus, under the terms of the contract at issue, Prejean's employer could refuse to extend her contract due to her insufficient fulfillment of an obligation arising from her employment.
The Court of Appeal was further critical of the sentence directly succeeding the extension provision and found it could not even determine whether a finding by the board of an adverse audit was the only form of inadequate performance justifying Prejean's termination or whether the language was merely illustrative of inadequate performance. Under our civilian tradition, however, "may" is permission. Jacobs v. City of Bunkie, 98-2510, p. 6 (La.5/18/99), 737 So.2d 14, 19; Underwood v. Lane Memorial Hosp., 97-1997, p. 4 (La.7/8/98), 714 So.2d 715, 717; La.Rev. Stat. § 1:3. Therefore, by the general, ordinary, plain and popular meaning of the word, this provision should be read as merely illustrative, not mandatory. Nevertheless, as the appellate court correctly noted, any ambiguity in a contract is construed against the drafter thereof. See Robinson v. Robinson, 99-3097, p. 18 (La.1/17/01), 778 So.2d 1105, 1122; Williams Engineering, Inc. v. Goodyear, 496 So.2d 1012, 1018 (La.1986). Because Prejean drafted the contract, inadequate performance by Prejean in any form would have justified her termination.
Therefore, to prevent the activation of the extension period under the terms of the contract, the LHA, as the BHA's successor, had to provide written notice of its intent not to extend the contract due to her inadequate performance. Through its letter dated May 17, 2005, the LHA provided Prejean with written notice of its intent not to extend her contract, clearly satisfying the addendum's written notice requirement well within the October 1 deadline.
Moreover, the record reflects three grounds upon which the LHA could have based its finding of inadequate performance. First, the record definitively shows Prejean was medically excused from work from November 2, 2004 through January 10, 2005, and from February 16, 2005 through July 25, 2005, both of which periods far exceeded the LHA's uncontested two-week paid sick leave policy.[9] Significantly, the only records of *281 Prejean's attendance were the medical excuses contained in her LHA medical file, and Prejean conceded to "someone looking at [her] file the beginning of May, it would look like [she] hadn't been at work from ... February 16th ... [a]nd [she wasn't] scheduled to come back until July 25th."[10] Therefore, based on her attendance record, the LHA had grounds for its finding of inadequate performance due to excessive absenteeism in that Prejean failed to fulfill her basic employment obligation of attendance. Second, according to the addendum's second paragraph, Prejean "shall ... perform the duties of Secretary to the Board Members at their regular, special and annual meetings." The record irrefutably shows Prejean never attended any LHA board meeting from April 2004 through May 2005, and, therefore, never performed her duties of secretary to the board at its meetings. Third, Prejean testified she was responsible for filing the BHA's 941 Forms with the IRS, which she failed to do in January 2005, prompting a visit from the IRS to the BHA office in May of that year. Therefore, the record supports the LHA had grounds for finding inadequate performance on the part of Prejean in failing to sufficiently fulfill her contractual obligations and did not breach her contract by its termination.[11]
We find, therefore, by its own terms, Prejean's contract expired on January 1, 2006, upon written notice of the LHA of its intention not to extend her contract due to inadequate performance. Consequently, Prejean is entitled to judgment awarding her seven months of salary for June through December 2005, plus interest from the date of judicial demand. We render judgment accordingly. Further, we render judgment dismissing Prejean's claims against Walter Guillory with full prejudice. The judgment of the Court of Appeal contrary to this holding is hereby reversed.
*282 DECREE
For the foregoing reasons, the judgment of the Court of Appeal finding Kathy Prejean was not properly terminated and awarding her salary through December 2009 is hereby reversed. Judgment is hereby rendered in favor of Kathy Prejean, awarding her seven months of salary from June through December 2005, plus interest from the date of judicial demand. Further, judgment is hereby rendered against Kathy Prejean and in favor of Walter Guillory, dismissing with prejudice all claims against Guillory.
REVERSED IN PART and RENDERED.
NOTES
[*] Kimball, C.J., did not participate in the deliberation of this opinion.
[1] Section 8 housing is a tenant-based program financed with vouchers consisting of federal funds through the Department of Housing and Urban Development (HUD) to provide suitable housing for tenants in homes offered by approved homeowners/landlords.
[2] Prejean actually began working for the BHA without contract in October of 1994.
[3] Prejean was assisted by Russell Moore from the New Orleans HUD office and by Kirk Davis, an attorney for HUD.
[4] La.Rev.Stat. § 40:411 provides:
A. If the governing body of each of two or more parishes in the same general geographical location, regardless of their population, declares by resolution that there is a need for one regional housing authority for both or all of such parishes, a public body corporate and politic known as a regional housing authority shall thereupon exist and exercise its powers and perform its functions in such parishes.
B. If the governing body of each of two or more municipalities, whether or not in the same general geographical location, declares by resolution that there is a need for one consolidated housing authority for both or all of such municipalities, a public body corporate and politic known as a consolidated housing authority shall thereupon exist and exercise its powers and perform its functions within its area of operation.
C. Regional and consolidated housing authorities may select appropriate corporate names for themselves.
[5] On the facsimile transmittal letter, Prejean wrote the following note of explanation for the late filings:
Yesterday I was told by IRS that the attach forms where [sic] not sent into there [sic] office. So this morning I went and turned in the 941 forms to I.R.S. [sic]. I was the one to do them before Lafayette Housing took over in Oct. 2004. But not a soul (person) ever gave them to me. At these times I was into the hospital battling the cancer. So I took care of there [sic] work for them.
[6] From April 2004 through May 2005, Prejean's salary was paid by check drafted from the BHA's bank account. However, from around November 2004 and onward, the checks were signed by Guillory and Jonathan Carmouche. Prior to that time, the checks had been signed by Prejean and the chairwoman of the BHA, Gertrude Batiste.
[7] La.Rev.Stat. § 40:417 provides:
A. The governing body of a parish or municipality shall not adopt a resolution pursuant to the provisions of R.S. 40:411 or 413 if there is an existing housing authority therefor which has any obligations outstanding unless:
(1) All obligees of the existing housing authority and the parties to its obligations consent in writing to the substitution of the regional or consolidated housing authority therefor on all such obligations.
(2) The commissioners of the existing housing authority adopt a resolution consenting to the transfer of all the rights, obligations and property thereof to the regional or consolidated housing authority.
B. When the two conditions in Subsection A are complied with and the regional or consolidated housing authority is created and authorized to exercise its powers and perform its functions, all rights, obligations and property of the former housing authority shall vest in the regional or consolidated housing authority and be in its name. All rights and obligations of the former housing authority shall be the rights and obligations of the regional or consolidated housing authority and may be asserted and enforced by or against the regional or consolidated housing authority as they might have been asserted and enforced by or against the former housing authority.
[8] Denying Prejean's request to remand the matter in order for her to prove further damages due her from the LHA's breach, the appellate court found the record before it was complete and, under the clear terms of the contract, Prejean was entitled to judgment awarding her seven months of salary for the months of June through December 2005. For the years 2006 through 2009, the appellate court found Prejean was entitled to the total amount of her monthly salary, with the four percent annual cost of living increase for each year. However, the appellate court found Prejean failed to prove her entitlement to recover her car allowance or health insurance benefits.
[9] Contrary to the Court of Appeal's finding, the record contains no evidence Prejean did not exceed her two-week paid leave allotment. Of the three co-workers/employees, who testified on Prejean's behalf, only Linda Anderson was employed during the "excused from work" time period in question, and although she testified Prejean came into work and work was delivered to Prejean's home, she did not know what Prejean's duties were nor could she say when or for how long Prejean was in the office during that period.
Prejean, herself, testified she could not work full days during this period and admitted she was not in contact on the days of her surgeries or the three to four days thereafter:
Two (2) weeks after my surgery in November, I was cutting the checks for the [BHA]. And I was doing my recertifications. And I was doing the input into the computer. I may not have stayed the full eight (8) hours, but I was at the office....
* * *
The only time I was not in contact is when I was undergoing surgery or recouping the three (3) to four (4) days after surgery.
Moreover, given the numerous surgeries, follow up procedures, treatments, and doctors' visits Prejean endured and as documented in the medical excuses and records admitted into evidence, even viewing the testimony in a light most favorable to Prejean, a reasonable person could not find Prejean did not exceed her allotted sick leave time, at the very least during the latter six-month period.
Additionally, LHA policy as testified to by both Prejean and Guillory required a person medically excused from work not be allowed to work for liability reasons. Prejean presented to the LHA numerous medical excuses in which her physicians ordered her not to work over a period of six months with each excuse further extending the prescribed "no work" period.
[10] Notably, the record is silent concerning any contact between the LHA and Prejean regarding arrangements for her continued absences, although Prejean did testified she asked Guillory, during her November 2004 assessment meeting held at his request, "for some time because I knew I was fixing to have another surgery." Both Guillory and Prejean testified, however, they never met in 2005 regarding her job performance, her ability to perform, or her illness and medically necessitated leave time. The record is further silent regarding any discussion between Prejean, Guillory, or the LHA concerning her February diagnosis. Prejean admittedly did not seek extended leave under the federal Family Medical Leave Act.
[11] Finding no breach, we pretermit discussion of all other assignments of error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4204304/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
DONALD MILES, : No. 117 MM 2017
:
Petitioner :
:
:
v. :
:
:
COMMONWEALTH OF PENNSYLVANIA, :
:
Respondent :
ORDER
PER CURIAM
AND NOW, this 18th day of September, 2017, the Application for Leave to File
Original Process is GRANTED, and the Petition for Review and the Petition for Writ of
Supersedeas are DENIED. | 01-03-2023 | 09-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1619486/ | 303 S.W.3d 926 (2010)
DALLAS COUNTY TAX COLLECTOR and City of Coppell Tax Collector, Appellants,
v.
Charles and Margaret ANDOLINA, Appellees.
No. 05-08-01086-CV.
Court of Appeals of Texas, Dallas.
January 26, 2010.
*927 Edward Lopez, Jr., Linebarger, Goggan, Blair and Sampson, L.L.P., Dallas, TX, for Appellants.
John M. Ledyard, Randal Lynn Telford, Irving, TX, for Appellees.
Before Justices MORRIS, BRIDGES, and MURPHY.
OPINION
Opinion By Justice MURPHY.
The Dallas County Tax Collector and City of Coppell Tax Collector (collectively, the Taxing Authorities) appeal a summary judgment granted in favor of Charles and Margaret Andolina, in their declaratory judgment action to establish whether the Andolinas are entitled to direct the payment of certain ad valorem taxes owed the Taxing Authorities. In three issues, the Taxing Authorities contend the trial court erred in granting the Andolinas' motion for summary judgment. We reverse the trial court's judgment and remand this case for further proceedings.
BACKGROUND
The Taxing Authorities held tax liens against the real and personal property of Horizon Landscape, LLP, a plant nursery and landscape company. In June 2004, Horizon filed for Chapter 11 bankruptcy protection and emerged under a confirmed reorganization plan the following year. The plan of reorganization designated the Taxing Authorities' liens as "Allowed Priority Creditor Claims" and provided:
The Priority Tax Credit Claims of [the Taxing Authorities] are for real estate taxes and business personal property ad valorem taxes. The Debtor believes the total amount to be approximately *928 $70,000.... The Tax Claim[1] of [the Taxing Authorities] will be allowed post-petition pre confirmation statutory interest at the rate of 12% per annum and post confirmation interest at the rate of 6% per annum[, the Taxing Authorities] shall retain [their] liens until paid in full.
As part of the confirmed plan, the bankruptcy court also approved the sale of Horizon's real and personal property to the Andolinas; Charles Andolina was a part owner of Horizon. The Andolinas bought the real and personal property of Horizon subject to the liens of the Taxing Authorities and other creditors. According to the bankruptcy court's Order Confirming the Second Amended Plan of Reorganization, the real and personal property purchased by the Andolinas would not transfer "unless and until the Debtor has sufficient funds to pay off the secured claims of [certain promissory note holders] and ad valorem taxes, in full in accordance with ... the Plan...."
In May 2005, the Andolinas closed on the real property purchased from Horizon. At closing, their agent, Chicago Title Insurance Company, collected $60,736.32 in taxes owed the Taxing Authorities. That amount, discovered through a title search, reflected the taxes owed on the real property only; Chicago Title did not account for or collect the remainder of the taxes owed under the confirmed plan. Shortly after closing, Chicago Title forwarded payment to the Taxing Authorities, explaining in a cover letter that the payment represented the taxes owed for the "following described property." The description that followed was a legal description for the real property. The Andolinas did not tender any amount to cover the personal property taxes owed the Taxing Authorities.[2] Upon receipt of the payment, the Taxing Authorities applied the money to the tax liens owed on the personal property and the remainder to the tax liens owed on the real property. Because the amount tendered was less than the total amount of the Tax Claims provided in the confirmed reorganization plan, the liens on the property remained. The Andolinas filed suit.
In their state court suit, the Andolinas sought "a declaration of the invalidity of certain documents and claims made by the [Taxing Authorities], in order to quiet title to Real Property in which the [Andolinas] claim[] an interest...." The Andolinas alleged the checks they sent the Taxing Authorities were meant to pay off the taxes assessed against the real property and asserted under Texas Tax Code section 31.07, they are permitted "to direct which taxes are to be paid."[3] They alleged that by applying the amounts to the personal property first, rather than to the real property as requested, the Taxing Authorities created a shortfall in the taxes owed against the real property. The Andolinas asked the trial court for a declaration that (1) they are entitled to designate which taxes are to be paid; (2) the Taxing Authorities failed to apply the taxes correctly; *929 and (3) they are entitled to have the proper amount credited and applied to the taxes owed on the real property. Thereafter, the Andolinas moved for summary judgment.
In response to the Andolinas' motion, the Taxing Authorities argued the Andolinas' suit was precluded because this issue was determined by the bankruptcy court as part of the proceedings that led to the sale of Horizon and the confirmed plan of reorganization. According to the Taxing Authorities, the confirmed plan established that they "retained their respective liens until paid in full." The Taxing Authorities therefore maintained the Andolinas' request to direct payment of the taxes owed would have the effect of extinguishing the liens on one or more classes of their claims in contradiction of the bankruptcy court's confirmation order. Because these matters were before the bankruptcy court and within the parameters of its confirmation order, the Taxing Authorities argued the trial court had no jurisdiction to grant the relief requested.
Without specifying the grounds upon which it based its ruling, the trial court granted the Andolinas' motion for summary judgment and ordered the Taxing Authorities to re-apply the amounts to the taxes associated with the real property. The trial court also ordered the Taxing Authorities to forfeit any penalties or interest assessed against the real property. The Taxing Authorities appealed.
DISCUSSION
Standard of Review
The standards for reviewing a traditional motion for summary judgment are well established. See Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied). Under Texas Rule of Civil Procedure 166a(c), the movant bears the burden of showing that no genuine issue of material facts exists and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003).
Our review in this case is limited to those issues addressing whether the trial court properly rendered summary judgment on the Andolinas' claim for declaratory relief based on the record before it. The Taxing Authorities did not file their own summary judgment motion. Rather, they filed a response to the Andolinas' motion, arguing the trial court had no jurisdiction over the case because the Andolinas were attempting to alter matters determined by the bankruptcy court. We begin with that issue.
Collateral Attack
In their first issue, the Taxing Authorities contend the trial court erred in rendering summary judgment in favor of the Andolinas because their action for declaratory relief constituted an impermissible collateral attack on the bankruptcy court's order confirming Horizon's plan of reorganization. The Taxing Authorities maintain the Andolinas' request to declare a distinction in the tax liens and direct their payment to the taxes owed on the real property disregards the confirmation order and acts as a request to extinguish the lien on the real property. They assert the real property liens were combined with *930 the personal property liens and allowed as a joint amount in the confirmed plan; under the plan, such liens could not be released until the Andolinas paid the amount in full. The Taxing Authorities argue the trial court allowed the Andolinas to "re-write" the bankruptcy court's order in a manner which diminished their rights. They contend these issues could or should have been raised in the bankruptcy court and are thus not subject to collateral attack.
A declaratory judgment is appropriate to settle and afford relief regarding existing rights, status, and other legal relations. TEX. CIV. PRAC. & REM.CODE ANN. § 37.002(b) (Vernon 2008); Bonham State Bank v. Beadle, 907 S.W.2d 465, 466 (Tex. 1995). A declaratory judgment action, however, may not be used to collaterally attack, modify, or interpret a prior judgment. Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 353-54 (Tex.App.-San Antonio 1999, pet. denied); Cohen v. Cohen, 632 S.W.2d 172, 173 (Tex.App.-Waco 1982, no writ). A collateral attack is an attempt to avoid the effect of a judgment "in a proceeding not instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment currently stands as a bar against." Browning v. Prostok, 165 S.W.3d 336, 346 (Tex.2005). Because the policy of the law gives finality to the judgment of the courts, collateral attacks on final judgments are generally disallowed. Id. at 345 (citing Tice v. City of Pasadena, 767 S.W.2d 700, 703 (Tex.1989)).[4] Only void judgments may be collaterally attacked. Prostok, 165 S.W.3d at 346 (citing Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985)). A judgment is void when it is apparent the court rendering judgment "had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court." Placke, 698 S.W.2d at 363; see also Sigmar v. Anderson, 212 S.W.3d 789, 793 (Tex.App.-Austin 2006, no pet.). The Andolinas do not contend the bankruptcy court's order confirming Horizon's plan of reorganization was void. Therefore, any collateral attack on the bankruptcy court's confirmation order must fail. Prostok, 165 S.W.3d at 346; Sigmar, 212 S.W.3d at 793.
The primary purpose of the Andolinas' request for declaratory relief was to quiet title to the real property purchased from Horizon by having their payment for a portion of the taxes owed the Taxing Authorities applied to the real property. The Andolinas admit the bankruptcy court's order "contemplates that the taxes are to be paid on both the real and personal property" and that under a broad reading, the tax liens are combined. They contend, however, that the confirmation order can be read as separating the liens on the real property from those placed on the personal property and assert their declaratory judgment action does not require the trial court to construe the provisions dealing with the tax claims in any manner. As support, the Andolinas rely on provisions in the Texas Tax Code, which distinguish between real and personal property. See, e.g., TEX. TAX CODE ANN. §§ 1.04 (defining *931 and distinguishing real property from personal property), 11.01 (providing State tax assessments against real and personal property), 32.01 (providing taxing entity may impose lien on property to secure payment of tax) (Vernon 2008). The Andolinas posit that because the tax code does not give the Taxing Authorities the right to impose a lien on real property to secure the payment of personal property taxes, their suit for a declaration that they may direct payment of the taxes owed the Taxing Authorities under section 31.07 does not contravene the bankruptcy court's confirmation order. We disagree.
A plain reading of the confirmation order and reorganization plan contradicts the Andolinas' theory. The bankruptcy court's order approving the sale of Horizon to the Andolinas states "there shall be no transfer of the Real Property or Personal Property" until the tax liens are paid in full. Horizon's confirmed plan of reorganization further describes the treatment of the Taxing Authorities' class of claims and provides the Taxing Authorities "shall retain [their] liens until paid in full." The Taxing Authorities' allowed "Tax Claims" are "for taxes owed on the property" of Horizon and purchased by the Andolinas. These provisions do not allow the Taxing Authorities to impose a lien on real property to secure the personal property taxes. Rather, under the plan, the lien imposed on the real property is combined with the lien imposed on the personal property to create a "total amount" owed for the real and personal property tax claims; the total amount of the tax claims was approximately $70,000. Thus, the language used in the bankruptcy court's order and confirmed plan shows the Taxing Authorities' claims were allowed for approximately $70,000 and that the liens on either property would be protected until the Tax Claims were paid in full.
The Andolinas maintain they are not seeking to avoid the tax liens or disturb the confirmation order. They assert their declaratory judgment action "merely ask[s] the trial court to grant them the relief they were afforded under Texas Tax Code § 31.07 as owners and taxpayers of the subject real and personal property." The Andolinas' action, however, necessarily calls into question certain legal implications of the confirmed reorganization plan, specifically, the terms of the sale of Horizon and the treatment afforded the Taxing Authorities' claims. Prostok, 165 S.W.3d at 346-47. The effect of a declaration in the Andolinas' favor ignores the language in the confirmed plan requiring the taxes on both the real and personal property to be paid in full before title on either property transferred to the Andolinas and extinguishes the Taxing Authorities' lien on the real property, diminishing their rights under the confirmed plan. This is an impermissible collateral attack. Id. at 348-49; In re French Gardens, Ltd., 58 B.R. 959, 963 (Bankr.S.D.Tex.1986) ("Though an action may have an independent purpose and may contemplate some other relief, it is a collateral attack if it must in effect overrule a previous judgment."). The Andolinas may not now invoke the tax code and seek a declaration which would require the trial court to interpret the bankruptcy court's treatment and result in a modification of the Taxing Authorities' claims under the confirmed plan. See Martin, 2 S.W.3d at 353-54; Cohen, 632 S.W.2d at 173; see also Speaker v. Lawler, 463 S.W.2d 741, 742-43 (Tex.Civ.App.-Beaumont 1971, writ ref'd n.r.e.) (holding litigant cannot use Uniform Declaratory Judgment Act for purpose of asking trial court to interpret prior judgment of another court).
As purchasers of Horizon's property and Charles Andolina's part ownership of Horizon, *932 the Andolinas participated in the bankruptcy proceedings and were aware of the provisions dealing with the Taxing Authorities' claims. The amount owed the Taxing Authorities and the liens placed on the real and personal property were certainly at issue in the bankruptcy proceedings; the confirmed plan even contemplated how these claims would be paid "out of the revenue from the continued operations of the business" by the Andolinas. Consequently, any theory concerning the application of tax code section 31.07 to the Tax Claims should have been raised in the bankruptcy proceedings prior to confirmation. Prostok, 165 S.W.3d at 348-49; Sigmar, 212 S.W.3d at 795 (discussing Prostok and stating "issues that either were or should have been litigated in a prior judicial proceeding, including a bankruptcy proceeding, cannot be relitigated in a subsequent proceeding that would have the effect of avoiding the prior court order or judgment"); Henderson v. Chambers, 208 S.W.3d 546, 553 (Tex.App.-Austin 2006, no pet.) (holding claims of fraudulent conduct at issue in current suit were intrinsic to prior divorce action and barred as impermissible collateral attack).
Because their declaratory judgment action constitutes a collateral attack on the bankruptcy court's order confirming Horizon's plan of reorganization, the Andolinas did not establish they were entitled to judgment as a matter of law. Accordingly, the trial court erred in granting their motion for summary judgment. See TEX.R. CIV. P. 166a(c). We sustain the Taxing Authorities' first issue.
CONCLUSION
We conclude the Andolinas' suit for declaratory relief constitutes an impermissible collateral attack on the bankruptcy court's confirmation order. Having resolved the first issue in the Taxing Authorities' favor, we do not reach the Taxing Authorities' remaining issues. We reverse the trial court's judgment and remand this case for further proceedings consistent with this opinion.
NOTES
[1] The plan defined "Tax Claim" as "any Claim entitled to priority under Section 507(a)(8) of the Code and shall include the claims of taxing authorities for taxes owed on the property retained by the Debtor under this Plan."
[2] In fact, the Andolinas conceded that "[t]he taxes owing on the personal property were neither collected by Chicago Title nor subsequently paid by [them]."
[3] Texas Tax Code section 31.07(a) provides: "A person may pay the tax imposed on any one property without simultaneously paying taxes imposed on other property he owns." TEX. TAX CODE ANN. § 31.07(a) (Vernon 2008).
[4] In Browning v. Prostok, the Texas Supreme Court noted that the policy of finality "is especially important in a Chapter 11 bankruptcy, where the proceedings are intended to rehabilitate a business.... If the rehabilitative purpose of Chapter 11 is to be realized, Chapter 11 proceedings must be `concluded with reasonable expedition and finality so as to allow certainty for future business planning.'" Prostok, 165 S.W.3d. at 346 (quoting In re Newport Harbor Assocs., 589 F.2d 20, 22 (1st Cir.1978)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619492/ | 303 S.W.3d 302 (2009)
Hernan Arquimides RAMOS, Appellant,
v.
The STATE of Texas.
No. PD-0812-08.
Court of Criminal Appeals of Texas.
November 18, 2009.
Rehearing Denied February 24, 2010.
*303 Norman J. Silverman, Houston, for appellant.
Dan McCrory, Asst. D.A., Houston, Jeffrey L. VanHorn, State's Attorney, Austin, for State.
HOLCOMB, J., delivered the opinion of the Court, in which MEYERS, PRICE, JOHNSON, KEASLER, and COCHRAN, JJ., joined.
We granted review in this case to determine: (1) whether our state felony forgery statute covers the forgery of a Social Security *304 card[1] and (2) whether a jury must be instructed that in the definition of the felony forgery offense, the term "instrument" means "negotiable instrument." We answer the first question in the affirmative and the second question in the negative.
On May 13, 2005, a Harris County grand jury returned an indictment charging Hernan Arquimides Ramos with felony forgery of a government instrument under Texas Penal Code § 32.21(b) and (e)(3).[2] The indictment alleged in relevant part that on or about April 2, 2005, in Harris County, Ramos:
"did then and there unlawfully, and with intent to defraud and harm another, forge a writing, namely a government instrument issued by the United States, attached hereto as Exhibit A, which purported to be the act of another who did not authorize that act, by possessing it with intent to utter it, and while knowing it was forged."
"Exhibit A" was a photocopy of the front and back of a card which appeared to be, but was in fact not, a genuine Social Security card issued by the Social Security *305 Administration, an agency of the United States Government.
On May 31, 2006, the State brought Ramos to trial before a petit jury on his plea of not guilty. At the guilt stage of that trial, the State presented evidence that on May 2, 2005,[3] in the parking lot of a Home Depot store in Harris County, Ramos sold a forged Social Security card to an undercover police informant. The forged card was identical to the one pictured in the indictment's "Exhibit A."
At the close of the evidence at the guilt stage, Ramos asked the trial court to instruct the jury that the term "instrument" as used in the definition of the felony forgery offense meant "negotiable instrument," in accordance with the definition in Texas Business and Commerce Code § 9.102(47). The trial court denied the request. The jury later found Ramos guilty as charged in the indictment. The trial court assessed his punishment at imprisonment for five years.
On direct appeal, Ramos argued that the evidence adduced at his trial had been legally insufficient to support his conviction for felony forgery of a government instrument. See Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981) (discussing the law of legal sufficiency). Ramos also argued that the trial court had erred in failing to instruct the jury that the term "instrument" as used in the definition of the felony forgery offense meant "negotiable instrument."[4] The court of appeals rejected Ramos's arguments and affirmed the judgment of the trial court. Ramos v. State, 264 S.W.3d 743, 747-753 (Tex.App.-Houston [1st Dist.] 2008).
Ramos later filed a petition for discretionary review asserting three grounds for review, all of which we granted. See Tex. R.App. Proc. 66.3(d). In his first two grounds for review, Ramos argues that the court of appeals misconstrued the term "instrument" as used in Texas Penal Code § 32.21(e)(3), the felony forgery statute, to encompass a Social Security card and that, because of that misconstruction, the court of appeals erroneously held the evidence legally sufficient to support his conviction. More specifically, Ramos, in his first two grounds, argues that: (1) Texas Government Code § 311.011(b) requires that statutory terms that have an acquired technical meaning must be construed accordingly; (2) the term "instrument" as used in the felony forgery statute has an acquired technical meaning, originating in Texas Business and Commerce Code § 9.102(47), and that meaning is "negotiable instrument," which does not encompass a Social Security card; (3) the dictionary itself defines "instrument" as "a writing that comprises the formal expression of a legal act or is otherwise negotiable," and that definition also does not encompass a Social Security card; (4) in the original version of the felony forgery statute, *306 enacted in 1973, the term "instrument" "carried a narrow meaning as the provision described a discreet [sic] category of writings that [were] negotiable"; (6) in 1991, "the forgery statute was amended to add a category of certain types of government records, but the ... mere insertion of an additional category of writings should not be interpreted so as to broaden the original meaning of the term `instrument'"; (7) "if the term `instrument' were meant to have a broad definition so as to include any document generated by the government, there would be no purpose in the Legislature's careful specification [of] the various types of government documents [the forgery of] which constitute[s][a] third degree felony"; and (8) "[t]here was no evidence at trial that a social security card is a `government instrument.'"
In his third ground for review, Ramos argues that the court of appeals erred in holding that the trial court did not err in failing to instruct the jury that the term "instrument" as used in the felony forgery statute meant "negotiable instrument." Ramos argues further that "the term `instrument'[as used in the felony forgery statute] is a term of art that has acquired a technical legal meaning and therefore should have been defined [for the jury] with its technical legal meaning."
We turn first to Ramos's first two grounds for review. In those grounds, Ramos argues in effect that Texas Penal Code § 32.21(e)(3), the felony forgery provision under which he was indicted and convicted, does not cover the forgery of a Social Security card and that, therefore, the evidence adduced at his trial was legally insufficient to support his conviction. See footnote two, supra. This argument requires us to construe the phrase "other instruments issued by a state or national government or by a subdivision of either" as used in § 32.21(e)(3) and determine whether that statutory language encompasses a Social Security card.
Statutory construction is a question of law, and our review is de novo. Williams v. State, 253 S.W.3d 673, 677 (Tex.Crim.App.2008). When construing a statutory provision, our constitutional obligation is to attempt to discern the fair, objective meaning of that provision at the time of its enactment. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). When attempting to discern that fair, objective meaning, we may consult standard dictionaries. Ex parte Rieck, 144 S.W.3d 510, 512 (Tex.Crim.App.2004).
When we construe a statute that, like § 32.21(e), has been amended, we must construe it as if it had been originally enacted in its amended form.[5]United States v. La Franca, 282 U.S. 568, 576, 51 S. Ct. 278, 75 L. Ed. 551 (1931); Blair v. Chicago, 201 U.S. 400, 475, 26 S. Ct. 427, 50 L. Ed. 801 (1906); Schlichting v. Texas Bd. of Med. Exam., 158 Tex. 279, 310 S.W.2d 557, 563 (1958); N. Singer & J. Singer, Statutes and Statutory Construction § 22:35 (7th ed. 2009); 82 C.J.S. Statutes § 373 (1999).[6] We must take the amended *307 statute as it reads today, mindful that the Legislature, by amending the statute, may have altered or clarified the meaning of earlier provisions. 82 C.J.S. Statutes § 373 (1999).
If we conclude that the meaning of the statutory provision in question is plain, then we give effect to that plain meaning, as long as it does not lead to an absurd result. Boykin v. State, 818 S.W.2d at 785. Finally, statutory terms not legislatively defined are generally construed as common usage allows, but terms that have an acquired technical meaning are generally construed in their technical sense. Medford v. State, 13 S.W.3d 769, 771-772 (Tex.Crim.App.2000).
As we noted previously, Ramos's argument requires us to construe § 32.21(e)(3)'s phrase "other instruments issued by a state or national government or by a subdivision of either." In order to do that, we must first construe the term "instrument." "Instrument" is not defined in the Penal Code, but does that term nevertheless have an acquired technical meaning? Ramos argues that it has the technical meaning assigned by Texas Business and Commerce Code § 9.102(47), i.e., that the term "instrument" as used in § 32.21(e)(3) means "negotiable instrument." We are not persuaded. The fact that the term "instrument" means "negotiable instrument" in the Business and Commerce Code does not require that term to have the same meaning in the Penal Code. The two codes are, by and large, unrelated. Furthermore, read in context, the term "instrument" as used in § 32.21(e)(3) does not appear to be limited to negotiable instruments. Subsection (e)(3)'s use of the phrase "other instruments" implies that the items listed in subsections (e)(1) and (e)(2) are also "instruments," and many of those listed items are not negotiable instruments. In short, our reading of § 32.21(e) leads us to conclude that the Legislature intended to punish as a third-degree felony the forgery of any "instrument" issued by government, regardless of whether that "instrument" was negotiable. Such a reading would not appear to lead to an absurd result.
If the term "instrument" as used in § 32.21(e)(3) does not have an acquired technical meaning, then what meaning does common usage allow? The Oxford English Dictionary defines "instrument" in pertinent part as "a formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form, so as to be of legal validity." Oxford English DictionaryCompact Edition, vol. I, p. 1453 (1971). The O.E.D. defines "document," in turn, as "something written, inscribed, etc., which furnishes evidence or information upon any subject." Id., vol. I, p. 781. And the O.E.D. defines "writing" as "that which is in written (now also typewritten) state or form." Id., vol. II, p. 3842.
Given these dictionary definitions, we conclude that in common usage, the term "instrument" is broad enough to encompass a Social Security card and, therefore, that the phrase "other instruments issued by a state or national government or by a subdivision of either," as used in Texas Penal Code § 32.21(e)(3), also encompasses a Social Security card. We *308 overrule Ramos's first two grounds for review.
We turn next to Ramos's third ground for review, in which he argues that the court of appeals erred in holding that the trial court did not err in failing to instruct the jury that the term "instrument" as used in the felony forgery statute meant "negotiable instrument." As we noted previously, Ramos argues further that "the term `instrument'[as used in the felony forgery statute] is a term of art that has acquired a technical legal meaning and therefore should have been defined [for the jury] with its technical legal meaning."
"As a general rule, terms need not be defined in the [jury] charge if they are not statutorily defined. But terms which have a technical legal meaning may need to be defined." Middleton v. State, 125 S.W.3d 450, 454 (Tex.Crim.App.2003). The term "instrument" as used in § 32.21(e)(3) does not have a statutory definition or a technical legal meaning. Therefore, the court of appeals did not err in holding that the trial court did not err in failing to define the term for the jury. We overrule Ramos's third ground for review.
We affirm the judgment of the court of appeals.
KELLER, P.J., filed a dissenting opinion.
HERVEY, J., concurred in the result.
WOMACK, J., dissented.
KELLER, P.J., dissenting.
"Instrument" can have a variety of meanings. One very broad meaning is: "Anything reduced to writing, a document of a formal or solemn character, a writing given as a means of affording evidence."[1] The State and the Court adopt this "anything reduced to writing" definition.
A very narrow definition describes an instrument as: "A negotiable instrument... or a security ... or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in the ordinary course of business transferred by delivery with any necessary indorsement or assignment."[2] Appellant adopts this "negotiable instrument" definition. I agree with appellant for three reasons.
In construing a statute, we should look to the plain meaning of its text unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not possibly have intended.[3] We generally presume that the entire statute is intended to be effective.[4]
The relevant statute provides that an offense is a third degree felony if the writing that is forged is or purports to be:
(1) part of an issue of money, securities, postage or revenue stamps;
*309 (2) a government record listed in Section 37.01(2)(C); or
(3) other instruments issued by a state or national government or by a subdivision of either, or part of an issue of stock, bonds, or other instruments representing interests in or claims against another person.[5]
I. Redundancy
The first thing that is noteworthy here is that the Court's interpretation would render part of the forgery statute redundant: the broad construction of "other instruments" in § 32.21(e)(3) would swallow the "government records" category outlined in § 32.21(e)(2).[6] Subsection (e)(2) covers a writing that is or purports to be "a government record listed in Section 37.01(2)(C),"[7] which, in turn, defines a "governmental record" as "a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States."[8] If an "instrument" is any formal document that evidences a fact, then all government records covered in subsection (e)(2) are also "instruments" under subsection (e)(3) because they all evidence facts. Another problem is that subsection (e)(2), by incorporating § 37.01(2)(C), contains its own "catch-all" provision: "similar documents." So subsection (e)(3) is not needed as a catch-all provision to subsection (e)(2). If we presume that the legislature did not intend these redundancies, then we must look to a narrower definition of the term "instrument."
II. Amendment of Statute
The second important consideration is the history of the statute. Subsection (e)(2) was added in 1991.[9] Before the amendment, subsection (e) contained the text now found in subsections (e)(1) and (e)(3), without division, covering a writing that is or purports to be "part of an issue of money, securities, postage or revenue stamps, or other instruments issued by a state or national government or by a subdivision of either, or part of an issue of stock, bonds, or other instruments representing interests in or claims against another person."[10] It seems to me that, under the prior version of subsection (e), the phrase "other instrument" clearly applied only to negotiable instruments.
The legislature obviously intended to broaden the scope of subsection (e) of the forgery statute when it added subsection (e)(2). The question is whether the legislature intended to broaden subsection (e) simply by adding a new category, found in subsection (e)(2), or whether the insertion of subsection (e)(2) in the middle of subsection (e) was intended to change the meaning of what is now subsection (e)(3). It is hard to imagine that the legislature, by leaving the wording of (e)(3) unchanged, meant to change its meaning. If its meaning was not changed, it still applies only to negotiable instruments and therefore not to social security cards.
III. Social Security Card is a "Certificate"
Finally, even if "other instruments" were construed to include documents that simply memorialize facts, another problem arises. If a document is covered by subsection (e)(2), then it would not be an *310 "other instrument" under subsection (e)(3). A social security card would appear to be a "certificate" or a "similar document" under subsection (e)(2). Therefore, because a social security card is covered by subsection (e)(2), it does not constitute an "other instrument" under subsection (e)(3).
I respectfully dissent.
NOTES
[1] We note that it is also a federal offense to forge such a card. Under 42 U.S.C. § 408, a person commits a felony, punishable by fine or imprisonment or both, when, for the purpose of obtaining a benefit to which he is not entitled, or of obtaining anything of value from anyone, he "knowingly ... counterfeits a social security card."
[2] Our state forgery statute, Texas Penal Code § 32.21, provides:
"(a) For purposes of this section:
(1) "Forge" means:
(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
(i) to be the act of another who did not authorize that act;
(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
(iii) to be a copy of an original when no such original existed;
(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A); or
(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B).
(2) "Writing" includes:
(A) printing or any other method of recording information;
(B) money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and
(C) symbols of value, right, privilege, or identification.
(b) A person commits an offense if he forges a writing with intent to defraud or harm another.
(c) Except as provided in Subsections (d) and (e) an offense under this section is a Class A misdemeanor.
(d) An offense under this section is a state jail felony if the writing is or purports to be a will, codicil, deed, deed of trust, mortgage, security instrument, security agreement, credit card, check, authorization to debit an account at a financial institution, or similar sight order for payment of money, contract, release, or other commercial instrument.
(e) An offense under this section is a felony of the third degree if the writing is or purports to be:
(1) part of an issue of money, securities, postage or revenue stamps;
(2) a government record listed in Section 37.01(2)(C); or
(3) other instruments issued by a state or national government or by a subdivision of either, or part of an issue of stock, bonds, or other instruments representing interests in or claims against another person.
(f) A person is presumed to intend to defraud or harm another if the person acts with respect to two or more writings of the same type and if each writing is a government record listed in Section 37.01(2)(C)." (Emphasis added.)
Texas Penal Code § 37.01(2)(C), in turn, provides that "government record" means "a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States."
[3] The date of the offense proved at trial was thus somewhat different from the date of the offense alleged in the indictment.
[4] It appears that during the pendency of Ramos's direct appeal, the federal government deported him from the United States. See Ramos v. State, 264 S.W.3d 743, 746 (Tex. App.-Houston [1st Dist.] 2008) (noting the deportation). The record reflects that after his deportation, Ramos continued to prosecute his appeal. It might be argued that Ramos's deportation mooted his appeal or otherwise affected his right to appeal. The State has never advanced such arguments, however, and we did not grant review to consider them. But see Cuellar v. State, 13 S.W.3d 449, 451-52 (Tex.App.-Corpus Christi 2000, no pet.) ("An appellant who complies with the rules of appellate procedure should not lose his right to appeal when he is expelled from the country and is legally unable to return to the custody of the State, particularly when the conviction affects his right to reenter the country at a later date.").
[5] Texas Penal Code § 32.21(e), enacted in 1973, originally read as follows:
"(e) An offense under this section is a felony of the second degree if the writing is or purports to be part of an issue of money, securities, postage or revenue stamps, or other instruments issued by a state or national government or by a subdivision of either, or part of an issue of stock, bonds, or other instruments representing interests in or claims against another person." Acts 1973, 63rd Leg., p. 883, ch. 399, § 1.
The Legislature later amended § 32.21(e) to read as it does today.
[6] According to 82 C.J.S. Statutes § 373 (1999):
"An amended act is ordinarily construed as if the original statute had been repealed, and a new and independent act in the amended form had been adopted in its place. As far as any action after the adoption of the amendment is concerned, it is as if the statute had been originally enacted in its amended form. The amendment becomes a part of the original statute as if it had always been contained therein."
[1] Black's Law Dictionary (5th ed. 1979).
[2] Id.
[3] Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.App.1991). The Court contends that we must construe a statute as if it had been originally enacted in its amended form. Court's op. at 306-07. Though the Court recites this supposed rule as if it were firmly established, no precedent from this Court is cited, and I am aware of none. I need not address whether this rule is a corollary of the plain text approach in Boykin or something else entirely. Even if this rule were somehow incorporated into the Boykin framework, the outcome of the case would not change for the reasons provided in this opinion.
[4] Ex parte Forward, 258 S.W.3d 151, 154 (Tex.Crim.App.2008); TEX. GOV'T CODE § 311.021(2).
[5] TEX. PENAL CODE § 32.21(e).
[6] Compare id., § 32.21(e)(2), (3).
[7] Id., § 32.21(e)(2).
[8] Id., § 37.01(2)(C).
[9] See Acts 1991, 72nd Leg., ch. 113, § 2.
[10] Tex. Penal Code § 32.21(e)(West 1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619548/ | 152 So. 2d 261 (1963)
Lester F. ALEXANDER, Jr.
v.
Joseph D. LINDSAY et al.
No. 959.
Court of Appeal of Louisiana, Fourth Circuit.
April 1, 1963.
Rehearings Denied May 6, 1963.
Certiorari Refused June 28, 1963.
*263 Milling, Saal, Saunders, Benson & Woodward, W. S. Shirley, Jr., New Orleans, for plaintiff-appellant.
Pilie, Nelson & Limes, M. Arnaud Pilie, New Orleans, for defendants-appellees.
Before YARRUT, JANVIER and HALL, JJ.
HALL, Judge.
This is a stockholder's derivative action brought by plaintiff as the owner of 50% of the stock of Pecan Isle Corporation in which he seeks to compel the return to the corporation of funds which he avers were illegally and improperly disbursed, primarily to its officers-directors.
Plaintiff's original petition named Joseph D. Lindsay, a director and president of the corporation, as the only individual defendant. Lindsay filed an answer to which he attached a resolution, adopted by the two other directors subsequent to the suit, purportedly ratifying all disbursements made by Lindsay as president of the corporation. Thereafter plaintiff, by supplemental petition joined these two directors (Rene A. Harris and Bernard W. Tabony, Jr.) as parties defendant.
After trial on the merits judgment was rendered in favor of all three defendants, dismissing plaintiff's suit. Plaintiff appealed.
Pecan Isle Corporation is a Louisiana corporation organized for the principal purpose of subdividing, developing and selling campsites on a 7-acre island in False River in Point Coupee Parish. It was organized in September 1960 with a paid-in capital, of $1,000.00 represented by 10 shares of stock having a par value of $100.00 each. The incorporators, directors, officers and sole stockholders were the three defendants, namely:
Joseph D. Lindsay, President, 4 shares
Rene A. Harris, Vice-president, 5 shares
Bernard W. Tabony Jr., Secretary-Treasurer, 1 share.
In March 1961 plaintiff, at the request of the defendants, invested $20,000.00 cash in the corporation, for which he was issued 10 shares of its stock and $100,000.00 of unsecured, non-interest bearing notes of the corporation.
At a joint meeting of the stockholders and directors of the corporation held at that time (March 13, 1961) plaintiff was elected as an additional vice-president but not a director, the three member Board of Directors remaining as originally constituted. At this same meeting a resolution was adopted authorizing Joseph D. Lindsay as president to sign all checks, notes and obligations of the corporation, and to execute all legal documents pertaining to its business.
At the time plaintiff made his investment the corporation had no money and owed the full purchase price of $25,000.00 on its only asset which was the small island in False River. The record reveals that within six months the $20,000.00 cash received from plaintiff had been expended by means of checks signed by Lindsay, the corporation was without funds, still owed the purchase price of the island, and had made no appreciable improvements on the property.
Plaintiff complains that the defendants led him to believe his $20,000.00 investment would be used to develop and improve the property, but, instead, some of the money was used to pay accumulated debts and the remainder was illegally paid to its officers-directors for "services" and travelling and other expenses. He complains *264 particularly of the following disbursements, totalling $15,767.00:
A. Payments made to Lindsay or his
wholly owned corporations
Lindsay Realty Corporation $ 6,300.00
Lindsay Realty Corporation
and Pontchatrain
Development Corporation 5,400.00
Travel expenses 450.00
Motels 105.00
__________
Total to Lindsay $12,255.00
B. Payments made to Tabony
For supervising $ 2,525.00
C. Payments made to Harris
Engineering fee $ 800.00
Out of pocket expense 187.00
__________
$ 987.00.
Other items complained of were disbursements made to pay debts of the corporation which existed prior to plaintiff's investment therein, such as an indebtedness for gravel, for newspaper advertising and for attorney's fees.
It should be borne in mind, as the District Judge emphasized in his written reasons for judgment, that this action is a stockholder's derivative action seeking recovery in the name of and for the benefit of the corporation of funds allegedly disbursed illegally and without authority of its Board of Directors. (See Fletcher Cyclopedia of Corporations, Vol. 5, Ch. 16, Sec. 2170-1, p. 644). Plaintiff is not seeking here to set aside his stock purchase and loan agreement. In fact plaintiff is seeking no relief personally. For this reason whether the defendants as individuals made any false representations or promises to plaintiff in order to induce him to invest in the corporation is immaterial. The sole question is whether the disbursements complained of may be recovered by the corporation as being illegal or not properly authorized by the directors.
Before considering the disbursements in detail it is necessary to observe that, in our opinion, Lindsay Realty Corporation and Pontchatrain Development Corporation are mere creatures of the defendant, Joseph D. Lindsay. He is the president of both corporations and he and his wife are the sole stockholders, hence the disbursements made to these two corporations must stand on the same footing as though made to Lindsay personally.
The $6,300.00 item paid to Lindsay Realty Corporation represented the repayment of loans and advances made to Pecan Isle Corporation by Lindsay and Lindsay Realty Corporation prior to plaintiff's investment. This indebtedness was well known to all of the original stockholders and directors of Pecan Isle Corporation and they acquiesced in its repayment. A careful reading of the record convinces us that the indebtedness was made known to plaintiff at the time of his investment and that he likewise acquiesced in its repayment. Manifestly Pecan Isle Corporation has no right to recover this disbursement since it was acquiesced in by all of its directors and all of its stockholders including plaintiff.
The $5,400.00 item was paid to Lindsay Realty Corporation and Pontchatrain Development Corporation for "supervisory fees". These "services" were performed in the six month period subsequent to plaintiff's investment, and consisted of "services" rendered by Lindsay himself, as president of these corporations, in making trips to Baton Rouge in an endeavor to hire salesmen to sell the Pecan Isle campsites; running advertisements in the Baton Rouge papers for salesmen; interviewing and trying out salesmen for three or four days at a time, all without success in obtaining salesmen on a commission basis.
The $450.00 item for travel expenses and the $105.00 item for motels allegedly represented Lindsay's expenses on his Baton Rouge trips.
Bernard W. Tabony Jr. was also paid $2,525.00 for "supervising" during the six months following plaintiff's investment.
*265 Prior to the organization of Pecan Isle Corporation he had been employed by Lindsay Realty Corporation as a salesman on a commission basis. After the corporation was formed he was employed by it to sell the campsites on commission. He did not sever his connection with Lindsay Realty Corporation but continued to have a desk in its office next to Lindsay's. He did some work on the Pecan Isle property prior to the time of plaintiff's investment, such as supervising the cutting of grass and trees, and supervising the placing of gravel on the road through the property, but none of this work is involved in the $2,525.00 item. This amount, according to his testimony, was paid to him for services rendered to the corporation after plaintiff invested the $20,000.00. He testified that these services consisted mainly in accompanying Lindsay to Baton Rouge on some occasions and assisting him in his "supervisory" work there.
Rene A. Harris is a graduate engineer. The $800.00 item was paid to him for surveying the island, subdividing it into lots and staking out the lots, all of which work was completed prior to plaintiff's investment. The $187.00 item apparently covers his out of pocket expense in connection with that work, although it is unexplained in the record.
None of the disbursements complained of by plaintiff was ever specifically authorized by resolution of the Board of Directors. Lindsay, Tabony and Harris, the three directors, all testified that they thought that in adopting the resolution of March 13, 1961 by which Lindsay was authorized to perform certain acts for the corporation they had given him full power to handle the corporation's funds as he saw fit. Tabony and Harris also testified that both of them knew from the beginning that payments were being made to each of the directors and fully acquiesced in and approved these payments and all other disbursements made by Lindsay.
Following the filing of plaintiff's suit against Lindsay a meeting of the Board of Directors was called and a resolution was passed ratifying and approving "all of the disbursements made by the said Joseph D. Lindsay from the funds of the corporation from the time of its organization to date". All three directors were present at this meeting but Lindsay recused himself from voting.
We know of no theory upon which Pecan Isle Corporation can recover funds disbursed in payment of legitimate debts owed by the corporation to third persons for gravel, advertising, attorney's fees and other goods and services actually received by it.
Disbursements made to its director-officers belong to a different category due to their fiduciary relationship to the corporation. It is generally held that directors of a corporation are not entitled to recover any compensation or salary for performing the ordinary duties pertaining to their offices unless compensation for such services is provided for in the charter or authorized by a bylaw or resolution of the Board of Directors before the services are rendered.
The general rule is thus stated in 13 Am. Jur. Sec. 1027 at page 975:
"it is accordingly the well-settled rule that the directors of a corporation cannot recover compensation for their services when rendered in the line of their duty as such, whether eo nomine as directors, officers, members of committees, or otherwise, unless compensation for such services is expressly provided for or agreed upon in the charter, bylaws, or articles of incorporation, or by a resolution of the board of directors or stockholders before the services are rendered. This rule is applicable to a director who renders services as president, vice-president, secretary or treasurer of the corporation."
And in Fletcher's Cyclopedia of Corporations, Vol. 5, Ch. 16, Sec. 2109, p. 475, the rule is expressed as follows:
"As a general rule directors or trustees of a corporation are not entitled to recover any compensation or salary for *266 performing the usual and ordinary duties pertaining to their office, unless compensation for such services is provided for in the charter or authorized by a bylaw or resolution of the board of directors before the services are rendered. In other words they cannot recover upon an implied contract for what the services were reasonably worth, for custom and their fiduciary relationship repel any implication of a contract that official services are to be paid for. Regardless of the value of such services, the law will not imply a promise on the part of the corporation to pay, and it is immaterial that the services were performed with the expectation of compensation, or with the general understanding among the directors themselves that they should receive compensation * * *."
Fletcher also points out in Section 2111 at page 482 that the rule applies to directors who seek to recover for services performed as officers.
In Stafford's Estate v. Progressive Nat. Farm Loan Ass'n, 207 La. 1097, 22 So. 2d 662, the Supreme Court held that resolutions fixing compensation to corporate officers or directors can have no retroactive effect but must apply only to future salaries. And in Crichton v. Webb Press Co., 113 La. 167, 36 So. 926, 67 L.R.A. 76 the Supreme Court said:
"The salaries as fixed are not too large, but the resolutions fixing them can, as a matter of course, have operation only for the future. There cannot be any retroactive increase of salary, or voting of back pay."
The rule above stated has application to compensation paid directors for the performance of the usual and ordinary duties of directors and officers. It is now generally held that if directors or officers render unusual or extraordinary services not within the line of their ordinary duties the circumstances may give rise to an implied promise to pay compensation.
"* * * according to the great weight of authority, if a director or other officer renders services clearly outside of his duty as such, at the request of the corporation or board of directors, with the understanding that they are to be paid for, the law will imply a promise to pay what they are reasonably worth, and in such cases it is not necessary that there be a special agreement to pay, or precedent resolutions, charter provisions and the like, providing for compensation. And using capital assets of a corporation for the payment of wages to directors for services outside their regular duties as directors is not illegal * * *". Fletcher Cyclopedia of Corporations, Vol. 5, Ch. 16, Sec. 2114, p. 494.
The District Judge was of the opinion that the services rendered by the defendants "were not the character of services that the officers and directors would ordinarily be presumed to render without compensation, and it was not to be expected that they would not be reimbursed the expenses incurred".
It strikes us however that the services performed by Lindsay for which his creature corporations were paid $5,400.00 were no more than the usual and ordinary duties pertaining to his office as president. The principal thing that he did was to try to find salesmen who would sell the campsites on commission, and neither this nor any of the other things he testified he did were in our opinion outside of or beyond his ordinary official duties.
The services performed by Tabony were principally in assisting Lindsay in performing these duties. Clearly the situation did not call for any assistance at the expense of the corporation, and Tabony cannot be compensated for performing services which Lindsay should have performed himself.
Since compensation for the services rendered by Lindsay and Tabony was not expressly provided for by proper resolution of the Board of Directors before the services *267 were rendered, Lindsay's action in making the payments cannot afterwards be ratified by any action of the board.
The surveying services rendered by Harris were clearly outside of his duties either as an officer or director, the services were rendered with full knowledge on the part of the members of the board and it was apparently well understood at all times that they were to be paid for. The amount for these services does not seem to be unreasonable.
It would seem that the expenses incurred by Lindsay and Harris could be considered proper debts of the corporation provided they were reasonable and redounded to the benefit of the corporation. (See Fletcher Cyclopedia of Corporations, Vol. 5, Ch. 16, Sec. 2141, p. 582). There is no presumption that the expenditures were made gratuitously, and it was not to be expected that they would not be reimbursed. However in this case the record reveals that there was never any itemization of these expenses and no proof of the fact that the amounts thereof were actually expended for the benefit of the corporation except the uncorroborated statements of the recipients of the payments. It would serve no good purpose to remand this case for an accounting of the items paid for expenses as was done in Crichton v. Webb Press Co. supra for the reason that the record shows that no vouchers or verifications of the expenses were kept.
Under the provisions of LSA-C. C.P. Art. 595, Lester F. Alexander Jr., who brought this stockholder's derivative action is entitled to recover from the corporation (out of the proceeds of the judgment hereinafter rendered in favor of the corporation) the amount of the costs herein incurred by him plus a reasonable attorney's fee. We are of the opinion that an attorney's fee of 20% of the corporation's recovery hereunder would be reasonable.
For the foregoing reasons the judgment appealed from is reversed and it is now ordered, adjudged and decreed that there be judgment herein in favor of Pecan Isle Corporation and against (a) Joseph D. Lindsay in the full sum of $5,955.00; (b) against Bernard W. Tabony Jr., in the full sum of $2,525.00; and (c) against Rene A. Harris in the full sum of $187.00. It is further ordered, adjudged and decreed that there be judgment herein in favor of Lester F. Alexander Jr., and against Pecan Isle Corporation for all costs incurred by him in both courts, plus an amount as attorney's fees equal to 20% of all sums collected by Pecan Isle Corporation as a result of this judgment.
Reversed and rendered.
ON APPLICATIONS FOR REHEARING
PER CURIAM.
Appellant, Lester F. Alexander, Jr., applied for a limited rehearing urging error only in the manner of our assessment of costs.
The "expense of litigation" authorized by LSA-C.C.P. Art. 595 to be allowed the representative party out of the fund made available to the corporation refers to expenses of litigation other than ordinary taxable court costs. Taxable court costs should, except for good reason to the contrary, be assessed against the party cast in the litigation. See Fletcher Cyclopedia of Corporations, Vol. 13, Ch. 58, Sec. 6044-5, p. 670 et seq.
Since we are authorized to correct our decree without granting a rehearing, appellant's application for rehearing is denied and our decree is now amended so as to assess all ordinary taxable court costs in both courts against the defendants Joseph D. Lindsay, Rene A. Harris and Bernard W. Tabony, Jr., and to relieve Pecan Isle Corporation from the payment of such costs, the decree otherwise to remain the same.
The application for rehearing filed by appellees is denied.
Decree amended.
Both applications denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623165/ | 126 S.W.3d 536 (2003)
MOORE LANDREY, L.L.P., Appellant,
v.
HIRSCH & WESTHEIMER, P.C., Stephen P. Glover, and Groves & Glover, L.L.P., Appellees.
No. 01-03-00316-CV.
Court of Appeals of Texas, Houston (1st Dist.).
October 16, 2003.
*537 Clay Dugas, Clay Dugas & Associates, Beaumont, TX, for Appellant.
Jesse R. Pierce, Clements, O'Neill, Pierce & Nickens, Donald Burger, Jessie Alliene Amos, Clements, O'Neill, Pierce, Wilson & Fulkerson, L.L.P., Houston, TX, for Appellee.
Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
OPINION
ELSA ALCALA, Justice.
This is an attempted appeal from an attorney's fees dispute in which appellant, Moore Landrey, L.L.P., seeks to challenge summary judgments rendered in favor of appellees, Hirsch & Westheimer, P.C. (Hirsch & Westheimer), Stephen P. Glover, and Groves & Glover (collectively, Glover) on Moore Landrey's claims for breach of contract, negligent misrepresentation, fraudulent inducement, and claims alleging a joint enterprise.[1] In addition to defending the summary judgment rendered in its favor, Hirsch & Westheimer alternatively challenges Moore Landrey's right to prosecute this appeal, on the grounds that the trial court no longer had plenary power when it signed a rule 306a(4) order to establish the date on which Moore Landrey received notice of the trial court's final judgment.[2] We sustain Hirsch and Westheimer's jurisdictional challenge and dismiss the appeal.
Procedural Background
After entering a series of interlocutory orders, the trial court signed a final judgment *538 on April 9, 2002. On May 28, 2002, the 49th day after that judgment, Moore Landrey filed a notice of appeal.[3] No party filed a motion for new trial or any other rule 329b motion.[4]
On June 12, 2002, the 64th day after the April 9, 2002 judgment, Moore Landrey filed a "Motion under Texas Rule of Procedure Rule 306a5 [sic]."[5] The motion was supported by Moore Landrey's counsel's affidavit, to which he had attached a verified copy of a notice from the Harris County District Clerk, dated May 15, 2002, which reported that the trial court had signed an order granting summary judgment on April 9, 2002. Moore Landrey's motion and its counsel's affidavit asserted that the May 15, 2002 notice occurred more than 20 days after the April 9, 2002 order and was Moore Landrey's and its counsel's first notice that the April 9, 2002 order had been signed. The motion requested that, "Texas Rule of Civil Procedure 306a 4[sic] applies to the appellate deadlines in this case."
But Moore Landrey did not file a notice of hearing on its rule 306a(5) motion until December 9, 2002, almost six months after the motion was filed. The trial court nevertheless heard and granted the motion seven days later, on December 16, 2002. The trial court's order of December 16, 2002 recites that relief was granted after considering the motion and the supporting affidavit and exhibit and decrees that, "the Order entered by the Court on April 9, 2002, was received by [Moore Landrey] on May 15, 2002." Moore Landrey filed an amended notice of appeal on March 25, 2003.
Hirsch & Westheimer's Jurisdictional Challenge
Hirsch & Westheimer contends that Moore Landrey cannot prosecute this appeal because the trial court's plenary power over its April 9, 2002 judgment had expired when it signed the December 16, 2002 order, and that the December 16, 2002 order is, therefore, void. Moore Landrey disputes Hirsch & Westheimer's challenge by arguing that nothing in rule 306a imposes a deadline, either to set a hearing on a rule 306a(5) motion or to obtain a ruling.
Plenary Power
A trial court retains plenary power over a final judgment for at least 30 days after signing that judgment. See Tex.R. Civ. P. 329b(d) ("[R]egardless of whether an appeal has been perfected," trial court retains "plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed."). The date on which the trial court signs the judgment "determine[s] the beginning of the periods ... for the court's plenary power." Tex.R. Civ. P. 306a(1).
Parties may extend this initial 30-day period of plenary power by timely filing, within that 30-day period, a motion that seeks a substantive change in the judgment. Tex.R. Civ. P. 329b(a), (g); see Lane Bank Equip. Co. v. Smith Southern Equip., Inc., 10 S.W.3d 308, 310, 314 (Tex. 2000); In re T.G., 68 S.W.3d 171, 176 (Tex.App.-Houston [1st Dist.2002], pet. *539 ref'd). Appropriate motions include a motion for new trial or a motion to modify, correct, or reform the judgment. See Tex.R. Civ. P. 329b(g); Lane Bank Equip. Co., 10 S.W.3d at 310; In re T.G., 68 S.W.3d at 176.
Pursuant to subsections (g) and (h) of rule 329b, parties may extend the trial court's plenary power over its judgment and also extend the applicable appellate timetables by timely filing a rule 329b motion or a motion that has the same effect as a rule 329b motion. See Tex.R. Civ. P. 329b(g), (h); Lane Bank Equip. Co., 10 S.W.3d at 310; In re T.G., 68 S.W.3d at 176; see also Tex.R.App. P. 26.1 (governing time to perfect appeal in civil cases).
No postjudgment motion seeking a substantive change in the trial court's April 9, 2002 judgment was filed within 30 days of the trial court's signing that judgment. Therefore, under the timetable that controls in the absence of a postjudgment motion seeking a substantive change in the judgment, the trial court lost plenary power over the April 9, 2002 judgment on the 30th day after the trial court signed that judgment, specifically, on May 9, 2002.
Rule 306a(5) Motion for Additional Time to File Documents
Because the date on which the trial court signs its final judgment starts the deadlines imposed by rules 306a(1) and 329b(d) and (g), as well as the deadline to perfect any appeal under rule 26.1 of the Rules of Appellate Procedure, subsection (3) of rule 306a requires that trial-court clerks "immediately" notify the parties or their attorneys of record that a judgment has been signed. See Tex.R. Civ. P. 306a(3); Tex.R. Civ. P. 306a(1), 329b(d), (g); Tex.R.App. P. 26.1.
When more than 20 days have passed between the date that the trial court signs the judgment and the date that a party receives the clerk's notice or acquires actual knowledge that the judgment has been signed, subsection (4) of rule 306a creates an exception from rule 306a(1)'s provision that the date of the judgment starts the postjudgment timetables. John v. Marshall Health Servs., 58 S.W.3d 738, 740 (Tex.2001); Tex.R. Civ. P. 306a(4). Subsection (5) of rule 306a provides a procedure that enables the trial court to change the start date from the actual date of the judgment to the date on which the party received the clerk's notice or acquired actual knowledge that the trial court signed the judgment, whichever occurs first, as long as that date is not more than 90 days after the trial court signed the final judgment. Tex.R. Civ. P. 306a(5); see John, 58 S.W.3d at 741; Levit v. Adams, 850 S.W.2d 469, 470 (Tex.1993). A parallel provision of the Rules of Appellate Procedure affords additional time for filing documents related to the appeal under the same time parameters and in accordance with the procedures stated in rule 306a(5) of the Rules of Civil Procedure. See Tex. R.App. P. 4.2(a)(1), (b), (c) (providing for additional time under the appellate timetable to file appellate documents in accordance with procedures in rule 306a(5)).
Subsections (4) and (5) of rule 306a provide as follows:
4. No notice of judgment. If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall *540 such periods begin more than ninety days after the original judgment or other appealable order was signed.
5. Motion, notice and hearing. In order to establish the application of paragraph (4) of this rule, the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.
Tex.R. Civ. P. 306a(4)-(5). After conducting the hearing contemplated by rule 306a(5), the trial court "must sign a written order that finds the date when the party or the party's attorney first received notice or acquired actual knowledge that the judgment or order was signed." Tex. R.App. P. 4.2(c); see Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex.1994) (conditionally granting mandamus relief based on trial court's failure to rule on motion seeking determining date of notice of judgment; decided under former rule 5(b)(5)). The requirements of rule 306a(5) are jurisdictional. Mem'l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex.1987); Grondona v. Sutton, 991 S.W.2d 90, 92 (Tex.App.-Austin 1998, pet. denied).
Moore Landrey Timely Reinvoked Trial Court's Plenary Power
A. Rule 306a(5)'s Procedural Requirements Met
Moore Landrey's motion requested relief in accordance with rule 306a(4) and provided sworn proof that Moore Landrey's and its counsel's first notice of the April 9, 2002 judgment occurred on May 15, 2002. Rule 306a(5) requires notice, but nothing in the record before us indicates either that any party disputed notice or that any party opposed Moore Landrey's motion. Based on the record before us, we hold that Moore Landrey's motion complied with the formal requirements of rule 306a(5) by presenting a prima-facie case demonstrating lack of notice of the April 9, 2002 judgment until May 15, 2002. Having presented a prima-facie case, Moore Landrey reinvoked the trial court's plenary power for purposes of determining the date of notice of the judgment, provided that the motion was timely filed. See John, 58 S.W.3d at 741; Levit, 850 S.W.2d at 470; Gillis, 741 S.W.2d at 365; Grondona, 991 S.W.2d at 92.
B. Plenary Power Timely Reinvoked
We further hold that Moore Landrey timely filed its rule 306a(5) motion. Although rule 306a(5) does not impose an express time limit for filing, the supreme court has clarified that a rule 306a(5) motion may be filed at any time within the trial court's plenary power "measured from the date determined under rule 306a(4)." See John, 58 S.W.3d at 741 (disapproving of cases holding that rule 306a(5) motion must be filed within 30 days of party's or party's attorney's acquiring notice of signing of judgment).
Based on the prima-facie showing that Moore Landrey did not receive notice of the judgment until May 15, 2002, the trial court's plenary power recommenced on that date. See John, 58 S.W.3d at 741; Grondona, 991 S.W.2d at 92. Once reinvoked, the trial court's plenary power lasted at least 30 days under the usual rules, see Tex.R. Civ. P. 329b(d), unless extended by an appropriate motion that extended the initial 30-day period. See Tex.R. Civ. P. 329b(a), (g); see also John, 58 S.W.3d at 741 (recognizing extension of plenary power accomplished by motion for new trial in holding that rule 306a(5) motion timely filed); Grondona, 991 S.W.2d at 92 (same).
*541 Moore Landrey filed its rule 306a(5) motion on June 12, 2002. As measured from the undisputed, May 15, 2002 date of first notice, June 12, 2002 was the 28th day of the trial court's reinvoked plenary power. Moore Landrey's motion was timely filed because it was filed within the period of the trial court's reinvoked plenary power. See John, 58 S.W.3d at 741. For the same reason, Moore Landrey timely filed its notice of appeal on May 28, 2002, the 13th day of the period of the trial court's reinvoked plenary power.
Trial Court's Plenary Power Expired on June 14, 2002
In John, the supreme court addressed only the filing deadline that controls rule 306a(4) motions. Id. at 741. Because an extended plenary-power timetable applied in that case, by virtue of an appropriate postjudgment motion, specifically, a motion for new trial, there was no need to address the deadlines that determine the trial court's authority to rule on the motion, which is the issue raised here. See id.
As addressed above, the prima-facie showing established by Moore Landrey's rule 306a(5) motion timely reinvoked the trial court's plenary power to determine that Moore Landrey or its counsel first acquired notice of the April 9, 2002 judgment on May 15, 2002. The trial court's reinvoked plenary power thus began on that date. See John, 58 S.W.3d at 741. Moore Landrey's rule 306a(4) motion, however, was the only matter pending resolution before the trial court. No party ever filed a motion seeking a substantive change in the trial court's final summary judgment that might have extended the trial court's plenary power over that judgment. A proper rule 306a(5) motion, if timely filed, merely restarts the postjudgment timetable. See John, 58 S.W.3d at 741; Gillis, 741 S.W.2d at 365; Grondona, 991 S.W.2d at 92. A rule 306a(4) motion does not extend the trial court's plenary power beyond the time periods defined by rules 306a(1) and 329b(d): as addressed above, the trial court's plenary power can be extended beyond that initial 30-day period solely by an appropriate motion that seeks a substantive change in the judgment. See Tex.R. Civ. P. 329b(a), (g); Lane Bank Equip. Co., 10 S.W.3d at 314; In re T.G., 68 S.W.3d at 176; see also John, 58 S.W.3d at 741 (recognizing extension of plenary power accomplished by motion for new trial); Grondona, 991 S.W.2d at 92 (same).
Despite having been reinvoked to determine Moore Landrey's rule 306a(4) motion, therefore, and despite the lack of a stated deadline for determination of a rule 306a(4) motion in the rule itself, the trial court's plenary power did not extend beyond the 30-day period of plenary power that controls when no party has filed an appropriate motion to extend the postjudgment period of plenary power.
Accordingly, although Moore Landrey timely reinvoked the trial court's plenary power by an undisputed, prima-facie showing of lack of notice of the April 9, 2002 judgment until May 15, 2002, the usual, 30-day postjudgment period of plenary power applied to this case. Compare John, 58 S.W.3d at 741 (noting extended period of plenary power). As measured from May 15, 2002, the trial court's plenary power over the April 9, 2002 judgment expired on the 30th day after May 15, 2002, specifically, on June 14, 2002. In order to benefit from rule 306a(4) and (5), therefore, Moore Landrey not only had to file its rule 306a(5) motion by June 14, 2002, which it did, but also had to obtain a ruling on its motion by June 14, 2002, *542 which it did not.[6]See Cantu, 878 S.W.2d at 132 (noting, in context of conditional grant of mandamus relief, that failure to obtain rule 306a(4) finding would preclude appeal). As addressed above, Moore Landrey did not file a notice of hearing on its rule 306a(5) motion until December 9, 2002 and did not obtain a ruling on the motion until December 16, 2002, over six months after the trial court's plenary power expired.
Moore Landrey disagrees that the trial court's plenary power expired on June 14, 2002 and contends that the trial court properly ruled on the motion over six months later. Moore Landrey first contends that a rule 306a(5) motion is similar to a motion to correct a judgment under rule 316 of the Rules of Civil Procedure, which a trial court may properly grant after its plenary power has expired. See Tex.R. Civ. P. 316 (authorizing trial court to correct clerical mistakes in judgment record); see also Tex.R. Civ. P. 306a(6) (stating that date of corrected judgment controls postjudgment deadlines when trial court signs corrected, "nunc pro tunc" judgment after plenary power has expired).
We reject Moore Landrey's reliance on rule 316 and conclude that the rule does not apply. A trial court does not correct a judgment in any respect by granting relief under rule 306a(4) and (5). Moreover, the trial court here did not sign a corrected judgment. As addressed above, the relief contemplated by rule 306a(4) and (5) is to restart the postjudgment timetable at the date of notice. In addition, rules 316 and 306a(6) do not apply because Moore Landrey's complaints on appeal challenge the original judgment, signed on April 9, 2002 and do not address a corrected judgment. See Tex.R. Civ. P. 306a(6) (stating that postjudgment periods under rule 306a(1) "run from the date of the corrected judgment with respect to any complaint that would not be applicable to the original document.") (emphasis added.); see also Tex.R.App. P. 4.3(b) (same).
In defending its premise that the trial court essentially retained unlimited plenary power to adjudicate rule 306a(4) issues, Moore Landrey relies on a recent memorandum opinion issued by the San Antonio Court of Appeals. See Vaughn v. Sawyer, No. 04-03-00297-CV, 2003 WL 21338615 (Tex.App.-San Antonio, June 11, 2003, no pet.) (not designated for publication). We first note that Vaughn differs from this case because the trial court had never ruled on the appealing party's rule 306a(4) motion. Slip op. at 2. Although the court of appeals noted, in dicta, that an order of abatement could issue to require the trial court to hold a hearing to rule on a rule 306a(4) motion, that process would have served no purpose because, even after using the appellant's date of receipt of notice, the notice of appeal was not timely filed. See id. Our sister court thus recognizes, as we recognize here, that rule 306a(4) motions remain subject to the usual timetables. See id. Although we further acknowledge that mandamus has conditionally issued to require a trial court to conduct a rule 306a(4) hearing and enter a finding of the date of actual notice, see Cantu, 878 S.W.2d at 132, neither is mandated here. Both occurred here, albeit tardily.
We likewise reject Moore Landrey's contention that its timely notice of appeal *543 empowered the trial court to rule on December 19, 2002. Nothing in the Rules of Civil or Appellate Procedure authorize this result, which would, we further note, negate the well-settled principles that we have outlined above. Indeed, Moore Landrey's contention conflicts with both procedural rules, which limit the starting date for the trial court's reinvoked plenary power to no more than 90 days after the challenged judgment. See Tex.R. Civ. P. 306a(4); Tex.R.App. P. 4.5(b); see also Levit, 850 S.W.2d at 470 (holding that trial court had no authority to grant rule 306a(4) motion alleging notice of judgment on 91st day following judgment).
December 16, 2002 Order Void
Judicial action taken after the trial court's plenary power has expired is void and a nullity. In re Dickason, 987 S.W.2d 570, 571 (Tex.1998); In re T.G., 68 S.W.3d at 177. Because the trial court's plenary power, as reinvoked by Moore Landrey's rule 306a(4) motion, had expired when the trial court signed the December 16, 2002 order, that order is void and had no effect. See In re Dickason, 987 S.W.2d 570, 571 (Tex.1998); In re T.G., 68 S.W.3d at 177. Parties affected by a void order, here Hirsch & Westheimer and Glover, need not appeal to set the void order aside. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995); In re T.G., 68 S.W.3d at 178. But because Moore Landrey has attempted to appeal, we are authorized to declare void the order signed by the trial court on December 16, 2002. See State ex rel. Latty, 907 S.W.2d at 486; In re T.G., 68 S.W.3d at 178. Accordingly, we declare the trial court's post-plenary-power order of December 16, 2002 void and dismiss Moore Landrey's appeal. State ex rel. Latty, 907 S.W.2d at 486; In re T.G., 68 S.W.3d at 178.
Conclusion
We declare the trial court's December 16, 2002 order void and dismiss the appeal for want of jurisdiction.
NOTES
[1] Hirsch & Westheimer is the only appellee who has filed an appellee's brief.
[2] See Tex.R. Civ. P. 306a(4)-(5) (providing remedy by which party who had no notice of signing of judgment can establish date of that party's notice of judgment as date from which trial court's exercise of plenary power over judgment begins to run).
[3] Moore Landrey's notice of appeal referred to the date of the trial court's final judgment as April 25, 2001 and described that judgment as becoming final on May 15, 2002.
[4] See Tex.R. Civ. P. 329b(a)-(h) (stating deadlines for postjudgment motions and effect of certain motions on trial court's plenary power).
[5] We will refer to this motion as the rule 306a(5) motion.
[6] The record does not support Moore Landrey's contention, asserted for the first time during oral submission of this case, that Moore Landrey requested a hearing on its rule 306a(5) motion within the period of the trial court's extended plenary power. In the record before us, the notice of hearing filed on December 9, 2002 is the only notice of hearing on Moore Landrey's motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/98401/ | 236 U.S. 687 (1915)
WRIGHT, COMPTROLLER GENERAL OF GEORGIA,
v.
LOUISVILLE AND NASHVILLE RAILROAD COMPANY.
No. 162.
Supreme Court of United States.
Argued January 29, 1915.
Decided March 22, 1915.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
*688 Mr. Samuel H. Sibley, with whom Mr. John C. Hart was on the brief, for petitioner. (For abstract of argument see ante, p. 675.)
Mr. Alex C. King, with whom Mr. Jos. B. Currey, Mr. Bryan Currey, Mr. R.C. Alston and Mr. Philip H. Alston were on the brief, for respondents and cross petitioners.
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a bill brought by the railroad companies, respondents, to prevent the collection of a tax upon the Georgia Railroad, operated by them under a lease and assessed to them as their property. The District Court made a decree for the plaintiff with certain exceptions, which was affirmed on appeal and cross appeal by the Circuit Court of Appeals for the reasons given by the District Court. 199 Fed. Rep. 454. 201 Fed. Rep. 1023.
The main question is similar to that disposed of in Wright v. Central of Georgia Railway Company, just decided, ante, p. 674.
By its charter granted on December 21, 1833 (Laws of 1833, p. 256) the stock of the Company and its branches is subject only to a `tax not exceeding one-half one per cent. per annum on the net proceeds of their investments.' § 15. This language is interpreted and held to constitute *689 a binding contract in Wright v. Georgia Railroad and Banking Co., 216 U.S. 420. So it is admitted that the present tax could not be levied on the lessor. By § 12 of the same charter the Company is authorized to "rent or farm out all or any part of their exclusive right of transportation or conveyance of persons, on the rail-road or rail-roads, with the privilege to any individual or individuals, or other company, and for such term as may be agreed upon." So the State has convenanted that the Company's property shall be exempt from tax except upon its income which it is authorized to make in any of three ways. And as bearing on the different uses of the Company's franchise that were deemed possible in that day, as we remarked in the other case, we may add that by § 13, if any persons intrude upon the railroad by any manner of use thereof they shall forfeit to the Company all the vehicles and animals that may be so intrusively introduced and used; that by § 14 the Company, if it sees fit to farm out any part of its exclusive right, may prescribe the value and size of vehicles to be used or pass on its road, and the locomotive power; and that by § 22, the Company, if it prefers, instead of railroads may construct common roads and use steam carriages thereon.
The plaintiffs are operating the roads in question under a lease made to one Wadley to whose rights they have succeeded. Georgia Railroad & Banking Co. v. Maddox, 116 Georgia, 64. This instrument purported, in the language quoted above from § 12 of the charter, to `rent and farm out' the privileges and roads of the lessor for a term of ninety-nine years from April 1, 1881. For the reasons given in the other case we cannot believe that if the company saw fit to gain `the net proceeds of their investments,' (to one-half of one per cent. of which their tax was limited), by letting the whole road instead of allowing others to introduce carriages, the statute silently opened the right to resume as against the lessee all that *690 had been renounced as against the lessor. If the fee of the roads is taxable to no one while the liability of the lessor to the above mentioned one-half of one per cent. remains, an attempt to collect a tax upon the fee from the plaintiffs is an attempt on the part of the State to tax the leased property which was completely beyond the reach of its taxing power except in so far as permitted by the contract, the obligations of which could not be impaired without a violation of the contract clause of the Constitution of the United States. Thus the particular features of the case in hand take it without the rule applied in Rochester Railway v. Rochester, 205 U.S. 236, and other kindred cases, from which we have no purpose to depart.
Some subordinate questions remain. Betterments and improvements of the demised road such as the lessor naturally would have made to meet the necessities of an enlarging business stand on the same footing as the original road and are exempt. Wright v. Georgia R.R. & Banking Co., 216 U.S. 420, 427-432. Gardner v. Georgia R.R. & Banking Co., 117 Georgia, 522, 532. The rolling stock substituted for or added to that turned over to the lessees became the property of the lessor as soon as acquired and also is exempt like that of which it took the place. The lessee covenants to return the property in as good condition as it was then in, and the lease provides that `the property substituted for and added to that which is hereby rented and farmed out, shall be the property of' the lessor. `Shall be' obviously means shall be when so substituted. It is not confined to such substituted property as may be on hand at the end of the lease. The lessor is to be kept continuously the owner of an equipped road. The Railroads not being domiciled in Georgia are not taxable there for stock and bonds of other companies merely appearing to be owned by them. Some necessary and proper improvements were made by the lessor before the lease and paid for by the proceeds of *691 bonds issued by it. We do not perceive why they should be put on a different footing from the others. And we are not prepared to say that terminals, &c., added to the demised property belonging to the lessor, although brought with $225,000 of money belonging to the lessees, were not reasonable betterments and exempt.
The Atlanta terminals require separate treatment. Besides so much of them as was embraced in the lease, there seems to be other land belonging to the West Point Company, and other land again of the Louisville and Nashville Railroad. By an agreement between the plaintiffs and the West Point Company this property is converted into and used as a joint terminal. The assessment complained of deals with this as a separate entity and item, and in the decree is excepted from the injunction. It appears to us that so much of the property as is part of the exempted line still is exempt. It is used for the purposes of the line, although the relations have become more complex. The rest may be subject to taxation, but not in this assessment. The decree will be modified in this respect, but otherwise is affirmed.
Decree modified and affirmed.
MR. JUSTICE LAMAR took no part in the decision.
Dissenting: MR. JUSTICE HUGHES, MR. JUSTICE PITNEY, MR. JUSTICE McREYNOLDS. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1300299/ | 691 S.E.2d 133 (2010)
STATE
v.
HAWKINS.
No. COA09-821.
Court of Appeals of North Carolina.
Filed February 16, 2010.
Certification Date March 8, 2010.
Case Reported Without Published Opinion No error in part; Remanded in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1299400/ | 333 P.2d 607 (1958)
65 N.M. 119
William P. KEARNS, Jr., Chief of the Division of Liquor Control, Appellant,
v.
Juan P. ARAGON, d/b/a Juan's Beer Garden, Appellee.
No. 6450.
Supreme Court of New Mexico.
December 15, 1958.
Rehearing Denied January 16, 1959.
Charles B. Barker, Santa Fe, for appellant.
Chavez & Cowper, Belen, for appellee.
COMPTON, Justice.
This appeal is taken by the Chief of Liquor Control, hereinafter referred to as the Chief, from the order of the District Court of Santa Fe County setting aside his order revoking appellee's liquor license.
*608 Appellee, the holder of dispenser's license No. 199 authorizing him to operate a bar in Valencia County, New Mexico, was charged with making a sale of intoxicating liquor on Sunday in violation of Section 46-10-14, NMSA, 1953 Compilation.
At a hearing upon the complaint before the Chief, Eddleman, a state police officer, testified that appellee sold him a bottle of whiskey on Sunday, April 14, 1957. This testimony was partially corroborated by Daves, another state police officer. Appellee flatly denied making any such sale. In addition, appellee moved for dismissal on the ground that he had been entrapped into committing the offense. This motion was denied by the Chief.
The Chief found that appellee had made the illegal sale as charged, and pursuant to the authority vested in him by Section 46-6-2(g), NMSA, 1953 Compilation, revoked his license.
Appellee appealed the order of the Chief to the district court for Santa Fe County and the case was tried solely on the record made in the proceeding before the Chief. The district court reversed the decision of the Chief finding that the action of the state police in bringing about the alleged sale constituted entrapment.
The court also concluded that the action of the Chief was arbitrary, capricious and unreasonable.
Upon review, this court must determine whether the order or findings of the Chief were sustained by substantial, competent, relevant and credible evidence. Section 46-6-6, NMSA, 1953 Compilation. See Gonzales v. New Mexico State Board of Embalmers and Funeral Directors, 63 N.M. 13, 312 P.2d 541.
We believe the order of the Chief was so supported. A portion of Officer Eddleman's testimony was as follows:
"We drove up to the establishment of Juan's Beer Garden between the house and the bar. We got out of our car. At this time we noticed Juan and his wife and a little boy coming out of the bar. We approached them and went inside the bar and stopped right at the edge of the bar and asked if there would be any chance of buying any liquor. He then stated that it was Sunday and there would be no chance. We started out the door. He stated if one of you come later there might be a chance, so we got in our car and left. We fooled around town for a little while and then we went back at approximately 7 P.M. where at this time I left Officer Daves off about a half block from Juan's Beer Garden on the road. I approached the house. The house was dark and also the bar. I parked the car in the same place between the house and the bar and got out and knocked on the rear door of the house. Juan can to the door and I asked if there would be any chance of buying any liquor then. He stepped out of the door and on the steps and observed my car and he then stated, `You can buy some any time if you are by yourself.' So we went over to the bar. He unlocked the door and we went inside. He asked what kind I liked and how much and I said I would like to have a half-pint of Schenley's. He looked over the stock and told me he didn't have any Schenley's in stock and if H and H would be sufficient. I said it would. He gave me the bottle; I gave him a five dollar bill. He gave me back three dollars and a quarter. I then walked to the door, opened the door and stood right in front of the door holding the bottle in front of me where Officer Daves could see it, making conversation with Juan, Mr. Aragon. At this time he said he had to be very careful because there had been other raids from State Police and at this time I informed, I showed him my credentials and informed him I was a New Mexico State Police and that `You are under arrest' and he said `That's all right,' he said, `It's your word against mine.' I then said that Officer Daves was present and he then stated that he had *609 to go into the house. I told him to get in the car and he proceeded on in the house. I followed him in the first door and then turned around and came back out. At this time Officer Daves was there and I told him to go to the front door. I stood at the rear door. I moved my car from behind the house around to the north side of the house. I stood by the rear door. I heard, I don't know exactly what it was, it seemed like some drawers moving in the bedroom. I heard a screen open and about a minute later Officer Daves came around and told me the man had a gun sticking out the window. We then proceeded to get in my car and go over to the Town of Belen and phone Officer Stringfellow of the State Police. We then went to a Justice of the Peace and filed a complaint for illegal sale of liquor and resisting arrest, pending by Sergeant Vigil and Captain Bradford. We then called Sergeant Vigil at Albuquerque."
Appellee makes much of the fact that the court reporter and perhaps others, first understood Witness Eddleman to say that the whiskey he purchased was H & H, while the bottle placed in evidence was Ancient Age. The witness explained on cross-examination that he had said Ancient Age. We attach no particular significance to this point in view of the fact that when H and H and Ancient Age are spoken it is somewhat difficult for the ear to distinguish between the two terms.
Officer Daves testified in part as follows:
"* * * He (appellee) stated for us to go on but if one of us come back, that he would sell us some whiskey, some liquor. We left then and drove around town and observed other bars until around 7 P.M., and I guess. We then went back to Juan's Beer Garden and I got out around a half a block to a block from the bar and Officer Eddleman drove his car on up into the yard there and after I got out, I started walking toward the bar. It wasn't dark yet, but it was kind of hazy, and when I got I saw I did see Officer Eddleman and Mr. Aragon go into the bar and I kept on walking toward the bar and when they come out shortly, they stood there at the door for a few seconds, I don't know how long, and all of this time I was walking toward them and while they were standing there I saw a bottle in Officer Eddleman's hand that he was holding up in front of him. * * *"
The Chief who heard the testimony and had an opportunity to observe the demeanor of the witnesses, stated as follows in his order.
"that the testimony of the State's witness instant violation was very convincing. * * *"
After reviewing the testimony taken in the proceedings before the Chief we are of the opinion that the order was supported by substantial, competent, relevant and credible evidence. Even assuming that the action of the State police officers constituted entrapment, this fact alone does not render their testimony unsubstantial, incompetent, irrevelant or incredible. As we held in State v. Romero, 49 N.M. 129, 133, 158 P.2d 851, the mere circumstance, standing alone, that the State's witnesses were engaged in a species of entrapment does not render their testimony unworthy of belief. See In re Wellcome, 23 Mont. 450, 59 P. 445.
The Chief contends that since the appellee took the stand and denied under oath that he had made the alleged Sunday sale, he is precluded from raising the defense of entrapment. Appellee of course urges to the contrary. We have found well reasoned cases supporting both views, but as will be seen it is unnecessary to decide this point.
A proceeding before the Chief to revoke a liquor license is not a criminal proceeding; rather it is an administrative proceeding in the nature of a civil action. Bradley v. Texas Liquor Control Board, Tex.Civ.App., 108 S.W.2d 300; Commonwealth v. Lyons, 142 Pa.Super. 54, 15 A.2d *610 851; Kravis v. Hock, 137 N.J.L. 252, 59 A.2d 657. This is true even though the charge and ground for revocation is the violation of a penal statute. Keller v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 272, 130 S.W.2d 821; Boyd v. Allen, 246 N.C. 150, 97 S.E.2d 864.
Section 46-6-4(m), NMSA, 1953 Compilation, makes this quite clear in providing that no admission of guilt, admission against interest or transcript of testimony taken in hearings before the Chief is admissible in a criminal prosecution against a licensee.
Nor is the object of an administrative proceeding to revoke a liquor license intended as a punishment of the licensee. The purpose is to insure so far as possible the decent and orderly conduct of a business affecting the public health, morals, safety and welfare. Flowers v. Benton County Beer Board, Tenn. 302 S.W.2d 335; Cornell v. Reilly, 127 Cal. App.2d 178, 273 P.2d 572. State control of the liquor business under the police power is so great as to range from complete prohibition to lesser degrees of regulation and constant surveillance. Boyd v. Allen, 246 N.C. 150, 97 S.E.2d 864. See Floeck v. Bureau of Revenue, 44 N.M. 194, 100 P.2d 225.
Hence, revocation proceedings are not governed by the rules of law applicable to criminal prosecutions. In such proceedings the offense need not be established beyond a reasonable doubt. Pennsylvania Liquor Control Board v. Summit Hill Rod and Gun Club, 184 Pa.Super. 584, 135 A.2d 781; Kravis v. Hock, 137 N.J.L. 252, 59 A.2d 657. The constitutional defenses of unreasonable search and seizure and self-incrimination are not available in similar proceedings. Camden County Beverage Co. v. Blair, D.C., 46 F.2d 648. In liquor license revocation proceedings proof of general reputation is not treated as substantive evidence to air in determining guilt or innocence. Commonwealth v. Lyons, supra. Likewise, and decisive for purposes of this case, entrapment is not a defense in an administrative proceeding to revoke a liquor license. In a civil proceeding for the forfeiture of contraband liquor, the Missouri court held that the defense of entrapment was not available since the "defendant is not being tried here for a criminal offense." State v. Ward, 361 Mo. 1236, 239 S.W.2d 313, 320.
Our decision goes no further than to hold that the defense of entrapment is not available in a proceeding to revoke a liquor license. Nonetheless, we wish to point out that many courts have gone considerably further in restricting the defense of entrapment. In some jurisdictions, notably Tennessee and New York, the defense of entrapment is not recognized in any criminal action. Goins v. State, 192 Tenn. 32, 237 S.W.2d 8; People On Complaint of Klein v. Schacher, Mag.Ct., 47 N.Y.S.2d 371.
In a number of jurisdictions the defense of entrapment has no application in criminal prosecutions for violating liquor laws. The rationale of these decisions is that to constitute entrapment the criminal intent must originate in the mind of the entrapper, and since no intent is necessary to violate liquor laws, an essential element of entrapment is absent. French v. State, 149 Miss. 684, 115 So. 705; State v. Driscoll, 119 Kan. 473, 239 P. 1105; State v. Merklinger, 180 Kan. 283, 303 P.2d 152; State v. Varnon, Mo., 174 S.W.2d 146; State v. Sheeler, 320 Mo. 173, 7 S.W.2d 340.
In the case of State v. Broaddus, 315 Mo. 1279, 289 S.W. 792, 795, the court stated this principle as follows:
"Whatever may be the general rule in regard to the effect upon the right to convict a defendant who has been entrapped into the commission of a crime (18 A.L.R. 146, 149), it is usually held to have no application to cases involving the sale of intoxicating liquors or other violations of the Prohibition Laws. In this class of cases criminal intent is not, as a rule, a necessary element and need not be shown."
In a similar vein is the following statement by the Virginia court in Bauer v. *611 Commonwealth, 135 Va. 463, 115 S.E. 514, 515:
"But whatever may be said against enticing one to commit crime, the decided weight of authority is that one who makes an unlawful sale of liquor, or unlawfully transports it, is not excused from criminality by the fact that he was induced to do the criminal act for the sole purpose of prosecuting him for it. Initiative on the part of the perpetrator of an offense of this nature is not essential to charge him with criminal responsibility."
In view of what has been said above, the judgment of the district court must be reversed and the cause remanded with a direction to set aside its judgment and enter another affirming the order of the Chief.
It is so ordered.
McGHEE and SHILLINGLAW, JJ., concur.
LUJAN, C.J., and SADLER, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920289/ | 107 B.R. 431 (1989)
In re Richard J. ZALOWSKI, f/d/b/a Speedy Car Wash, Debtor.
David DENEHY, Plaintiff,
v.
Richard J. ZALOWSKI, f/d/b/a Speedy Car Wash, Michael B. Katz, Trustee, Defendant.
Bankruptcy No. 89-40027, Adv. No. 89-4026.
United States Bankruptcy Court, D. Massachusetts.
November 17, 1989.
*432 Gary M. Weiner, Kamberg, Berman & Gold, Springfield, Mass., for David Denehy/plaintiff.
Jonathan Goldsmith, Hendel, Collins & Newton, Springfield, Mass., for debtor/defendant.
OPINION
JAMES F. QUEENAN, Jr., Bankruptcy Judge.
Cross motions for summary judgment present the question of whether an employee with an injury compensable under workers' compensation law has a claim against his employer which is nondischargeable in the employer's bankruptcy due to the employer's failure to maintain workers' compensation insurance. More specifically, the case turns upon whether the damage claim is "for willful and malicious injury" to "property" within the meaning of 11 U.S.C. § 523(a)(6), the "property" consisting of the employee's insurance rights.
Facts stipulated by the parties disclose the following: The plaintiff, David Denehy (the "Employee"), was injured when he fell from a hose rail while working for Richard J. Zalowski (the "Employer") at the Employer's car wash. Although the injury was neither negligently nor intentionally caused by the Employer, it was covered under workers' compensation law. Unfortunately, the Employer's workers' compensation insurance policy had previously lapsed. The Employee recovered a default judgment of $50,000 plus interest and costs in state court, and the Employer's Chapter 7 bankruptcy petition soon followed.
Not content with these stipulated facts, the Employee asserts by affidavit that the Employer "had notice of termination of previously existing coverage . . . deliberately chose not to renew said coverage . . . [and] intentionally failed to provide Workers' Compensation Insurance coverage for the [Employee]." In a countering affidavit, the Employer states: "As a result of financial restraints including certain court ordered support payments, I had insufficient funds to pay all obligations. Accordingly, some bills simply did not get paid including my workers' compensation premium despite my best efforts to pay all obligations." There is no dispute, therefore, that the Employer was aware of the insurance bill and the coverage lapse which would flow from not paying it, but was financially unable to pay both this bill and *433 other obligations, particularly court-ordered support obligations.
The Employee's argument runs along these lines: The Employer's choice to pay other obligations and not workers' compensation insurance premiums was a willful act; it caused immediate and obvious injury to the Employee's statutory right of insurance coverage, a financial property right; that inchoate property loss foreseeably ripened into an actual loss upon the Employee's injury; the premium non-payment therefore constitutes willful and malicious injury to the Employee's property. A fair array of decisions supports this argument. See Strauss v. Zielinski, 99 B.R. 396 (N.D. Ill.1989) (affirming Bankruptcy Court decision at 86 B.R. 559); Vig v. Erickson (In re Erickson), 89 B.R. 850 (Bankr.D. Idaho 1988); Juliano v. Holmes (In re Holmes), 53 B.R. 268 (Bankr.W.D.Pa.1985). Other courts discharge the debt, primarily because the employer's non-payment of the insurance premium did not necessarily cause financial injury to the employee in that he may never have been injured. These courts conclude that there has been negligence at most. See Samuel v. Baitcher, 36 B.R. 588, 594 (Bankr.N.D.Ga. 1983); Hamilton v. Brower, 24 B.R. 246 (Bankr.D.N.M.1982); Aldridge v. Scott (In re Scott), 13 B.R. 25 (Bankr.C.D.Ill.1981). See also the as-yet unpublished decisions of Judge Kenner of this district in Workers' Compensation Trust Fund v. Collins (In re Collins), 109 B.R. 541 (1989) (failure to provide workers' compensation insurance not "willful" because it did not inevitably cause harm) and Madden v. Fate (In re Fate), 100 B.R. 141 (Bankr.D.Mass.1989) (same with respect to failure to provide compulsory motor vehicle personal liability insurance).
It is common ground that neither negligence nor reckless disregard for another's person or property is "willful" conduct under § 523(a)(6). The statute's legislative history declares:
Under this paragraph, `willful' means deliberate or intentional. To the extent that Tinker v. Colwell, 139 [sic] [193] U.S. 473 [24 S.Ct. 505, 48 L.Ed. 754] (1902) [sic] [1904], held that a looser standard is intended, and to the extent that other cases have relied on Tinker to apply a `reckless disregard' standard, they are overruled.
H.R.Rep. No. 595, 95th Cong., 1st Sess. 365 reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6320-21; S.Rep. No. 989, 95th Cong.2d Sess. 79, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5865.
It seems equally clear that the word "malicious" in § 523(a)(6) does not impose a requirement that a debtor have acted with personal malevolence toward the party seeking nondischargeability. This was settled long ago in Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), where the court held that a judgment for criminal conversation with the plaintiff's wife was nondischargeable under § 17(2) of the Bankruptcy Act of 1898 which denied discharge to judgments "for willful and malicious injuries to the person or property of another." As seen from the legislative history to § 523(a)(6), Tinker has been interpreted, wrongly I think, to deny discharge to a debt resulting from injury caused by mere reckless conduct. But its rejection of the need for personal malevolence continues to be law under the Bankruptcy Code. See, e.g., St. Paul Fire & Marine Ins. Co. v. Vaughn, 779 F.2d 1003 (4th Cir.1985) (debt from conversion of funds held nondischargeable); Barclays American/Business Credit, Inc. v. Long (In re Long), 774 F.2d 875 (8th Cir.1985) (conversion of lender's collateral held not dischargeable).
I do not understand the parties to quarrel with these standards. They differ in applying them to what has transpired here. The Employee says that a conscious decision not to pay the insurance premium is sufficient. To the Employer, injury or damage must have been intended, or at least inevitable.
I find guidance in principles of tort law, as have other courts. See, e.g., In re Long, 774 F.2d at 881. Intent in tort law means that the actor either desires to cause the consequences of his act or believes that the consequences are substantially certain *434 to result from it. Restatement (Second) of Torts § 8A (1965). A gun fired with no one in sight involves an intentional pulling of the trigger but not intentional injury to the party struck. Id., comment (a). Reckless driving, where there is no substantial certainty of injury, is not intentional conduct. Id. illustration 2. As the probability of harm decreases, the conduct becomes merely negligent. Id., comment b. Negligence can involve intentional conduct, not just inattention such as going through an unseen red light. Negligence has been defined as conduct which "falls below the standard established by law for the protection of others against unreasonable risk of harm." Restatement (Second) of Torts § 282 (1965).
The distinctions, then, among intentional, reckless, negligent and non-tortious conduct lie in the degree of risk of harm, which runs from substantial certainty to a reasonable risk. Decisions under § 523(a)(6) have employed this type of analysis. Farmers Insurance Company v. Compos (In re Compos), 768 F.2d 1155 (10th Cir.1985) involved injury caused by drunken driving. The plaintiff argued that the drinking was intentional. Observing that "willful" modifies "injury" in the statute, the court rejected the notion that only the act and not the injury need be intended. In Kelt v. Quezada (In re Quezada), 718 F.2d 121 (5th Cir.1983), injury resulted when the debtor opened a gate to allow entry of a vehicle, permitting the escape of her vicious pit bulldog into a crowded residential area. The court did not regard the intentional act of opening the gate as enough to make the injury "willful and malicious." Id. at 123. Compare First National Bank of Albuquerque v. Franklin (In re Franklin), 726 F.2d 606 (10th Cir.1984) (appendectomy operation involving disregard of acceptable medical practice deemed "willful and malicious"); Perkins v. Scharffe, 817 F.2d 392 (6th Cir. 1987) (podiatrist's "unnecessary" injection of foot with unsterile needle, and failure to perform timely tests, deemed "willful and malicious."). I therefore conclude that Collier correctly sets forth the controlling principles in stating:
An injury to an entity or property may be a malicious injury within this provision if it was wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill-will. The word "willful" means "deliberate or intentional," a deliberate and intentional act which necessarily leads to injury . . . [Emphasis added].
3 King, Collier on Bankruptcy, para. 523.16 (15th ed. 1989).
In the present case, the Employer's failure to pay insurance premiums did not necessarily lead to either personal or financial injury to the Employee. It was perfectly possible, perhaps likely, that neither the Employee nor any co-worker would suffer a compensable injury during the period of insurance lapse. True, the Employee's statutory right to insurance coverage was necessarily denied. But without the occurrence of a compensable accident the present claim could not arise.
There is another reason that this claim falls outside § 523(a)(6). The Employee's statutory right to insurance coverage is not "property" within the meaning of the statute. The word is presumably used in the same sense in which it is used to describe interests which become part of the bankruptcy estate under § 541. No one would suggest that various statutory or constitutional rights fall within the purview of § 541 prior to their violation and ripening into a cause of action.
The decisions which the Employee relies upon confuse intentional and negligent conduct in concluding that foreseeability of injury is all that is required. There must be substantial certainty. That was not present here. Perhaps Congress did not wish to impose the sanction of nondischargeability for much the same reason that only civil sanctions attach to such conduct.
Judgment will be entered for the Employer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920223/ | 91 B.R. 51 (1988)
In re Robert L. DANIELS, Jr., Debtor.
Bankruptcy No. 87 B 3900.
United States Bankruptcy Court, N.D. Illinois, E.D.
September 9, 1988.
Robert J. Adams, James J. McGraw, Chicago, Ill., for debtor.
Marc C. Scheinbaum, Fisher & Fisher, P.C., Chicago, Ill., for Fleet Mortg. Corp.
Jack McCullough, Chicago, Ill., Trustee.
AMENDED MEMORANDUM OPINION AND ORDER DENYING DEBTOR'S MOTION TO RECEIVE POST JUDGMENT RATE OF INTEREST ON JUDGMENT OF FORECLOSURE
(Corrected and Reissued September 9, 1988)
JACK B. SCHMETTERER, Bankruptcy Judge.
This proceeding is under Chapter 13 of the Bankruptcy Code. It was filed after a *52 Judgment of Foreclosure and Sale was entered in favor of Fleet Mortgage Corporation ("Fleet") against Robert L. Daniels, Jr. ("Debtor"). Debtor moved for entry of a "Judgment Creditor Order." That proposed Order as drafted would provide for Debtor to pay Fleet over five years the foreclosure judgment with interest to accrue at the Illinois Statutory post-judgment rate of 9% per annum as part of his Plan, plus certain escrow payments. Fleet objected to the proposed Order because it objects to that interest rate. It contends that the mortgage note and contract rate of interest (15½% per annum) should govern and the requested judgment Order should not be entered except at the higher interest rate. Fleet is apparently agreeable to the Plan and Order should the higher rate be offered.
The requested Order essentially seeks approval of part of Debtor's Chapter 13 Plan, and creditor's objection stands as objection to that part of the Plan.
For reasons set forth by Memorandum Opinion on January 21, 1988, Debtor's Motion was denied because the rate offered was found to be improper, and creditor was found to be required to accept a judgment order only if entered at the contract interest rate. Debtor moved for reconsideration. Upon reconsideration and review of applicable authorities and the record of this case, the Court finds that the requested order and Plan modifies Fleet's rights to its security interest in Debtor's sole residence within the meaning of § 1322(b)(2); that no cure and deacceleration of the mortgage is offered under § 1322(b)(5); and therefore the requested order is in violation of § 1322 regardless of the interest rate offered. Only with consent of the affected creditor can a "Judgment Creditor Order" of this nature become part of a Chapter 13 Plan when § 1322(b)(2) applies.
Accordingly, on reconsideration the Debtor's motion is again denied. The case is set for status to determine whether the parties can reach agreement on terms of an order to pay off the Judgment, or whether Debtor will instead seek to cure the arrearage and reinstate the mortgage. The earlier Opinion of January 21, 1988 is withdrawn and the Order of that date will be vacated.
UNDISPUTED FACTS
On December 27, 1981, Robert Daniels, Jr. ("Debtor") executed a Note in favor of Mortgage Associates, Inc. It was secured by a mortgage on certain residential property that was and is Debtor's only residence. This Note was subsequently assigned to Fleet Mortgage Corporation ("Fleet"), the creditor herein. The balance due was payable in monthly installments with interest at the contract rate of 15½% annually "until paid". However, there is no provision therein specifically providing for that or any specified interest rate to continue to be due after foreclosure judgment. The mortgage is not due to be paid off until January 1, 2012, long after the proposed Chapter 13 Plan will end. (Ex. B.1, Motion to Reconsider.) The Note was given in consideration for a loan upon Debtor's purchase of the mortgaged Illinois property, his present residence which he is not surrendering under the Chapter 13 Plan.
Debtor made the required mortgage payments until June of 1986 and then defaulted on the loan. Thereafter, Fleet sued in our District Court to foreclose the mortgage. That action was brought under the former Illinois Mortgage Foreclosure Act. On February 5, 1987, a Default Order was entered against the mortgagors, and also a Judgment of Foreclosure and Sale. The District Court found that the total Judgment indebtedness amounted to $39,926.60 including principal, interest to that date, attorneys fees, and costs. Debtor claims a value of $46,000 to that home. (Dr. Chapter 13 Petition filed March 13, 1987, real estate schedule.) Debtor therefore claims an equity of about $6,000 in the property.
On March 13, 1987, Debtor filed this proceeding under Chapter 13 of the Bankruptcy Code. Debtor's Plan has not yet been confirmed. Confirmation of the Plan awaits ruling on Debtor's pending motion to pay Fleet's Foreclosure Judgment by a "Judgment Plan" with payments over the five year life of the plan.
*53 In the meantime, Fleet has moved to modify the stay to permit it to proceed with the sale following foreclosure. Fleet has agreed that the stay should remain in effect until the interest issue is decided and Debtor has an opportunity to offer a judgment order that meets Fleet's demands. Therefore the stay has remained in effect by agreement while the parties briefed and the Court decided the issues before it.
DISCUSSION
In an imperfect world it appears inevitable that many debtors will not file for protection in bankruptcy until the eve of disaster. In Chapter 13 cases, that point often comes after the homestead is foreclosed on and judgment is entered, but just prior to foreclosure sale. When that happens prior to sale, Debtor may cure and deaccelerate the mortgage in bankruptcy under 11 U.S.C. § 1322(b)(5), In re Clark, 738 F.2d 869 (7th Cir.1984), both under the old Illinois Mortgage Act, In re Schnupp, 64 B.R. 763 (Bankr.N.D.Ill.1986); In re Tukes, Bankr. No. 86 B 5418 (Bankr.N.D. Ill.1988, J. Ginsberg, unpublished) and also under the new Illinois Mortgage Act, In re Josephs, 85 B.R. 500 (Bankr.N.D.Ill., J. Wedoff, 1988).
Had Debtor here simply sought to deaccelerate and cure the mortgage, the question of interest rate would be decided as a cure problem under § 1322(b)(5).
Under § 1322(b), the Chapter 13 Plan may
(2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims;
* * * * * *
(5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due.
Debtor disclaims any wish to "cure" under § 1322(b)(5). Should § 1322 not apply here, the Court would be obliged to consider § 1325(a)(5)(B)(ii) which provides that the court shall confirm a Chapter 13 Plan if
(5) with respect to each allowed secured claim provided for by the plan
(A) the holder of such claim has accepted the plan;
(B)(i) the plan provides that the holder of such claim retain the lien securing such claim; and
(ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; or
(C) the debtor surrenders the property securing such claim to such holder.
Analysis of § 1325(a)(5)(B)(ii) would then deal with the interest rate issue.
The parties assumed in their briefing that a Judgment Order is permissible in the absence of creditor agreement; they only disputed the applicable interest rate. Therefore this Court did not originally focus on the underlying question of whether any such order can be crammed down in Chapter 13 on a creditor secured by Debtor's only residence that objects to such Order for any reason. In failing to reach that question, the earlier opinion did not address the issue properly.
Under Illinois foreclosure law, Illinois is a "lien" state, not a "title" state. The often loosely described "merger of mortgage into foreclosure judgment" does not pass title or substantially alter creditors' rights. See Clark, Schnupp, Tukes, and Josephs supra. As this Court and Judge Ginsberg discussed in Schnupp and Tukes under the former Illinois foreclosure law, following entry of foreclosure judgment the creditor retains its mortgage lien until after foreclosure sale. Judge Wedoff likewise found in Josephs under the new Illinois foreclosure law that "it cannot be said that a judgment of foreclosure under the IMFL [new foreclosure law] terminates the *54 pre-foreclosure relationship between mortgagor and mortgagee." The opinions in those cases are referred to for the rationale thereof.
All those decisions ruled that because the relationship of mortgager and mortgagee is not terminated by foreclosure judgment order, whether under the former or current foreclosure law in Illinois, a Chapter 13 debtor retains the option under § 1322(b)(5) to propose a cure of the mortgage default even after entry of that judgment.
However, that right to cure stems from the continued existence of the mortgage. For reasons discussed in the foregoing cited cases (and the authority cited in those cases), it must be concluded that the creditor here still has a "security interest" in Debtor's home through its original mortgage, not merely through the judgment lien. Its interest is therefore a "lien created by agreement," the definition of "security interest" under § 101(45) and referred to in § 1322(b)(2).
It cannot be doubted, nor has Debtor questioned, that the proposed Judgment Order would modify the rights of Fleet under the mortgage rights to amounts and timing of payments, interest rate, and foreclosure for nonpayment, to mention the most obvious. While the stay of foreclosure is not a Plan "modification" of creditor rights that by itself is forbidden by § 1322(b)(2), the other modifications are forbidden in the case of Debtor's principal residence.
Where § 1322(b)(2) applies, then we do not reach § 1325(a)(5)(B)(ii). The latter provision applies only if rights of the secured creditors are modified by the plan, but under § 1322(b)(2) such modification is not permitted as to debtor's principal residence. As to such property there may only be cure of arrearage under § 1322(b)(5). In re Stamper, 84 B.R. 519, 523 (Bankr.N. D.Ill., J. Ginsberg, 1988).
Accordingly, in the absence of creditor agreement Debtor can affect Fleet's mortgage security interest only through cure under § 1322(b)(5). However, there is clearly no request in the Plan or pending Motion to reinstate, deaccelerate, and restore the mortgage to pre-default conditions. In re Taddeo, 685 F.2d 24 (2d Cir. 1982). Indeed, Debtor argues clearly that he does not intend a cure under § 1322(b)(5). Since no cure is proposed and the Judgment Order is barred by § 1322(b)(2), the Debtor's motion must be denied.
Were cure attempted under § 1322(b)(5), or were no cure required and the Court could consider this matter under § 1325(a)(5)(B)(ii), we would analyze the many cases considering appropriate interest rates and their various rationales and often conflicting results. See, e.g., cases cited in earlier opinion, and in In re Stamper, supra. In the context of what is presented here, however, no such analysis is appropriate.
Congress has provided a special limitation on the ability of Chapter 13 debtors to modify the rights of secured mortgage creditors as to their homes, but also a special right to cure arrearages in order to save those homes. Congressional intent is quite clear, and debtors must follow the path laid out by statute. Unless they can negotiate creditor agreement to a Judgment Creditor Order of the sort presented here, it may not be "crammed down" without creditor consent in the face of § 1322(b)(2).
Upon reconsideration, Debtor's motion is again denied and the matter is set for status to ascertain whether the parties will reach agreement or Debtor will amend his Plan to seek a cure of arrearages under the mortgage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619565/ | 13 So. 3d 478 (2009)
F.W.
v.
DEPARTMENT OF CHILDREN AND FAMILIES.
No. 3D08-2828.
District Court of Appeal of Florida, Third District.
July 1, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619590/ | 152 So. 2d 119 (1963)
Frank BEST, Jr., Plaintiff-Appellant,
v.
J & B DRILLING COMPANY, Inc., et al., Defendants-Appellees,
General Insurance Company of America, Intervenor-Appellant.
No. 817.
Court of Appeal of Louisiana, Third Circuit.
April 9, 1963.
Rehearing Denied May 1, 1963.
Certiorari Refused June 14, 1963.
*120 Jacque Pucheu, Euncie, for plaintiff-appellant.
Plauche & Plauche, by A. L. Plauche, Lake Charles, for intervenor-appellant.
Edgar Perkins, DeQuincy, for defendant-appellee.
Cavanaugh, Hickman, Brame & Holt, by Meredith T. Holt, Lake Charles, for defendant-appellee.
Before TATE, SAVOY and CULPEPPER, JJ.
SAVOY, Judge.
Plaintiff filed this action in tort for damages which he sustained resulting from an accident which occurred on a drilling rig owned and operated by J & B Drilling Co., Inc. Made defendants were J & B Drilling Co., Inc. (hereinafter referred to as J & B), and its insurer, Travelers Insurance Company.
After a lengthy trial, the trial court held that plaintiff's sole remedy was under the Workmen's Compensation Act of this State, and accordingly dismissed his suit. This appeal followed.
In his petition, plaintiff alleged that on December 2, 1960, he was working for Helen Brown as a machinist; that several days prior to December 2, 1960, J & B had plaintiff's employer repair an air compressor used on a drilling rig owned by it; that on the above date plaintiff was sent by his employer, together with another employee, to an oil rig owned by J & B for the purpose of checking said air compressor; that the compressor was delivered to the well site and was installed by employees of J & B. After said installation, plaintiff climbed upon said air compressor to check the unload valve; that while plaintiff was checking the compressor, it exploded, causing him severe injuries. Plaintiff invoked the doctrine of res ipsa loquitur, and pleaded, alternatively, that if the doctrine was not applicable, the employees of J & B were negligent, which negligence consisted of:
1. Mishandling said air compressor causing oil to get in the valves resulting in the explosion;
2. Negligently handling said compressor so as to cause the clogging of lines and the air compressor to explode; and
3. In failing to properly install said compressor so that it would not explode while plaintiff was standing on it.
Defendants filed an answer alleging that any rights which plaintiff may have are exclusively under the provisions of the Workmen's Compensation Act for the reason that the work done at the time of the accident was part of the trade, business and occupation of J & B. Defendants alleged alternatively that if the court should find that the proximate cause of the accident was the negligence of the employees of J & B, then plaintiff was contributorily negligent in the following respects:
1. He failed to keep a proper lookout;
2. He failed to make the proper repair on said compressor; and
3. He failed to follow normal and customary procedures while installing said air compressor.
Defendants also urged that plaintiff assumed the risk of his employment. Defendants *121 also pled in the alternative that at the time of the accident, plaintiff was an employee pro hac vice (for that particular occasion) of J & B.
Defendants filed a third-party petition against Brown. No trial was had on the third-party petition. The court tried only the principal demand.
The compensation carrier of Brown intervened, praying that it be allowed to recover for any compensation and medical paid or which might be paid in the future on behalf of plaintiff.
The air compressor which exploded in the instant case was manufactured by Westinghouse Electric Company. It had been sent by J & B to Brown on two (2) previous occasions for repairs. On the third occasion the compressor was sent to Brown, no repairs were made but the compressor was allowed to run for several hours. The shop foreman at Brown's, being satisfied that the compressor was functioning properly, sent the compressor to the well site. The compressor was delivered to the employees of J & B. Plaintiff also accompanied the truck driver who delivered the compressor. He was instructed by the shop foreman for Brown to check said compressor at the well site, particularly the lines and other attachments to the rig. After the compressor was installed on the rig by employees of J & B, plaintiff climbed on the compressor and instructed an employee of J & B to commence running the compressor at a slow speed. Shortly thereafter plaintiff signaled the driller to increase the speed to the normal rpm (revolutions per minute). The driller complied with plaintiff's request, and an explosion occurred. The head of the high pressure cylinder of the compressor was blow off, causing plaintiff the injuries for which he is suing.
The question for decision is whether, under the facts of this case, the action is one arising in tort or whether it comes under the workmen's compensation statute of this State.
LSA-R.S. 23:1061 reads as follows:
"Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
"Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor."
Plaintiff's first specification of error is that the district court considered what other drilling contractors in the area did in the business with respect to repairing their equipment. In the case of Stansbury v. Magnolia Petroleum Company, (La.App., 1 Cir., 1957), 91 So. 2d 917, the court said:
"We feel that welding is an essential and integral part of the business of a company engaged in the `exploration, production and disposal of oil, gas and other minerals.' We know, as a fact, *122 that all the major oil companies of this area engage welders and other workmen of a similar nature as their regular employees. We also know, as a fact, that any company owning oil derricks requires the services of welders for the maintenance and repair of their derricks. And for such maintenance and repair, they have welders in their regular employment."
The finding by the trial court that J & B and others in the same trade or business in the area repaired their own equipment and maintain such tools as are necessary to repair compressors and other machinery and equipment employed by them on their drilling rigs, is substantiated by the testimony of Harold Dunham, an employee of J & B.
Plaintiff contends that the work done by Brown on the J & B compressor was a major overhaul, particularly since it involved machine work on a lathe. The district judge has answered this contention in his written reasons for judgment by saying:
"* * * Unquestionably, drilling contractors are not equipped with lathes to reface valve seats. However, there was considerable testimony to the effect that instead of refacing the valves they could have been replaced through a valve kit just as easily and economically as the refacing work that was done in this instance by H. Brown Machine Shop. I do not believe there was much dispute about this. It appeared that H. Brown simply preferred to reface the valves, because it had the machinery in its shop to do such work. But they had also refaced valves for other companies in connection with such equipment. In this case the compressor was sent to H. Brown Machine Shop simply to be fixed so that it would work properly, and certainly there was no evidence introduced which would indicate that these valves had to be refaced rather than replaced. The replacing of the valves could have been done by J & B Drilling Company's own employees, and there is evidence that such work is generally done by drilling companies in this area.
"Furthermore, it is noted that Mr. Best did no part of the machine work on these valves. While he was a machinist by trade, he was also a mechanic, and his specific duties on the occasion of this accident were to go to the rig and check there to see if there was not something wrong with the lines to which the compressor was attached, and particularly the unloader control valve, which were located on the rig and were not taken to the machine shop for repair. Certainly the checking and repairing of the lines and adjustment of the unloader control valve were part of the regular business of J & B Drilling Company."
In Thibodaux v. Sun Oil Company, 218 La. 453, 49 So. 2d 852, the Supreme Court had under consideration an interpretation of LSA-R.S. 23:1061. The Court held that where a company was engaged in drilling oil wells and employed an independent contractor to work over an oil well, and later engaged another independent contractor to fish out lodged tools, the independent contractors were employed to do work which was a part of the "business, trade or occupation" of the company, and the remedy provided by the workmen's compensation act for injuries sustained by the employees of such independent contractors was exclusive.
This Court is of the opinion that the judgment of the district court holding that the only remedy afforded plaintiff under the facts of this case is to recover workmen's compensation payments under the provisions of LSA-R.S. 23:1061 is correct.
Having reached the above conclusions, there is no need to discuss the doctrine of res ipsa loquitur invoked by plaintiff, or the other defenses advanced by defendants.
Plaintiff next complains that the order of the judge, revoking a previous *123 order wherein plaintiff had been allowed to file the suit originally in forma pauperis, was not supported by the evidence. On this point the record shows that plaintiff owns his home, on which there remains an unpaid balance of approximately $850.00. Plaintiff also owns the furniture in his home. He has an interest in a business; that he is earning in excess of $85.00 per week; and that he owes medical bills because of the accident and the operation of a son in Houston, Texas. The trial courts are granted much latitude in matters of this kind. We see no reason for disturbing the ruling of the trial court revoking its previous order.
For the reasons assigned, the judgment of the district court is affirmed. Plaintiff to pay the costs of this appeal.
Affirmed.
On Application for Rehearing.
En Banc. Rehearing denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623136/ | 126 S.W.3d 705 (2004)
Desiree Menseer DIAZ, Appellant,
v.
Armando DIAZ, Appellee.
No. 13-03-158-CV.
Court of Appeals of Texas, Corpus Christi-Edinburg.
February 5, 2004.
*706 Kelly K. McKinnis, Attorney At Law, McAllen, for Appellant.
Nereyda Morales Martinez, Attorney At Law, Pharr, for Appellee.
Armando Diaz, Brownsville, pro se.
Before Chief Justice VALDEZ and Justices YAÑEZ and CASTILLO.
OPINION
Opinion by Justice CASTILLO.
Appellant Desiree Menseer Diaz appeals from a decree of divorce granted after a final hearing held in her absence. We dismiss for want of jurisdiction.
I. THE RECORD
On May 7, 2002, Mr. Diaz filed an original petition for divorce in which he sought dissolution of the parties' marriage. In the petition, Mr. Diaz identified the parties' minor children but did not request conservatorship of or support for them or otherwise incorporate a suit affecting the parent-child relationship ("SAPCR"). See Tex. Fam.Code Ann. § 6.406(b) (Vernon 1998); see also Tex. Fam.Code Ann. § 101.032 (Vernon 2002).
On October 28, 2002, Ms. Diaz mailed a letter to the court in which she stated she was writing in response to suit # F-17-4-02-4, the case below. The letter was filed of record. In the letter, Ms. Diaz identified Mr. Diaz and the parties' two minor children. She sought dissolution of the parties' marriage relationship. Like Mr. Diaz, Ms. Diaz also did not request conservatorship of or support for the minor children.
The final hearing convened on November 22, 2002. Ms. Diaz was not present. The trial court acknowledged that Ms. Diaz had filed an answer and asked if she had been given notice of the final hearing. Mr. Diaz's counsel said yes, and the hearing proceeded. Mr. Diaz testified and requested dissolution of the marriage, division of the community estate, and sole managing conservatorship of the children. The trial court took judicial notice of its file. It signed a post-answer default decree of divorce that dissolved the parties' marriage, named Mr. Diaz as sole managing conservator of the children and Ms. Diaz as possessory conservator, and ordered Ms. Diaz to pay child support.
We note that Mr. Diaz alleged in his petition that there were no court-ordered conservatorships, guardianships, or other court-ordered relationships affecting the children. His testimony at the final hearing did not substantiate that allegation. Ms. Diaz filed a verified motion for new trial that alleged that the children were under the continuing jurisdiction of a Minnesota court. Her testimony at the hearing on her motion for new trial substantiated *707 the allegation. Mr. Diaz did not dispute or contradict at the hearing that the Minnesota court had continuing jurisdiction, nor does he do so on appeal. See Tex.R.App. P. 38.1(f) (providing that appellate court will accept as true facts stated by one party unless another party contradicts them).
The trial court denied Ms. Diaz's motion for new trial. This appeal ensued.
II. JURISDICTION
Our initial inquiry is always whether we have jurisdiction over an appeal. Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex.App.-Corpus Christi 2003, no pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993)). We are obligated to determine, sua sponte, our own jurisdiction. Garcia, 101 S.W.3d at 779 (citing N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex.1990) (per curiam)). Jurisdiction of a court is never presumed. Garcia, 101 S.W.3d at 783. Our jurisdiction is established exclusively by constitutional and statutory enactments. Garcia, 101 S.W.3d at 784; see TEX. CIV. PRAC. & REM.CODE ANN. § 51.014 (Vernon Supp.2004). Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment. Garcia, 101 S.W.3d at 784. Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. Id. If the record does not affirmatively demonstrate our jurisdiction, we must dismiss the appeal. Id.
A. Mandatory Joinder
A divorce case involving children of the marriage is actually two separate lawsuits. In re Marriage of Morales, 968 S.W.2d 508, 511 (Tex.App.-Corpus Christi 1998, no pet.). Thus, if the parties to a divorce proceeding are the parents of a child, any suit for dissolution of their marriage must include a SAPCR. Tex. Fam.Code Ann. § 6.406(b) (Vernon 1998); Morales, 968 S.W.2d at 511. This joinder is mandatory. Morales, 968 S.W.2d at 511. Failure to follow joinder mandated by statute renders a judgment void. Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex.App.-Corpus Christi 2001, no pet.); see Minga v. Perales, 603 S.W.2d 240, 241 (Tex.App.-Corpus Christi 1980, no writ) (setting judgment aside and remanding for joinder of necessary party).
We cannot conclude that the pleading Mr. Diaz filed incorporated a SAPCR. The petition did not comply with the pleading requirements mandated by section 102.008 of the family code. See Tex. Fam. Code Ann. § 102.008 (Vernon 2002). Specifically, the petition did not state what action Mr. Diaz wanted the trial court to take with regard to conservatorship and support of the children. See Dohrn v. Delgado, 941 S.W.2d 244, 248 (Tex.App.-Corpus Christi 1996, orig. proceeding). Thus, we conclude that Mr. Diaz's suit for dissolution of the marriage did not include the requisite SAPCR. See Tex. Fam.Code Ann. § 6.406(b) (Vernon 1998); see also In re S.R.M., 601 S.W.2d 766, 770 (Tex.App.-Amarillo 1980, writ ref'd n.r.e.).[1]
Accordingly, Mr. Diaz's petition is defective and will not support a default judgment. See C & H Transp. Co. v. Wright, 396 S.W.2d 443, 446 (Tex.Civ.App.-Tyler 1965, writ ref'd n.r.e.). Where there is no pleading, there can be no judgment. Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex.1983). We hold that the trial court's post-answer default decree of divorce is void. See Daniels, 45 S.W.3d at *708 282. We have no jurisdiction over void orders. See id.
B. Finality
Moreover, a trial court's authority to resolve issues in controversy between parties to a divorce suit may be restricted because the court lacks the required jurisdiction to resolve child custody issues. Tex. Fam.Code Ann. § 6.308(b) (Vernon 1998); see Dawson-Austin v. Austin, 968 S.W.2d 319, 324 (Tex.1998) (quoting Comisky v. Comisky, 597 S.W.2d 6, 8 (Tex.Civ. App.-Beaumont 1980, no writ) ("Where the trial court in a divorce proceeding has no personal jurisdiction over the respondent, the trial court has the jurisdiction to grant the divorce, but not to determine the managing conservatorship of children or divide property outside of the State of Texas.")). It follows, therefore, even if the trial court's post-answer default decree of divorce is not void because the requisite SAPCR has not been joined, the trial court's jurisdiction to determine conservatorship and support of the children has not been decided. Any decree of divorce is therefore interlocutory. See Dawson-Austin, 968 S.W.2d at 324. We also have no jurisdiction to review an interlocutory divorce decree. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp.2004); see also Garcia, 101 S.W.3d at 784.
III. CONCLUSION
Accordingly, we dismiss this appeal for want of jurisdiction. See Saavedra v. Schmidt, 96 S.W.3d 533, 550 (Tex.App.-Austin 2002, no pet.). The cause remains pending in the trial court. See id.
NOTES
[1] For the same reasons, Ms. Diaz's answer also does not contain the requisite SAPCR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623150/ | 126 S.W.3d 358 (2004)
G. George BERTRAM, Esq., KBA Member No. 81224, Movant,
v.
KENTUCKY BAR ASSOCIATION, Respondent.
No. 2004-SC-0023-KB.
Supreme Court of Kentucky.
February 19, 2004.
G. George Bertram, Louisville, Counsel for Movant.
Jay R. Garrett, Bruce K. Davis, Executive Director, Kentucky Bar Association, Frankfort, Counsel for Respondent.
OPINION AND ORDER
By agreement between Movant and Bar Counsel, pursuant to SCR 3.480(2), G. George Bertram, of Louisville, Kentucky, moves this Court for an order suspending his license to practice law in the Commonwealth of Kentucky for five years, or until such time that his criminal probation expires, whichever occurs first.
Movant was admitted to the practice of law in Kentucky on October 22, 1985, and was temporarily suspended on March 14, 2002, pursuant to SCR 3.166, following a criminal conviction in the Russell Circuit Court of one count of driving under the influence, a misdemeanor, and one count of first-degree possession of a controlled substance, while in possession of a firearm, a Class D felony. Movant was charged in KBA File 8616, on April 24, 2003, with a violation of SCR 3.130-8.3(b), which states that "[i]t is professional misconduct for a lawyer to: ... [c]ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."
On April 29, 2003, Movant was again charged with a violation of SCR 3.130-8.3(b) in KBA File 9590, for pleading guilty to one count of possession of a controlled substance, a felony, on July 2, 2002, in the Wayne Circuit Court.
On August 19, 2003, Movant was charged for a third time with a violation of SCR 3.130-8.3(b) in KBA File 8978. This violation stemmed from Movant's illegal *359 use of intoxicating substances, including the prescription drug Oxycontin, during his representation of Willie Rollins in a criminal matter before the McCreary Circuit Court. On at least one occasion, Movant appeared in court to represent Mr. Rollins while under the influence of drugs.
Movant admits that he violated SCR 3.130-8.3(b) in KBA Files 8616, 9590, and 8978 when he engaged in the above-stated conduct and asks us to terminate these proceedings, and any other proceedings before this Court, so that he may consent to a suspension from the practice of law in Kentucky for a period of five years, or until such time that his criminal probation expires, whichever comes first. Movant asks that his suspension be effective starting from March 14, 2002, the date of his automatic suspension pursuant to SCR 3.166. Movant further states that if his criminal probation should expire first, that he shall remain suspended from the practice of law in Kentucky for a minimum of three years from March 14, 2002, and will not thereafter seek reinstatement until no earlier than March 14, 2005. Movant also agrees that he will continue his monitoring contract with the Kentucky Lawyer's Assistance Program through March 14, 2007.
Therefore, it is ordered that Movant's Motion for Suspension from the Practice of Law be granted under the terms proposed within.
It is further ORDERED that:
1. Movant, G. George Bertram, is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of five years, or until such time his criminal probation expires, whichever event occurs first, effective March 14, 2002. In no instance shall Movant be permitted to apply for reinstatement to the practice of law in Kentucky until he has served a minimum of three years suspension.
2. In accordance with SCR 3.450, Movant, G. George Bertram, is directed to pay all costs associated with these disciplinary proceedings for which execution may issue from this Court upon finality of this Opinion and Order.
3. Movant, G. George Bertram, shall continue his monitoring contract with the Kentucky Lawyer's Assistance Program until March 14, 2007.
4. Pursuant to SCR 3.390, Movant shall, within ten days from the entry of this Opinion and Order, notify in writing all courts in which he has matters pending and all clients of his inability to represent them, and furnish copies of said letters of notice to the Director of the Kentucky Bar Association, where he has not already done so. Movant shall further cancel and cease any advertising activities in which he is still engaged.
LAMBERT, C.J., COOPER, JOHNSTONE, and STUMBO, JJ., concur.
GRAVES, KELLER, and WINTERSHEIMER, JJ., dissent and would deny the motion and remand for further proceedings.
Entered: February 19, 2004.
/s/ Joseph E. Lambert
CHIEF JUSTICE | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623158/ | 126 S.W.3d 394 (2004)
Eric JEW, Plaintiff/Respondent,
v.
HOME DEPOT USA, INC., Defendant/Appellant.
No. ED 82567.
Missouri Court of Appeals, Eastern District, Division Two.
January 20, 2004.
*395 Dennis J. Flavin, Derald L. Gab, P.C., St. Louis, MO, for respondent.
Jeffery T. McPherson, Cynthia A. Sciuto, Armstrong Teasdale, St. Louis, MO, for appellant.
KATHIANNE KNAUP CRANE, Judge.
Defendant appeals from the trial court's denial of its Rule 74.05(d) motion to set aside a default judgment entered against it in the amount of $250,000 on a petition that requested damages in an amount "less than $75,000." We hold that the trial court did not abuse its discretion in denying the motion to set aside because defendant failed to support its claim of a meritorious defense; however, the trial court did not have jurisdiction to enter a judgment in excess of $74,999. We reduce the award of damages to $74,999, and affirm as so modified.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Eric Jew, filed a lawsuit against defendant, Home Depot USA, Inc., to recover damages for personal injuries suffered at defendant's store on South Kingshighway in the City of St. Louis. He prayed for a judgment in his favor "in an amount of money in excess of $25,000 and less than $75,000." The sheriff of the City of St. Louis filed a proof of service showing service on "Linda Logan-mgr" at "Home Depot" on South Kingshighway on August 23, 2001. Four months later, after defendant failed to file an answer or appear, plaintiff filed a motion for judgment in his favor in the amount of $74,999. The circuit court minute entries indicate that the circuit clerk's office subsequently mailed notices to "Home Depot USA Inc." on January 8, 2002, February 20, 2002, April 16, 2002, May 23, 2002, July 17, 2002, September 4, 2002, and October 16, 2002.
The trial court heard the motion for a default judgment on October 18, 2002. Plaintiff testified to his injuries and medical treatment. He testified that his health care bills were $3,315, and that he expected *396 to require additional medical care in the future. Plaintiff thereafter orally moved to amend his prayer for damages to eliminate the phrase "less than $75,000," and asked the court to enter a judgment in the amount of $250,000. The trial court entered judgment in plaintiff's favor in the amount of $250,000 on October 18, 2002.
On November 27, 2002, defendant filed a motion to set aside the default judgment pursuant to Rule 74.05(d) on the grounds that its failure to answer or otherwise appear was inadvertent and not intentionally or recklessly designed to impede the judicial process and that it had a meritorious defense. Defendant's corporate counsel filed a supporting affidavit verifying "that the statements set forth in Home Depot's Motion to Set Aside Default Order and Judgment, filed herewith, are true and correct." The remainder of the affidavit attested that defendant had no employee named "Linda Hagens" at its South Kingshighway store.[1] No other affidavit was filed. The trial court denied the motion for the reason that "Home Depot has not filed an affidavit or presented testimony in support of the grounds asserted in support of its motion," and "therefore failed to meet its burden of proof."
DISCUSSION
A. Motion to Set Aside the Default Judgment
For its first point, defendant asserts that the trial court abused its discretion in denying its motion to set aside the default because it established both good cause and a meritorious defense.
Rule 74.05(d) allows a default judgment to be set aside "upon motion stating facts constituting a meritorious defense and for good cause shown." The decision on a motion to set aside a default judgment lies within the trial court's discretion. Yerkes v. Asberry, 938 S.W.2d 307, 309 (Mo.App.1997). We will not reverse the trial court's decision unless the record indicates an abuse of discretion. Id. However, the discretion not to set aside a default judgment is narrower than the discretion to set it aside, and we are more likely to interfere when a trial court has denied a motion to set aside. Id.
The motion to set aside must allege facts that demonstrate a defendant's reasonable diligence or good cause for the default and the existence of a meritorious defense. Rule 74.05(d); Great Southern Savings & Loan Ass'n v. Wilburn, 887 S.W.2d 581, 583 (Mo. banc 1994). A motion to set aside does not prove itself. Gorzel v. Orlamander, 352 S.W.2d 675, 678 (Mo.1961). The motion must be verified or supported by affidavits or sworn testimony. Id; Hinton v. Proctor & Schwartz, Inc., 99 S.W.3d 454, 458 (Mo.App.2003). A defendant is not entitled to have a default judgment set aside if the motion to set aside a default judgment lacks facts relevant and material to a showing of good cause and a meritorious defense. Bredeman v. Eno, 863 S.W.2d 24, 26 (Mo.App. 1993). "When the meritorious defense is factual in nature, the party in default should recite particular facts, which if proved, would constitute a meritorious defense." Id. Factual detail is required so that the court may judge whether the defense is meritorious and sufficient. Gorzel, 352 S.W.2d at 678.
Defendant argues that it has a meritorious defense because an eyewitness exists who refutes plaintiff's account of his injury. The affidavit does not mention the eyewitness. The motion, which was verified *397 by the affidavit, see State v. Bray, 818 S.W.2d 291, 295 (Mo.App.1991), recites solely that "an eyewitness refutes plaintiff's claim." The allegation that "an eyewitness refutes plaintiff's claim" fails to satisfy the pleading requirements of Rule 74.05(d). It does not contain sufficient detail for a court to evaluate whether the defense has merit. See Gorzel, 352 S.W.2d at 678. Further, it is conclusory because it fails to state what the eyewitness saw or other facts from which that conclusion can be drawn. See Crain v. Crain, 19 S.W.3d 170, 175 (Mo.App.2000). In addition, this statement was necessarily based on hearsay. See Ward v. Cook United, Inc., 521 S.W.2d 461, 472 (Mo.App.1975). It was not supported by an affidavit or testimony from the eyewitness who had personal knowledge. See Id.; Estep v. Atkinson, 886 S.W.2d 668, 674 (Mo.App.1994); Hinton, 99 S.W.3d at 459. The trial court did not abuse its discretion in finding that defendant had not supported its claim of a meritorious defense on this basis.
In its first point defendant also claims that it had a meritorious defense to the damage claim because plaintiff's damages were not supported by substantial evidence. Even if the amount of damages can be challenged in a proceeding to set aside under Rule 74.05 on non-jurisdictional grounds, a question we do not decide, defendant's motion and affidavit did not address damages in any way and in particular did not claim a meritorious defense to the amount of damages. Although failure of the evidence to support the amount of damages was subsequently brought to the court's attention by way of a reply memorandum of law, this does not cure the failure of the motion to state facts as required by Rule 74.05, and further the damage issue was not presented in the context of a meritorious defense. This issue is not preserved for our review. Crain, 19 S.W.3d at 175.
Because the motion did not contain sufficient facts to support the claim of a meritorious defense, we do not need to determine whether the motion properly alleged and supported a claim of good cause for the default. Bredeman, 863 S.W.2d at 26. Point one is denied.
B. Damages in Excess of Petition
For its second point defendant contends that the trial court erred in awarding $250,000 in damages because the petition only requested damages in an amount "less than $75,000". This is a claim that the court exceeded its jurisdiction in the sense that it had no authority to act. First Missouri Bank of St. Francois County v. Patterson, 696 S.W.2d 800, 801 (Mo.App.1985); Picou v. Picou, 800 S.W.2d 754, 755 (Mo.App.1990). The question of whether a default judgment should be vacated because it was void on jurisdictional grounds is a question of law that we review de novo. Smith v. Square One Realty Co., 92 S.W.3d 315, 316 (Mo.App. 2002). Subject matter jurisdiction may be raised at any time during the proceedings, including for the first time on appeal. Commercial Bank of St. Louis Co. v. James, 658 S.W.2d 17, 21 (Mo. banc 1983); Brunig v. Humburg, 957 S.W.2d 345, 348 (Mo.App.1997). Even if not raised by a party, we may examine subject matter jurisdiction sua sponte. Commercial Bank, 658 S.W.2d at 21.
In his petition, plaintiff prayed for "the judgment of this Court in his favor and against defendant Home Depot U.S.A., d/b/a Home Depot, in an amount of money in excess of $25,000.00 and less than $75,000.00 that will fairly and justly compensate him or his injuries and damages herein, his costs expended herein, and whatever other relief this Court deems *398 just and proper." (Emphasis added). Further, in his Motion for Judgment, plaintiff prayed for "$74,999.00, plus his costs expended herein, and for whatever other relief this Court deems just and reasonable."
Relief granted on default may not be other or greater than that which plaintiff demanded in the petition as originally filed and served on defendant. Section 511.160 RSMo (2000); LaPresto v. LaPresto, 308 S.W.2d 724, 726 (Mo.1957); Kocsis v. Kocsis, 28 S.W.3d 505, 509 (Mo. App.2000); Picou, 800 S.W.2d at 755; Patterson, 696 S.W.2d at 801. Section 511.160 is designed to prevent a plaintiff from taking advantage of a defendant, even one who has ignored a summons. LaPresto, 308 S.W.2d at 728. The petition must reasonably notify the defendant of the demand so the defendant would know the consequences of a default. Id. The theory underlying the strictness of section 511.160 "is the defendant in default is willing to have the plaintiff granted the relief his petition asked, but no intendment can be indulged that he is willing for other relief to be granted." White v. McFarland, 148 Mo.App. 338, 128 S.W. 23, 27 (1910); See also Patterson, 696 S.W.2d at 801.
A prayer for such other relief that the court deems just and reasonable does not allow an award or relief on default other or greater than originally demanded. See Picou, 800 S.W.2d at 755. Rule 55.33(b), which allows pleadings to be amended to conform to the evidence, does not apply in default proceedings. LaPresto, 308 S.W.2d at 726-27; Servco Equipment Co. v. C.M. Lingle Co., 487 S.W.2d 869, 871-72 (Mo.App.1972). The trial court lacked subject matter jurisdiction to enter a judgment in excess of the amount requested in the original petition. Point two is granted.
The judgment of the trial court is reduced to $74,999 and affirmed as so modified.
GLENN A. NORTON, P.J. and MARY K. HOFF, J. concur.
NOTES
[1] Defendant originally interpreted the handwriting on the sheriff's return to indicate a "Linda Hagens" was served rather than "Linda Logan." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619553/ | 152 So. 2d 599 (1962)
Marie Baucum SCOTT, Plaintiff-Appellant,
v.
HUNT OIL COMPANY et al., Defendants-Appellees.
No. 9820.
Court of Appeal of Louisiana, Second Circuit.
November 29, 1962.
On Rehearing April 1, 1963.
*601 Marie Baucum Scott, in pro. per.
J. R. Goff, John S. Hunt, Shreveport, for Hunt Oil Co. and Haroldson L. Hunt, Jr., Trust Estate, defendants-appellees.
Armand A. Gutierrez, Arthur Aitkens, Shreveport, for Placid Oil Co., defendantappellee.
Blanchard, Goldstein, Walker & O'Quinn, Shreveport, for General American Oil Co. of Texas, defendant-appellee.
Before HARDY, AYRES and BOLIN, JJ.
AYRES, Judge.
Plaintiff claims the ownership of an undivided 1/32 mineral interest in a certaindescribed tract of land in Claiborne Parish. She seeks a judgment recognizing her interest, and prays for an accounting of her alleged interest in all the oil, gas, and minerals produced from certain wells located upon adjacent property.
Made defendants are Hunt Oil Company, Placid Oil Company, General American Oil Company of Texas, and Haroldson L. Hunt, Jr., Trust Estate.
To plaintiff's petition, exceptions of no cause and of no right of action were filed and urged by all defendants. The exceptions are predicated upon the premise that plaintiff does not claim any mineral interest in the property upon which a well has been drilled and from which production is had, and that her mineral interest on properties adjacent to production has prescribed; and that since she has neither executed any lease held by the defendants, nor joined in any pooling and unitization agreement, she is not entitled to any rights or privileges flowing therefrom.
In addition, defendant, Hunt Oil Company, filed a motion to strike certain allegations from plaintiff's petition as being immaterial, argumentative, redundant, and insufficient, and predicated wholly upon evidence not admissible.
*602 The exceptions of no cause and of no right of action and the motion to strike were sustained. Plaintiff's suit was accordingly dismissed with prejudice. From that judgment, she prosecutes a devolutive appeal.
A determination of the question as to whether plaintiff's alleged mineral interest has or has not prescribed is unnecessary to a resolution of the issues presented by the exceptions. It suffices to say that plaintiff does not claim to own any mineral interest in the lands from which production of either oil or gas has been obtained. In the absence of some contractual relationship with the defendants, such as lessor or as a party to a voluntary pooling and unitization agreement, and in the absence of a forced unit created by orders of the Commissioner of Conservation, including property in which plaintiff has an interest, she could have no interest in production from property in which she claims no interest. That a forced unit has not been formed is affirmatively shown by the allegations of plaintiff's petition. The nonexistence of any contractual relationship between plaintiff and any of the defendants is likewise confirmed by her affirmative allegations.
As was stated in Dobbins v. Hodges, 208 La. 143, 23 So. 2d 26, 29,
"* * * when parties agree to unitize and integrate an entire tract of land, composed of contiguous or noncontiguous tracts, and provide for the payment of royalties in proportions according to the acreage and interest owned, the contract of the parties must govern."
Thus, parties may contract relative to the development of their properties and the sharing of production obtained from their several tracts. Such a contract would be the law between the parties.
The right of an owner of an adjacent estate to share in production obtained on a neighboring tract, in the absence of forced unitization, must be based upon a contractual relationship between the parties, who may, by such a contract, provide that a portion of the oil produced be deemed to have been produced from such adjacent property. No claim is made, as heretofore pointed out, that production has been obtained from a well physically located upon any property in which plaintiff claims a mineral interest. Nor, as already observed, does plaintiff claim to have any contractual relationship with any of the defendants as to the sharing of production from other lands.
Hence, plaintiff is obviously without a right to share production from adjacent property in which she claims no interest, and is, therefore, without right or interest in the subject matter of this action.
It is a fundamental rule that one who had no interest has no right or standing in court. State ex rel. Adema v. Meraux, 191 La. 202, 184 So. 825; Johnston v. City of New Orleans, 234 La. 697, 101 So. 2d 206. This rule is predicated upon the statutory requirement that
"* * * an action can be brought only by a person having a real and actual interest which he asserts." LSA-C.C.P. Art. 681. Thus, the want of interest is amenable to an exception of no right of action. Outdoor Electric Advertising v. Saurage, 207 La. 344, 21 So. 2d 375.
Under the aforesaid state of facts affirmatively appearing from the allegations of plaintiff's petition, she has no right to share in the production of oil, gas, or other minerals from property or lands in which she claims no interest. Additional allegations could not serve to state a cause of action where none exists. Hence, dismissal of plaintiff's action with prejudice was proper.
With reference to the motion to strike certain paragraphs from plaintiff's petition, our examination of those allegations confirms the correctness of the action taken by the trial court. No error in that regard *603 has been pointed out; nor do we find any error.
While a layman has the legal right to appear in court in proper person to prosecute or defend any action in which he is personally interested, no such right is extended to the representation of others. Hence, plaintiff's purported representation of third parties was wholly unauthorized.
We may, nevertheless, observe that the rights of such third parties are identical to that of the plaintiff, Marie Baucum Scott. Therefore, for the reasons hereinabove assigned, the petition, so far as it is applicable to them, does not disclose a cause of action.
For the reasons assigned, the judgment appealed is affirmed at plaintiff-appellant's cost.
Affirmed.
On Rehearing
AYRES, Judge.
The action of this court, upholding the action of the trial court in sustaining exceptions of no cause of action, was predicated upon the premise that the oil wells in which plaintiff asserted an interest in ownership, and from the production of which she sought an accounting, were not located upon property in which she claimed a mineral interest, nor upon property contained in a unit with which her property was pooled or unitized. So far as the opinion and decree relate to this premise, we adhere to our former opinion.
However, in an application for a rehearing, it was pointed out that it was also alleged that, among the oil wells concerned, a well designated as Leroy Ware No. 1 was drilled upon property in which plaintiff claims a mineral interest; that said well was placed in production on May 5, 1950, since when production has continued; that, pursuant to a lease under date of June 5, 1945, executed by Leroy Ware to the defendant, Hunt Oil Company, the latter drilled the aforesaid well. It may be appropriate, however, to observe that plaintiff contends the aforesaid lease is ineffective so far as her mineral interest is concerned for the reason that, at the time the lease was executed, her aforesaid mineral interest was then and now outstanding in her name and ownership (unleased).
Whether plaintiff has a mineral interest in the lands upon which the aforesaid well was drilled and an interest in the minerals produced therefrom, or some lesser interest therein such as in the nature of a royalty, are matters not now before us. Consideration of these matters could only be given on a trial of the merits of the case.
In evaluating the allegations of fact of plaintiff's petition, the truth of which must be accepted on the trial of an exception of no cause of action, there are certain basic legal principles by which we must be governed. For instance, the fruits produced by a thing belong to its owner although they may have been produced by the work and labor of a third person. LSA-C.C. Art. 501. Royalty, under a mineral lease, is rent in the form of a portion of the produce of the land. Logan v. State Gravel Co., 158 La. 105, 103 So. 526; Milling v. Collector of Revenue, 220 La. 773, 57 So. 2d 679. In claiming the fruits produced by a thing, or the minerals or royalty produced from land, the owner is obligated to reimburse a third person whose work and labor produced such fruits, minerals, or royalty, the expenses incurred by such third person. LSA-C.C. Art. 501; Martel v. Jennings-Heywood Oil Syndicate, 114 La. 351, 38 So. 253; Allies Oil Co. v. Ayers, 152 La. 19, 92 So. 720; Connette v. Wright, 154 La. 1081, 98 So. 674; Martel v. Hunt, 195 La. 701, 197 So. 402, 408; Huckabay v. Texas Company, 227 La. 191, 78 So. 2d 829.
Thus, where a co-owner or a colessee has explored and developed an oil or gas field without the concurrence or assistance of the other, the former is bound to account to the other for his proportionate share of the proceeds, less a proportionate *604 share of the expenses. The right of an owner, however, to refrain from exercising his right of ownership is absolute. LSA-C.C. Arts. 491, 496. Nevertheless, he may not enjoy the profits without participating in the expenses incurred in producing those profits. To permit him to do so would violate the moral maxim of the law that no one ought to enrich himself at the expense of another. Huckabay v. Texas Company, supra.
We conclude, therefore, that plaintiff's petition, under the allegations to which we have referred, discloses a cause of action against the defendant, Hunt Oil Company, a third person who has and is allegedly producing oil, gas, and other minerals from lands upon which plaintiff claims an interest. The allegations to which we have referred and other appropriate allegations of plaintiff's petition are, in our opinion, sufficient for the introduction of proof on the question of plaintiff's asserted mineral ownership in the lands described in her petition, or to some lesser interest therein, and, if established, to entitle her to an accounting for the oil, gas, and minerals produced from said lands.
The defendant, General American Oil Company of Texas, is alleged to have acquired the leasehold rights of the Hunt Oil Company in and to a described 40-acre tract of the lands in which plaintiff claims a mineral interest and which acreage allegedly comprises a portion of a voluntary unit of 160 acres from which production began on January 10, 1954. Production, however, is not alleged to have been obtained from the land in which plaintiff claims a mineral interest. Nor does plaintiff claim that she was a party to the voluntary drilling unither allegations are that she was not a party to such an arrangement.
The defendant, Placid Oil Company, is the alleged purchaser of production from another voluntary unit comprising 160 acres. In the formation of this unit, plaintiff also asserts she was not a party. The production from this unit is not upon lands in which she claims a mineral interest.
The defendant, Haroldson L. Hunt, Jr., Trust Estate, is the alleged lessee under a lease executed by plaintiff's mother and five of her brothers and sisters, to which she was not a party and in which, of course, she has no interest. Without interest, she is without a cause or right of action to seek a cancellation of the lease.
On the aforesaid bases, our original opinion and decree are fully applicable, under the allegations of plaintiff's petition to these three latter defendants. However, our original decree, sustaining an exception of no cause of action urged by the defendant, Hunt Oil Company, by means of a motion to strike, followed by a formal exception of no cause of action filed in this court, is erroneous.
Therefore, the judgment appealed, sustaining the exception filed on behalf of the defendant, Hunt Oil Company, is annulled, avoided, reversed, and set aside, and the exception of no cause and of no right of action filed and urged on its behalf is now overruled.
Our original decree, affirming the judgment of the trial court sustaining an exception of no cause of action on behalf of the defendants, General American Oil Company of Texas, Placid Oil Company, and Haroldson L. Hunt, Jr., Trust Estate, is reinstated and made the final judgment of this court; and,
Accordingly, this cause, as between the plaintiff and the defendant, Hunt Oil Company, be, and it is hereby, remanded to the Honorable, the Second Judicial District Court in and for Claiborne Parish, Louisiana, for further proceedings in accordance with law and consistent with the views hereinabove expressed.
The defendant, Hunt Oil Company, is cast with the cost of this appeal, the assessment of all other costs to await final judgment.
Affirmed in part, reversed in part, and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619603/ | 152 So. 2d 857 (1963)
Edward H. RIZZUTO
v.
The EMPLOYERS LIABILITY ASSURANCE CORP., Ltd., and Beulah M. Tooley.
No. 1047.
Court of Appeal of Louisiana, Fourth Circuit.
May 6, 1963.
Steven R. Plotkin, New Orleans, for plaintiff and appellant.
Drury, Lozes & Dodge, Felicien P. Lozes, New Orleans, for defendants and appellees.
Before McBRIDE and REGAN and SAMUEL, JJ.
REGAN, Judge.
Plaintiff, Edward H. Rizzuto, instituted this suit against the defendants, Beulah M. Tooley and her liability insurer, Employers Liability Assurance Corporation, endeavoring to recover the sum of $40,401.51, representing personal injuries and property damage incurred when the defendant's vehicle failed to obey a stop sign and as a result thereof, collided with his car in the intersection of Orleans Avenue and North Alexander Street in the City of New Orleans.
The defendants answered and denied the existence of any negligence on their part, and in the alternative pleaded that the plaintiff was guilty of contributory negligence.
From a judgment in favor of the plaintiff in the amount of $947.00, he has prosecuted this appeal.[1]
*858 The defendants have neither appealed nor answered the appeal; therefore, they obviously concede the correctness of the trial court's judgment to the effect that the defendant driver's negligence was the proximate cause of the accident.
Plaintiff initially complained that the lower court's award to him for personal injuries was grossly inadequate. Of the total amount of the judgment, $750.00 thereof was the sum awarded for bodily injury.
The record reveals that as a result of the accident plaintiff bruised his left knee and shoulder; however, he experienced very little pain and no residual effects therefrom. In order to evaluate the extent of his injuries, plaintiff offered in evidence the testimony of Dr. R. C. Grunsten, an orthopedist, who treated him after the accident, and he expressed the opinion that the plaintiff suffered a ligamentous sprain or a lumbosacral sprain in the lower back.
The accident occurred on August 7, 1961, and the plaintiff did not consult Dr. Grunsten until three days thereafter. Dr. Grunsten ordered X-rays taken which were negative, other than revealing that the plaintiff possessed a congential defect which was not aggravated by the injury to his back. Dr. Grunsten asserted that the plaintiff's complaints of pain were supported by tenderness and limitation of motion; however, he could discern no muscle spasm.
Plaintiff was treated five times by this physician, who found on August 29, 1961 that he had no objective symptoms to indicate the sprain had not healed. Dr. Grunsten examined plaintiff on two later occasions, which occurred in the month of September, 1961, and finally discharged him on September 21. The medical evidence preponderates to the effect that he had completely recovered from the sprain by August 29, or about three weeks after the accident.
Thus the evidence establishes that the plaintiff incurred an extremely mild sprain. In addition to displaying sparse objective symptoms to support his claim of pain, he was only required to lose three days work.
Therefore, we are of the opinion that the trial judge did not abuse his discretion in permitting the plaintiff to recover $750.00 for personal injuries, which award is in conformity with our recent jurisprudence.[2]
Plaintiff secondly asserts that the trial judge erred in failing to permit him to recover the damages incurred by his vehicle which were caused by the collision.
We are convinced that the trial court very properly refused to render a judgment for the property damage since the plaintiff failed to prove the amount thereof. He did not have his car repaired after the accident, but he obtained two estimates therefor from local garages, the lowest of which was for the sum of $204.41. Instead of offering the testimony of those who prepared the estimates, plaintiff sought to establish his property damage by simply introducing in evidence both estimates. Clearly this is insufficient.
However, in view of the fact that the record reflects that the plaintiff's vehicle was actually damaged to some extent, in the interest of justice, we think this aspect of the case should be remanded in order to afford the plaintiff another opportunity to properly prove his property damage with that certainty required by law.[3]
Finally, plaintiff insists that the trial court erred in refusing to award an expert fee of $100.00 to Dr. Grunsten, in view of the fact that expert opinions were elicited from him. The record fails to support *859 this contention. Instead, it reveals that Dr. Grunsten simply testified to facts which he became aware of in his capacity as the treating physician.[4] Thus there exists no error in the trial court's ruling in this respect.
For the reasons assigned the judgment appealed from is affirmed, and it is now ordered that this matter be remanded to afford plaintiff an opportunity to adduce evidence to prove his claim for property damage with that certainty required by law.
Plaintiff is to pay all costs of this appeal.
Affirmed and remanded.
NOTES
[1] This figure breaks down as follows:
Personal injuries $750.00
Special damages $197.00
_______
$947.00
[2] Mehlsen v. Louisiana Southern Railway Co., La.App., 148 So. 2d 473; Baturo v. The Employers' Liability Assurance Corporation, La.App., 149 So. 2d 627.
[3] Defiore v. Zar, La.App., 106 So. 2d 126 (1958).
[4] Delpido v. Colony, La.App., 52 So. 2d 720. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619632/ | 221 Wis. 2d 610 (1998)
585 N.W.2d 585
IN the MATTER OF the MEDICAL INCAPACITY PROCEEDINGS AGAINST Nancy A. SCHLIEVE, Attorney at Law.[]
No. 97-3862-D.
Supreme Court of Wisconsin.
Filed October 15, 1998.
¶ 1. PER CURIAM.
We review the recommendation of the referee that the license of Nancy A. Schlieve to practice law in Wisconsin be suspended indefinitely for reasons of her medical incapacity. The referee made findings of fact in respect to Attorney *611 Schlieve's conduct in three matters and in respect to her compliance with conditions the court imposed on her license in a prior proceeding and concluded that her medical incapacity substantially prevents her from performing her profession to acceptable professional standards and presents a danger to her clients and to the public.
¶ 2. We determine that the seriousness of Attorney Schlieve's conduct established in this proceeding and its relation to her alcoholism require the indefinite suspension of her license to practice law until such time as she establishes that she no longer has a medical incapacity that interferes with her practice of law and presents a danger to clients, the courts, and the public.
¶ 3. Attorney Schlieve was admitted to practice law in Wisconsin in 1990 and practices in the Eau Claire area. On September 12, 1997, the court imposed conditions on her practice of law directed toward her rehabilitation from alcoholism. Medical Incapacity Proceedings Against Schlieve, Case No. 96-3390-D. When it filed the petition in the instant proceeding, the Board of Attorneys Professional Responsibility (Board) moved that Attorney Schlieve's license be suspended temporarily pending disposition of the proceeding. When she did not respond to the order to show cause issued on that motion, the court, by order of March 11, 1998, suspended Attorney Schlieve's license to practice law pending disposition of this proceeding.
¶ 4. Attorney Schlieve was personally served with the petition in this proceeding but did not file a responsive pleading or otherwise appear. The referee then had a hearing on the Board's motion for default judgment, at which Attorney Schlieve did not appear, *612 and made findings and conclusions based on the petition.
¶ 5. In May, 1996, Attorney Schlieve was appointed by the State Public Defender to represent a client. The following August that client told the judge presiding in her case that Attorney Schlieve had failed to inform her of the date scheduled for a motion hearing and the date scheduled for another court hearing and that she first became aware of those scheduled hearings after learning that bench warrants had been issued for her arrest. The court appointed other counsel to represent that client. Responding to the Board in that matter, Attorney Schlieve asserted that she kept in contact with the client and informed her of all court dates by telephone and by letter. Subsequently, the circuit judge assigned to the matter told the Board that it appeared from Attorney Schlieve's correspondence, his review of his clerk's notes, and his own recollection that Attorney Schlieve may have attempted to mislead the court regarding her contacts with the client.
¶ 6. In a second matter, a client retained Attorney Schlieve in the spring of 1996 to represent him in a criminal proceeding. When he was unable to reach Attorney Schlieve, he appeared for his status conference in that matter with a lawyer assigned by the State Public Defender. Attorney Schlieve failed to appear for a subsequently scheduled status conference, despite having been informed of it and of the court's practice of canceling a jury trial if the defendant's counsel failed to appear at a status conference. The court then rescheduled the status conference and notified Attorney Schlieve that she had either to withdraw as the client's counsel or to appear at that conference and that in the event of her failure to do either, she would be held in contempt. Attorney Schlieve failed to appear at the *613 conference, and the court informed her that it considered her to be in contempt but gave her one final opportunity either to withdraw as the defendant's counsel or appear for a subsequently scheduled status conference. Attorney Schlieve did not appear at that conference, and the court issued an order to show cause why she should not be dismissed as counsel for the defendant. When Attorney Schlieve did not appear at the hearing on that order to show cause, the court dismissed her as the defendant's counsel.
¶ 7. In a third matter, on the report of an observer, the police issued a citation to Attorney Schlieve for operating a motor vehicle after revocation-second offense. A criminal complaint subsequently was filed, which included a charge of knowingly obstructing an officer by misrepresenting her whereabouts on the date in question. In November, 1996, one month after that complaint was filed, a similar complaint was filed in a neighboring county, which included a charge of obstruction based on Attorney Schlieve's initially having given the police officer her name as "Amy C. Schlieve."
¶ 8. In May, 1997, at a trial on charges of operating a motor vehicle after revocation and obstructing an officer, after final arguments were presented, Attorney Schlieve left the courthouse while the jury was deliberating. When she returned to hear the jury's guilty verdict, it was apparent she had been consuming alcohol. The bailiff detected a strong smell of alcoholic beverage when he escorted Attorney Schlieve to the clerk's office and then to the jail, and he immediately instructed her to report to her probation officer. During the investigation of these matters undertaken by the district professional responsibility committee, and after a number of postponements and reschedulings, *614 Attorney Schlieve did not appear. The committee was informed that Attorney Schlieve would be admitted to an alcohol treatment facility for an inpatient treatment program.
¶ 9. In addition, Attorney Schlieve did not respond to the requests of the Board's administrator for proof of her compliance with several of the conditions we imposed on her license to practice law September 12, 1997, including attendance at outpatient alcohol dependency counseling sessions, random urine or blood screening, and attendance at recovery support group meetings. Attorney Schlieve also did not respond to a subsequent letter from the administrator informing her of her need to do so.
¶ 10. We adopt the referee's findings of fact and conclusions of law and determine that Attorney Schlieve's license to practice law must be suspended indefinitely until such time as she establishes to the satisfaction of the court that she no longer suffers a medical incapacity that interferes with her practice of law. We also require Attorney Schlieve to pay the costs of this proceeding, as the referee recommended.
¶ 11. IT IS ORDERED that the license of Nancy A. Schlieve to practice law in Wisconsin is suspended for an indefinite period, commencing the date of this order and until further order of the court.
¶ 12. IT IS FURTHER ORDERED that within 60 days of the date of this order, Nancy A. Schlieve pay to the Board of Attorneys Professional Responsibility the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of her inability to pay the costs within that time, the license of Nancy A. Schlieve to practice law in Wisconsin shall remain suspended until further order of the court.
*615 ¶ 13. IT IS FURTHER ORDERED that Nancy A. Schlieve comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law has been suspended.
NOTES
[] Motion for reconsideration filed October 30, 1998. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619635/ | 152 So. 2d 235 (1963)
Miss Margie Rutledge BURTON
v.
LUMBERMENS MUTUAL CASUALTY COMPANY and The Ohio Casualty Insurance Company.
No. 946.
Court of Appeal of Louisiana, Fourth Circuit.
April 1, 1963.
Rehearing Denied May 6, 1963.
Certiorari Refused June 28, 1963.
Hammett, Leake & Hammett, New Orleans, for Lumbermens Mutual Casualty Company, defendant and appellant.
Henican, James & Cleveland, C. Ellis Henican, Jr., New Orleans, for Miss Margie Rutledge Burton, plaintiff and appellee.
Porteous & Johnson, William A. Porteous, Jr., Benjamin C. Toledano, New Orleans, for The Ohio Casualty Insurance Company, defendant and appellee.
Before REGAN, YARRUT and CHASEZ, JJ.
*236 REGAN, Judge.
Plaintiff, Margie R. Burton, was involved in an automobile accident near Lumberton, Mississippi and as a result thereof, she was named defendant in a personal injury action instituted in a federal district court of Mississippi by Mr. and Mrs. Roe who alleged that their injuries resulted from her negligence. When this accident occurred, plaintiff insists that she was driving a vehicle which she had acquired in New Orleans from Charles Landreth with the understanding that she would purchase the car from him if she was satisfied with its general performance after she reached her home in North Carolina. Plaintiff has instituted this suit requesting the rendition of a declaratory judgment to determine whether Landreth's insurer, Lumbermens Mutual Casualty Company, or her own insurer, The Ohio Casualty Insurance Company, is responsible for providing a defense on her behalf to the suit filed by Mr. and Mrs. Roe in the federal district court in Mississippi. Plaintiff further prayed for the recovery of costs and attorney's fees expended by her in the prosecution of this suit.
Defendant, The Ohio Insurance Company, answered and asserted that the vehicle operated by the plaintiff was actually owned by Charles Landreth; therefore, under the terms of the policy issued by Lumbermens Mutual Casualty Company, Landreth's insurer, plaintiff was an "additional insured", and Lumbermens was primarily liable to provide the defense to the suit in Mississippi and to respond to any judgment rendered, the amount of which was within the policy limits of Lumbermens' contract of insurance.
Defendant, Lumbermens, answered and denied any liability whatsoever, asserting that plaintiff herein was the actual owner of the vehicle when the accident occurred, since Landreth had transferred to her the title to the vehicle. It therefore maintained that the driver's insured, Ohio Insurance Company, was liable.
From a judgment declaring that Lumbermens Mutual Casualty Company was liable for the defense of the federal court action and to pay the amount of any judgment, within its policy limits, rendered in that suit, and further condemning Lumbermens Mutual to reimburse Ohio Casualty Insurance Company for costs and attorney's fees incurred to date in defending the federal court suit, Lumbermens has prosecuted this appeal. Plaintiff has answered the appeal, insisting that it is frivolous and has been prosecuted merely for the purpose of delay; therefore, this court should impose penalties therefor against the defendant cast.
The record reveals that in July of 1960, plaintiff, a piano teacher who resided in Reedsville, North Carolina, came to New Orleans to visit Mr. and Mrs. Charles Landreth, who had been very close friends of hers for many years. At the time of this visit, Landreth, a vice-president of the Sealtest Corporation, was planning to assume a similar executive position with the Carling Brewing Company, which would require him to reside in Atlanta, Georgia.
In the course of plaintiff's visit, the Landreths discussed in her presence their impending move to Atlanta, and also a desire to sell their two cars, one of which was a 1955 Oldsmobile. During this discussion plaintiff learned that they were asking $950 for the vehicle, and she expressed an interest in the purchase thereof. Landreth endeavored to dissuade her by emphasizing that the vehicle was five years old. He did not wish to feel responsible to her if the automobile, then in good condtion, subsequently developed defects which may usually be anticipated in a car of that age.
Plaintiff nevertheless persisted in her desire to buy the vehicle since the price was attractive, and finally she and Landreth agreed that she could drive the vehicle to her home in North Carolina and then decide if she wished to retain the car. This arrangement was agreed to so that the plaintiff, in actually driving the vehicle, *237 would possess an opportunity to observe the gasoline and oil consumption thereof and to generally evaluate its over-all performance. The Landreths, in addition to discussing the sale of the car, were also discussing the expenses involved in connection with their change of residence to Atlanta, and at this point plaintiff advanced $150 on account of the purchase thereof. It was then agreed that if she desired to retain the vehicle, she would pay Landreth an additional $800 and if she did not want it, he would return the amount which she had advanced.
If it so happened that plaintiff desired to return the car, the Landreths, in any event, had already planned to visit relatives in the general vicinity of plaintiff's home in North Carolina, at which time they could easily pick the vehicle up; the arrangement would then be that Mrs. Landreth would drive the rejected vehicle back to Atlanta, and Landreth would follow in their other car, or vice versa.
Landreth, who obtained insurance on his personal automobile through his employer, the Sealtest Corporation, testified that he spoke with Howard Mitchler, an employee of Sealtest who handled insurance matters for the company and its employees, and was assured by him that the plaintiff would be covered under his policy when she drove the car to North Carolina.
On August 1, 1960, Landreth transferred his Louisiana certificate of title to the plaintiff and gave her the document. This was done, he explained, so that she would not encounter any difficulty in driving an automobile for which she possessed no proof of ownership or apparent authority to drive, and also to facilitate transfer of title in North Carolina in the event she decided to retain the vehicle.
That same day she drove away from New Orleans in the Oldsmobile and was later involved in an accident near Lumberton, Mississippi. She telephoned the Landreths, who drove to Lumberton that same day to bring her back to their home in New Orleans, where more extensive medical treatment was available.
Landreth also notified his insurer of the accident on the day it occurred. A telephone report form prepared by one of Lumbermens' agents read:
"Description of AccidentInsured's (Landreth's) car driven by Margie Burton (intended buyer), was on highway 11 * * *." (First parenthesized material ours.)
Predicated on the foregoing evidence, the trial court reasoned that the vehicle, when the accident occurred, was owned by Landreth since the full agreement between plaintiff and the owner revealed that she would signify her acceptance or rejection of the offer of sale only after she had test driven the vehicle. Therefore, the owner's insurer was primarily liable under the "Omnibus Clause" contained in the policy.
Counsel for Lumbermens asserts that a completed contract of sale is evidenced by the transfer of title to plaintiff, signed by Landreth, the pertinent part of which reads:
"For value received, I/we hereby assign, transfer and convey unto Miss Margie Burton * * * the motor vehicle described on the reverse side hereof * * *."
Counsel argues that parol evidence cannot be introduced to vary the terms of this written contract of sale, and cites in support thereof LSA-C.C. 2276, which reads:
"Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since."
We are of the opinion that this contention is without merit, because the written instrument does not fully incorporate the terms of the contract entered into between the parties. It does not recite the consideration *238 to be paid for the vehicle, nor does it contain evidence in itself of the acceptance thereof on the part of the vendee.
In Burk v. Livingston Parish School Board,[1] the organ for the Supreme Court, in discussing the parol evidence rule, quoted the following paragraphs and made them part of the ratio decidendi of its decision.
"In 20 American Jurisprudence, Evidence, Sec. 1106, we find the following language:
"`There may be writings relating to the contract between the parties which do not embody the contract itself. In such a case, where the contract rests upon an oral agreement, parol evidence is admissible as to the terms of the contract notwithstanding the writings.
"`Before the rule that no parol evidence can be received to vary the stipulations of a writing alleged to be a contract between the parties to a cause on trial can apply, the writing must be shown to be their contract. An unaccepted written statement by one party to an oral contract, stating his version of the agreement, does not reduce the contract to writing in favor of the other person so as to preclude the writer from giving oral evidence of the terms of the contract.'"
We are of the opinion that the document counsel relies on to exclude parol evidence is not in fact the contract; therefore, parol is admissible to establish the actual agreement existing between the parties.
We are impressed by the witnesses who appeared herein, and are convinced that they testified truthfully to the effect that the plaintiff possessed the opportunity to test drive the vehicle from New Orleans to North Carolina before the sale would be consummated. This testimony is substantiated by the fact that Landreth telephoned Mitchler, an employee who handled insurance for Sealtest, to make sure that this vehicle would be fully insured in the course of being driven to North Carolina; and in addition thereto, by the fact that Landreth on the day of the accident related to his insurer when he reported the collision that he was the owner and that the plaintiff was the "intended buyer".
The agreement between plaintiff and Landreth therefore did not mature into a sale before the accident occurred since the plaintiff had never accepted the vehicle. The right to later signify acceptance after testing the object of the sale is specifically authorized by virtue of the rationale appearing in LSA-C.C. 2460, which reads:
"Things, of which the buyer reserves to himself the view and trial, although the price be agreed on, are not sold, until the buyer be satisfied with the trial, which is a kind of suspensive condition of the sale."
Since we are of the opinion that Landreth owned the car when the accident occurred, we necessarily conclude that the trial court properly determined that Lumbermens Mutual Casualty Company was obligated to defend the Mississippi action, and is liable for any judgment rendered therein within the monetary limits of its contract of insurance.
Defendant Lumbermens' final specification of error was that the trial court assessed them with attorney's fees and costs incurred by plaintiff's insurer, The Ohio Casualty Company, in defending the federal litigation to date. At this point it should be mentioned that plaintiff herein was found negligent after a trial in the federal court of Mississippi; however, a new trial has been granted therein, limiting the litigants to re-try the issue of quantum. A judgment for $15,000 was rendered against the plaintiff as a result of the first trial.
In effect, the trial court has rendered a money judgment in ordering *239 Lumbermens to reimburse plaintiff's insurer for the costs incurred in litigating the suit in Mississippi. We do not believe that the scope of the declaratory judgment act encompasses the authority to render money judgments in view of the rationale of LSA-C.C.P. Art. 1871 which provides in part:
"Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. * * *"
And LSA-C.C.P. Art. 1878 provides in part:
"Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application is considered sufficient, the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith."
While this judgment in determining which insurer is primarily liable, may later form the basis of an action to recover attorney's fees, etc. we do not think that the relief was properly granted in this suit for a declaratory judgment. But, assuming arguendo that a monetary judgment could be rendered herein, there is absolutely nothing in the record to establish any liability on the part of Lumbermens to plaintiff's insurer, or which reveals that the plaintiff's insurer was not obligated by the terms of its policy to provide a defense for the plaintiff.
From the foregoing discussion, it is quite obvious that the plaintiff's request for the imposition of penalties for the prosecution of a frivolous appeal by the defendant is wholly without merit, since very serious legal issues were posed for our consideration and resolution.
For the reasons assigned, the judgment appealed from is reversed insofar as it awards the plaintiffs, Margie Burton and The Ohio Casualty Company, costs and attorney's fees expended in defense of the federal court action against Lumbermens Mutual Casualty Company; in all other respects, the judgment appealed from is affirmed. Each litigant should bear its own costs of this appeal.
Reversed in part, affirmed in part.
NOTES
[1] 215 La. 143, 39 So. 2d 891. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619636/ | 585 N.W.2d 278 (1998)
Susan HOWELL, Appellant,
v.
MERRITT COMPANY, Appellee.
No. 97-323.
Supreme Court of Iowa.
October 21, 1998.
*279 Curt Krull, Des Moines, for appellant.
J.D. Hartung of the Crawford Law Firm, Des Moines, for appellee.
Considered by McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and TERNUS, JJ.
PER CURIAM.
The plaintiff appeals from the district court order granting the defendant's motion for summary judgment on her discriminatory discharge claim based upon a perceived disability. She claims the district court erred in finding (1) Iowa law does not recognize perceived disability claims, and (2) she failed to produce any evidence to rebut the defendant's nondiscriminatory reason for her discharge. We agree, and reverse and remand for further proceedings.
I. Factual Background and Prior Proceedings.
On April 25, 1994, the defendant, Merritt Company, hired the plaintiff, Susan Howell, to clean houses. Merritt discharged Howell on April 28 after only 12.5 hours of work. Howell filed a discriminatory discharge complaint with the Iowa Civil Rights Commission and received a right-to-sue letter. She then filed a petition against Merritt under the Americans with Disabilities Act (ADA) and the Iowa Civil Rights Act (ICRA). Howell claimed Merritt discharged her based upon a disability or upon a perception that she had a disability. She specifically alleged she was discharged the day after she wore a TENS unit[1] to work. According to Howell, Merritt gave the following reasons for her discharge: (1) her back condition would prevent her from doing her job; (2) her back condition was too much of a liability for the company; and (3) the company's customers would be embarrassed to have Howell work in their homes with a TENS unit.
Merritt filed a motion for summary judgment alleging it was not covered by the ADA because it only employed thirteen persons[2] at the time of the incident, and Howell was not a disabled person under the ICRA. Merritt argued Howell was discharged due to poor performance and complaints from customers.
Howell filed a resistance to the motion, conceding the ADA did not apply to her case. She asserted, however, there were genuine issues of material fact regarding her claim under the ICRA because she was terminated for her disability or perceived disability and not for poor performance.
The district court granted Merritt's motion for summary judgment. It found there was no evidence to show Howell had any physical or mental impairments. The court also stated Iowa law does not recognize perceived disability claims, citing Annear v. State, 454 N.W.2d 869 (Iowa 1990). The court rejected Howell's suggestion that Annear should be overruled in light of federal precedent interpreting analogous provisions of the ADA. It further concluded summary judgment was appropriate because Howell failed to rebut Merritt's nondiscriminatory reason for her dischargeher poor performance.
Howell appeals. She concedes she does not have an actual disability, but alleges Merritt improperly terminated her due to a perceived disability. She urges us to re-examine Annear and determine Iowa law recognizes such claims. Howell further asserts *280 the district court erred in ruling, as a matter of law, that she did not rebut Merritt's proffered nondiscriminatory reason for the termination.
II. Standard and Scope of Review.
We review a summary judgment ruling for correction of errors of law. Shriver v. City of Okoboji, 567 N.W.2d 397, 400 (Iowa 1997). Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. We will review the record before the district court to determine whether an issue of material fact exists, and if not, whether the district court properly applied the law. Id. The record includes the pleadings, motion for summary judgment, resistance, affidavits, and exhibits. Porter v. Good Eavespouting, 505 N.W.2d 178, 182 (Iowa 1993). The facts are reviewed in the light most favorable to the nonmoving party. Shriver, 567 N.W.2d at 400. A factual dispute precludes summary judgment only when the dispute is over facts that would affect the outcome of the suit. Id.
III. Perceived Disability Claim.
Howell claims the ICRA protects an employee discharged based upon a perceived disability.
Our civil rights act prohibits "the discharge of any employee because of the employee's disability, unless the discharge was based upon the nature of the occupation." Henkel Corp. v. Iowa Civil Rights Comm'n, 471 N.W.2d 806, 809 (Iowa 1991); accord Iowa Code § 216.6(1)(a) (1995). Pursuant to Iowa Code section 216.2(5), disability means "the physical or mental condition of a person which constitutes a substantial handicap." The administrative rules define a "substantially handicapped person" as "any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment." Iowa Admin. Code r. 161-8.26(1) (emphasis added). Iowa Administrative Code rule 161-8.26(5) defines "is regarded as having an impairment" to include individuals perceived as having a mental or physical impairment.[3]
We have looked to the ADA and cases interpreting its language when considering disability discrimination claims under our civil rights act because of the similarity of legal principles and analytical framework. See Fuller v. Iowa Dep't of Human Servs., 576 N.W.2d 324, 329 (Iowa 1998); Bearshield v. John Morrell & Co., 570 N.W.2d 915, 918 (Iowa 1997). We did not have the benefit of the guidance of the ADA in Annear, as Annear was decided prior to the ADA's enactment.
Under the ADA, the term "disability" specifically embraces individuals regarded as having mental or physical impairments. See 42 U.S.C. § 12102 (1995). Accordingly, the federal courts have recognized discrimination claims based upon perceived disabilities. See Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir.1995). Our statutory definition of "disability" is similar, see Bearshield, 570 N.W.2d at 918, and our administrative rule 161-8.26(1), which encompasses perceived disabilities within the definition of "substantially handicapped person," essentially mirrors the ADA's definition of "disability." Compare Iowa Admin. Code r. 161-8.26(1) with 42 U.S.C. § 12102(2).
Although we agree with the conclusion of the district court that Annear should not be overruled, we believe that the court misinterpreted the extent to which Annear rejected the concept of perceived disability. There is no indication in that decision that perceived disability as such is an unwarranted extension of our disability discrimination laws. As *281 we subsequently recognized in Bearshield, 570 N.W.2d at 922-23, there are strong public policy reasons for recognizing perceived disability claims. Inclusion of such claims under our civil rights act prevents adverse employment consequences based upon prejudices, ignorance, and stereotypes regardless of whether the individual has an actual physical or mental disability.[4]
Our opinion in Annear only identified one situation that we concluded bears no relationship to the purposes of the perceived disability doctrine. The situation to which Annear spoke was a disagreement between the employer and the employee as to whether a particular injury had healed sufficiently to enable the employee to return to work. Annear held that, if the employer makes an ad hoc decision based on circumstances relating to the particular injury, it may not be found guilty of disability discrimination simply because its decision was demonstrably wrong.
We continue to agree with our Annear holding because the employer's decision in that case was based on an individualized assessment and in no way rested on myths, fears, or stereotypes, the situations at which the perceived disability doctrine is aimed. See Bearshield, 570 N.W.2d at 923 (holding ICRA generally requires an "individualized assessment" of the employee's ability to perform the job). In the present case, however, a fact finder could determine, based on the matters presented to the district court in deciding the summary judgment motion, that Merritt's decision to terminate Howell was based in part on a perception of disability associated with her use of the TENS device. That justification does suggest a reliance on stereotypes rather than an ad hoc evaluation of Howell's physical condition.
IV. Nondiscriminatory Reason for Howell's Termination.
The district court alternatively granted Merritt summary judgment because it determined, as a matter of law, that Howell did not rebut Merritt's nondiscriminatory reason for her terminationher poor performance. We disagree.
In her petition, Howell claimed Merritt informed her she was terminated because she could not perform the job due to her back injury, her disability was a liability for the company, and its customers would be embarrassed by her TENS unit. These allegations, combined with (1) the proximity in time between Howell wearing the TENS unit and her discharge (one day), and (2) the extremely short period of employment used by Merritt to judge her overall performance (12.5 hours), generate factual issues that directly impact the outcome of this case. In viewing the evidence in the light most favorable to Howell, a reasonable jury could infer Merritt discharged Howell based upon a perceived disability. Disposition by summary judgment was therefore inappropriate.
V. Disposition.
We reverse the district court ruling granting the defendant summary judgment and remand for further proceedings. The defendant's request for attorney fees and costs is denied.
REVERSED AND REMANDED.
NOTES
[1] A TENS unit is a battery-operated medical device used to alleviate chronic back spasms and headaches.
[2] The ADA covers employers with at least 15 employees. See 42 U.S.C. § 12111 (1995).
[3] This rule provides:
The term "is regarded as having an impairment" means:
a. Has a physical or mental impairment that does not substantially limit major life activities but that is perceived as constituting such a limitation;
b. Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
c. Has none of the impairments defined to be "physical or mental impairments," but is perceived as having such an impairment.
(Emphasis added.)
[4] We note that other jurisdictions acknowledge perceived disability claims under their respective state laws. See Bogue v. Better-Bilt Aluminum Co., 179 Ariz. 22, 875 P.2d 1327 (Ariz.Ct.App. 1994); Colorado Civil Rights Comm'n v. North Washington Fire Protection Dist., 772 P.2d 70 (Colo.1989); Cook v. Atoma Int'l of Am., Inc., 930 S.W.2d 43 (Mo.Ct.App.1996); Primeaux v. Conoco, Inc., 961 S.W.2d 401 (Tex.App.1997); Barnes v. Washington Natural Gas Co., 22 Wash.App. 576, 591 P.2d 461 (Wash.Ct.App.1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1299417/ | 578 N.W.2d 802 (1998)
Marilyn RAHMAN, individually, and as Personal Representative of the Estate of Christopher Rahman, Appellant,
v.
The MAYO CLINIC, et al., Respondents.
No. C4-97-2200.
Court of Appeals of Minnesota.
May 26, 1998.
Review Denied July 30, 1998.
*803 Charles T. Hvass, Jr., Hvass Weisman & King, Chartered, Minneapolis, and Mark G. Stephenson, Stephenson & Sutcliffe, P.A., Rochester, for appellant.
Leo G. Stern, Robin L. Preble, Fredrikson & Byron, P.A., Minneapolis, (Ann E. Decker, Rochester, of counsel), for respondents.
Considered and decided by HUSPENI, P.J., and SHORT and WILLIS, JJ.
OPINION
SHORT, Judge.
Marilyn Rahman brought suit against The Mayo Clinic after discovering it had retained her deceased son's pelvic block. On appeal from a grant of summary judgment in favor of the Clinic, Rahman argues the trial court erred in granting summary judgment under the Uniform Anatomical Gift Act's (UAGA) good faith immunity provision, Minn.Stat. § 525.9221(c) (1996).
FACTS
On March 17, 1994, Christopher Rahman (the decedent) was admitted to Saint Mary's Hospital, as the result of a self-inflicted gunshot wound to the head. The decedent was placed in the intensive care unit, where he was treated by Dr. Marc Goldman (treating physician), the chief resident associate of the Clinic's neurosurgery department. The following day, the treating physician determined the decedent's neurologic condition was "very poor" and concluded the gunshot wound would prove fatal. The treating physician informed the decedent's mother, Marilyn Rahman (Rahman), of his prognosis and that she had a right to make a donation of organs and tissue pursuant to the Uniform Anatomical Gift Act (UAGA), Minn.Stat. § 525.9214(a) (1996). Elizabeth Gayner, an employee of Life Source, a tissue and organ procurement agency, also spoke with Rahman at the Clinic to explain organ and tissue donation.
That same day, the decedent was declared brain-dead. Rahman again spoke with the treating physician and agreed to make a donation of organs and tissue. Rahman and the treating physician completed part of the organ donation permission form, which stated:
Permission is granted for organ or tissue donation for transplantation, research or education purposes (subject to restrictions indicated below) ____ Yes ____ No.
Restrictions:
The treating physican checked the "yes" box, wrote "none" on the restrictions line, and signed the form and placed it back into the decedent's medical charts. Rahman told the treating physician that she did not want a postmortem examination.
Subsequently, Rahman had a second conversation with Gayner. Rahman told Gayner that the decedent's organs were not to be used for medical research or education. Based on this conversation, Gayner wrote "no research" above the restriction area and *804 added the phrase "heart, heart for valve, lungs, liver, pancreas, Kidneys, long bones of lower extremities" to the restrictions line on the original organ donation permission form. Gayner failed to write "no education purposes" on the form. The treating physician was not present during Gayner's second conversation with Rahman, was unaware of Rahman's intentions to impose restrictions, and did not see the revised permission form.
After some of the decedent's organs were harvested for transplant purposes, the body was taken to an autopsy suite. Despite Rahman's objections, the coroner ordered an autopsy pursuant to Minn.Stat. § 390.11, subd. 2 (1996), due to the violent nature of the decedent's death. An autopsy was performed by a Clinic pathologist and pathology resident. As a standard part of the autopsy procedure, the decedent's pelvic block, which consists of the prostate, seminal vesicles, urinary bladder, and rectum, was removed and examined. The pathologist, who had read a copy of the revised organ donation permission form prior to performing the autopsy, decided to retain the pelvic block for educational use in the Mayo Medical School. The pelvic block, which would eventually be mounted in Plexiglass for use in the medical school, was placed into a container with fixative fluid for preservation and kept in a locked storage room, known as the "museum," at the Clinic.
Shortly thereafter, Rahman brought an unrelated suit against the decedent's life insurance carrier regarding death benefits. This suit was settled. During a review of her attorney's files, Rahman read that the decedent's urinary bladder, prostate, and seminal vesicles had been "preserved with [his] pelvic block for [the] museum." Rahman retained new counsel, who contacted the Clinic and discussed Rahman's concerns. The Clinic informed Rahman's counsel the pelvic block had not yet been used for research or educational purposes, and sought further instructions. Rahman commenced this lawsuit against the Clinic, Mayo Foundation, Mayo Group Practices, Mayo Foundation for Medical Education and Research, and Mayo Medical Services, Ltd. (collectively "the Clinic"), alleging it: (1) violated the UAGA, Minn.Stat. § 525.9212 (1996); (2) intentionally, recklessly, or negligently removed, withheld, mutilated, or operated upon the decedent's body; and (3) intentionally or unintentionally caused Rahman emotional distress.
ISSUE
Did Rahman present any evidence to defeat the Clinic's claim it acted in good faith under the UAGA?
ANALYSIS
On appeal from a grant of summary judgment, we must determine whether any genuine issues of material fact exist and whether the trial court erred in applying the law. Minn. R. Civ. P. 56.03; State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). While we view the evidence in the light most favorable to the nonmoving party, the nonmovant must produce specific facts to create an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). We need not defer to the trial court's decision on purely legal issues. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984).
Minnesota has adopted, without substantial modification, the UAGA. See Minn.Stat. §§ 525.921-.9224 (1996) (providing method of making anatomical gifts). The UAGA
establishes a statutory scheme which outlines the means of effecting an anatomical gift, the classes of individuals entitled to effect such a gift, and the circumstances under which such a gift must be deemed null and void.
Nicoletta v. Rochester Eye & Human Parts Bank, Inc., 136 Misc.2d 1065, 519 N.Y.S.2d 928, 931 (N.Y.Sup.Ct.1987). The UAGA was enacted in response to the need for more family donations of organs and to the medical profession's uncertainty about whose consent was necessary for donations. Perry v. Saint Francis Hosp. & Med. Ctr., 886 F.Supp. 1551, 1557 (D.Kan.1995); see Unif. Anatomical Gift Act (1968) Prefatory Note, 8A U.L.A. 64-65 (1993) (recognizing need for comprehensive act addressing organ donation and concluding UAGA, wherever enacted, will eliminate uncertainty and protect all parties); see also Gloria J. Banks, Legal and Ethical *805 Safeguards: Protection of Society's Most Vulnerable Participants in a Commercialized Organ Transplantation System, 21 Am. J.L. & Med. 45, 67 (1995) (stating UAGA amended in 1987 to better address issues, such as concern over providing "encouraged volunteerism" system with teeth needed to increase supply of transplantable organs); E. Blythe Stason, The Uniform Anatomical Gift Act, 23 Bus. Law 919, 921-24 (1968) (recognizing legal uncertainties of organ donation laws during pre-UAGA era as providing major basis for adoption of model act).
In furtherance of its goals, the UAGA provides, in pertinent part:
(a) If, at or near the time of death of a patient, there is no documentation in the medical record that the patient has made or refused to make an anatomical gift, the hospital administrator or a representative designated by the administrator shall discuss with the patient or a relative of the patient the option to make or refuse to make an anatomical gift and may request the making of an anatomical gift pursuant to section 525.9211 or 525.9212. The request must be made with reasonable discretion and sensitivity to the circumstances of the family. * * * An entry must be made in the medical record of the patient, stating the name of the individual making the request, and the name, response, and relationship to the patient of the person to whom the request was made
Minn.Stat. § 525.9214(a). The UAGA further provides:
An anatomical gift by a person authorized * * * must be made by (i) a document of gift signed by the person, or (ii) the person's telegraphic, recorded telephonic, or other recorded message, or other form of communication from the person that is contemporaneously reduced to writing and signed by the recipient.
Minn.Stat. § 525.9212(c).
The Clinic moved for summary judgment arguing: (1) it had permission to retain the decedent's pelvic block for educational purposes, and in the alternative; (2) it was immune from liability under the UAGA's good faith immunity provision. In granting the Clinic's motion, the trial court concluded Rahman "failed to provide any evidence that the [Clinic] acted in deliberate contravention of [Rahman's] wishes." (Emphasis in original.) We are asked whether the Clinic's actions fall within the UAGA's good faith immunity provision.
The UAGA insulates individuals involved in the organ procurement process from civil and criminal liability, so long as they act in good faith. See Minn.Stat. § 525.9221(c) (providing hospital or person, acting in accordance with UAGA or with applicable anatomical gift law of another state or foreign country or attempting in good faith to do so, is not liable for that act in civil action or criminal proceeding). That statute provides immunity from suit, not simply a defense to liability. Cf. Mjolsness v. Riley, 524 N.W.2d 528, 530 (Minn.App.1994) (concluding Minnesota's Civil Commitment Act, which provides all persons acting in good faith pursuant to Act are not subject to any civil or criminal liability, provided complete immunity from suit, not simply defense to liability). Whether actions constitute good faith is a question of law, properly resolved on summary judgment. Cf. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (concluding because qualified immunity was an immunity from suit rather than mere defense to liability, it is appropriately resolved at summary judgment phase); see, e.g., Kelly-Nevils v. Detroit Receiving Hosp., 207 Mich.App. 410, 526 N.W.2d 15, 19 (1995) (holding question of good faith under UAGA properly matter of law for court); Nicoletta, 519 N.Y.S.2d at 931 (concluding issue of whether hospital acted in good faith question of law appropriate for review on summary judgment); Brown v. Delaware Valley Transplant Program, 420 Pa.Super. 84, 615 A.2d 1379, 1383 (1992) (quoting Nicoletta and concluding undisputed facts of record establish good faith of hospital as matter of law).
Neither the Minnesota legislature nor Minnesota courts have defined good faith in the context of the UAGA. However, other jurisdictions consistently define this statutory good faith requirement as activity involving an "honest belief, the absence of malice, and the absence of design to defraud or to seek an unconscionable advantage." Henry Campbell Black, et al., Blacks Law Dictionary *806 623 (5th ed. 1979), construed in Perry, 886 F.Supp. at 1558, Lyon v. United States, 843 F.Supp. 531, 533 (D.Minn.1994), Kelly-Nevils, 526 N.W.2d at 20, Nicoletta, 519 N.Y.S.2d at 930. In keeping with the UAGA's goal of providing uniformity among states, we adopt that definition of good faith. See Perry, 886 F. Supp. at 1558 (adopting same general definition of good faith in order to assure uniformity in enforcement and interpretation of UAGA among different states).
Both the treating physician and Gayner discussed organ donation with Rahman. Both completed parts of the organ donation permission form under Rahman's direction. With Gayner, Rahman expressed her desire that the decedent's organs not be used for medical research or education. Thus, the question of the Clinic's immunity turns on whether Rahman's instructions to Gayner are sufficient to negate the Clinic's claim that it acted out of an honest belief, and in the absence of fraud or design to seek an unconscionable advantage.[1]See, e.g., Lyon, 843 F.Supp. at 534 (concluding issue of hospital's good faith turns on whether everyone at hospital relied on signed form or whether hospital arranged for enucleation despite fact someone in authority knew family did not consent).
The undisputed facts are critical to our analysis. Despite Rahman's instruction that the decedent's organs not be used for medical research or education, Gayner only wrote "no research" on the permission form, and "heart, heart for valves, lungs, liver, pancreas, Kidneys, long bones of lower extremities" on the restrictions line. Therefore, the revised organ donation permission form did not prevent the use of organs for educational purposes. The Clinic's pathologist read that form and decided to retain the pelvic block for educational use at the Mayo Clinic School. However, after learning Rahman's true intentions, the Clinic immediately attempted to correct the error.
Viewing the evidence in the light most favorable to Rahman, we conclude Rahman's conversation with Gayner is insufficient to negate the Clinic's claim that it acted in good faith because the Clinic pathologist relied on a facially valid organ donation permission form and, unaware of Rahman's actual wishes, acted out of an honest belief that retention of the decedent's pelvic block was in accordance with those wishes. See Perry, 886 F. Supp. at 1559 (concluding court can find as matter of law that hospital's actions were taken in good faith even when person in authority had actual notice of contrary indications); see also Nicoletta, 519 N.Y. 2d at 931 (concluding Eye Bank entitled to good faith immunity when agent acted in justified reliance on written permission form that complied with requirements of UAGA and plaintiff failed to present any evidence Eye Bank had actual notice of any opposition to gift); see, e.g., Lyon, 843 F. Supp. at 535-36 (concluding hospital entitled to good faith immunity despite one doctor's knowledge of plaintiffs' contrary intentions where hospital employees relied on organ donation form and were unaware of plaintiffs' wishes).
Rahman also argues the good faith immunity provision of the UAGA is inapplicable because the Clinic removed the decedent's pelvic block during an autopsy, after the organ donation process was complete. See Minn.Stat. § 525.9221(c) (providing good faith immunity only to individuals acting in accordance with UAGA). However, the UAGA does not require organs to be harvested before an autopsy is performed; the statute specifically permits harvesting any time after death, and prior to embalming. See Minn.Stat. § 525.9217(a) (providing donee, upon death of donor and before embalming, shall cause body part donated to be removed without unnecessary mutilation); see also Minn.Stat. § 525.9213(a) (providing coroner or medical examiner may release and permit removal of body part within official's *807 custody for transplantation or therapy under certain circumstances). Here, the Clinic's actions were taken pursuant to the UAGA. The Clinic's organ donation permission form, which places no time restrictions on the organ donation process, accompanied the decedent's body to the autopsy suite. The organ donation permission form was relied on by the pathologist, who decided to retain the decedent's pelvic block for educational purposes. Moreover, Rahman's lawsuit is based on her belief that, in retaining the decedent's pelvic block, the Clinic exceeded its authority under the UAGA. Under these circumstances, the UAGA, not the autopsy statute, is controlling. Thus, we conclude the Clinic's retention of the pelvic block after an autopsy does not prevent application of the UAGA's good faith immunity provision.
Rahman finally argues the Clinic may not use its own ambiguous forms to justify exceeding a patient's consent. However, the revised organ donation permission form unambiguously permits retention of organs for educational purposes. Even assuming an ambiguity existed, it would be insufficient to overcome the Clinic's claim of good faith immunity unless Rahman demonstrated the Clinic failed to act out of an honest belief that its actions were in accordance with Rahman's wishes. See, e.g., Perry, 886 F.Supp. at 1559-60 (concluding hospital not entitled to summary judgment based on good faith immunity where there was evidence of conscious or intentional wrongdoing carried out for dishonest purposes or furtive design).
DECISION
Rahman failed to allege any facts that demonstrate the Clinic acted dishonestly, maliciously, fraudulently, or unconscionably. There are no genuine issues of material fact to preclude summary judgment in favor of the Clinic.
Affirmed.
NOTES
[1] Rahman alleges Gayner was a designee of the Clinic because she: (1) spoke with Rahman; (2) completed organ donation forms; and (3) oversaw the organ donation process. See Minn.Stat. § 525.9214(a) (providing hospital administrator or _______ representative designated by administrator shall discuss with patient or relative option to make or refuse to make anatomical gift). Due to the posture of this case, we must assume Gayner is a designee of the Clinic. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (concluding on appeal from grant of summary judgment, court must accept as true factual allegations of nonmoving party). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619638/ | 246 Miss. 846 (1963)
152 So. 2d 911
COLE, et ux.
v.
DELCHAMPS, INC., et al.
No. 42620.
Supreme Court of Mississippi.
May 13, 1963.
Bidwell Adam, Oscar B. Ladner, Gulfport; Forrest B. Jackson, Jackson, for appellants.
*848 Eaton, Cottrell, Galloway & Lang, Morse & Morse, Gulfport, for appellees.
*849 LEE, P.J.
Suit was filed by Marcus W. Cole and wife, Mrs. Marjorie S. Cole, against Delchamps, Inc., and Gerald Coleman, its local manager, in the Circuit Court of Harrison County to recover damages for the death of their four year old son, William Gregory Cole, allegedly caused by the negligence of the defendants. The defendants, in their separate answers, denied each and *850 every material allegation of the declaration, and set up special defenses.
Delchamps, Inc., prior to and on September 19, 1961, operated a supermarket at 243 Porter Avenue in the City of Biloxi. The store building was about 100 feet wide, with four doors, two for entering and two for leaving. Adjacent to the building was a paved parking lot approximately 200 feet wide. Lanes, of a width of 25 feet with arrows pointing the proper directions for use, indicated the manner of entrance and exit for cars. Parking spaces were eight feet wide. There was sufficient area for parking 125 automobiles. About fifteen feet south of the doors was a ride machine, shaped like a small helicopter, operated by a third person for the entertainment of the children of patrons of the store. The charge was 10¢, and it was customarily ridden by only one child at the time. This machine had been in operation for about two years. The plaintiffs, accompanied by their son, had oftentimes been to the store as customers, and on numerous occasions, the little boy had ridden the machine. He was planning to ride again on the day that he was killed.
Mrs. Marjorie S. Cole, the mother, testified that she parked at a northwest angle in the second row from the front of the store; that she opened the door and got out, and her son slid out behind her; that, as she turned to shut the door, he headed for the helicopter; that she reached for him but could not catch him; that she called to him, but he kept going; that she followed and he ran between the rows of cars in front of a car that was headed south; and that just as he stepped from between the parked cars, a car moving at not more than 10 or 15 miles an hour struck him with its left front bumper, knocked him down, ran over him, and killed him.
Everett J. Hebert, twenty-four years of age and a nursing assistant at the Veterans' Administration Center, drove into the parking lot from Cemetery Road *851 and was headed south toward the beach. He said that he was driving about ten miles an hour and did not see the child until after he had struck something. He heard an outcry, stopped the car, and saw the little boy lying in the lane of traffic. He had been to the supermarket on other occasions and had seen many children on the parking lot on those occasions.
Neither of the witnesses saw an officer or watchman or guard, or other persons, directing movement of the traffic on the parking lot, or any warning or cautionary signs concerning traffic or its speed.
At the close of the evidence for the plaintiffs, the court sustained the defendants' requested peremptory instruction to find a verdict for them. From the judgment in accordance with the instruction, the plaintiffs appealed.
The appellants contend that the court erred in directing the jury to find a verdict for the defendants. They argue that the proof showed that the mother did everything possible to prevent her child, who could be guilty of no direct or contributory negligence, from running across a traffic lane which she knew and appreciated to be a place of danger; and that the operator of the car was guilty of no negligence in the manner of his operation of the car which caused the child's death. On the contrary, they say that the failure of the defendant to warn, to signal, to control traffic, to provide guards, and to mark off properly walkways and areas to be used by pedestrians constituted negligence, which was the sole, proximate cause of the death.
(Hn 1) Of course before the defendants can be held in any way answerable for the unfortunate death of this child, it must be shown that they were guilty of negligence proximately causing or contributing thereto. In Clark v. Gilmore, 213 Miss. 590, 57 So. 2d 328, (Hn 2) this Court cited with approval as a good definition of negligence the following statement from 65 C.J.S., *852 Negligence, Sec. 1 (2), p. 304: "Of the numerous definitions of `negligence', among the best has been declared to be `the failure to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.'" In the opinion in the above case, too, there was the following quotation also from 38 Am. Jur., Negligence, par. 2, p. 643, to wit:
"* * * actionable negligence is the failure of one owing a duty to another to do what a reasonable and prudent person would ordinarily have done under the circumstances, or doing what such a person would not have done, which omission or commission is the proximate cause of injury to the other."
(Hn 3) Under their argument, the appellants attach no blame whatever either to the mother or to the operator of the car that ran over the child. Hebert had been to this supermarket many times. He had seen children about the parking lot on all occasions. He was twenty-four years of age and of course knew that it was necessary to exercise care under such circumstances and have his vehicle under control. Arrows pointed out the direction for automobiles to travel. What good would cautionary or warning signs have done him if he was already exercising reasonable care? It is unthinkable that the law would require the appellees to have enough traffic leaders to meet automobiles at the several entrances and walk in front of the vehicles to the parking spaces, which they would occupy, as a shield because of the possibility that some child might dart out from between parked cars into the pathway of moving automobiles; and, in like manner, provide for such a guide to the exits.
The little boy had ridden on the miniature helicopter on many occasions. He was going to ride again that day. His mother knew this. She tried to catch him. *853 She told him to stop. All of this was to no avail. She, more than any other person, naturally had the greatest concern for the safety of her son. In spite of her efforts, he got away from her and darted in front of the moving car to his death. What would a guard, or, for that matter, several guards have accomplished under such circumstances? Unless one perchance had been standing in the child's pathway, the same result might in all probability have happened.
As stated, the evidence showed that the lanes for the cars were clearly marked. Besides, there were sidewalks alongside the store house. The evidence did not justify the application of the unreasonable risk or dangerous trap doctrine found in Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213; 28 Am. Jur., Negligence, Sec. 96, pp. 754-6, cited by appellants. Neither does the attractive nuisance doctrine have any application in this instance.
Besides in Paramount-Richards Theatres v. Price, 211 Miss. 879, 53 So. 2d 21, it was said: "The owner of the premises is not required to anticipate an unusual and improbable result, such as the injury sustained by the plaintiff in this case. The owner is merely required to anticipate a result that is more apt to happen than not to happen, that is to say he must anticipate only such a result as is reasonably foreseeable as a probable consequence of his act. Gulf Refining Co. v. Williams, 183 Miss. 723, 185 So. 234; Louisiana Oil Corp. v. Davis, 172 Miss. 126, 158 So. 792."
In the case of Jackson v. Pike, 87 So. 2d 410, a Florida case, the facts are strikingly similar and the principles are directly in point. There, the six year old child went with his adult brother-in-law in the car to the defendant's supermarket. On the parking area near the entrance to the store was situated a merry-go-round in much the same fashion as the miniature helicopter in the present case. As soon as the car stopped, the boy alighted, darted toward the merry-go-round, and collided with a car *854 traveling five to ten miles an hour. Although injured, fortunately he was not killed. The suit, making substantially the same charge of negligence as was stated in the present case, was filed for damages; and, from a verdict and judgment in his favor, an appeal was prosecuted to the Supreme Court of Florida. In reversing the judgment and holding that the trial court should have granted a directed verdict for the defendants, the opinion said: "The general rule of the measure of duty resting on the owners of parking lots is that the owners or operators, extending an express or implied invitation to the public to use the facilities provided, are under a duty to those taking advantage of the invitation, to use reasonable care to see that the premises are in reasonably safe condition for the intended use. See annotation 14 A.L.R. 784. We think it is a matter of common knowledge that customers of supermarkets are often accompanied by their children who are too young to be left at home alone, and the intended use of a parking facility in connection with such an establishment must necessarily contemplate the presence of children of immature age and experience, a fact which is particularly apparent where, when as here, the supermarket operator provides an amusement device for the particular purpose of accommodating such children; and the measure of what is reasonably safe for such intended use of the premises must take that circumstance into account. * * * We think the undisputed facts of the occurrence of plaintiff's injury affirmatively establish that the efficient cause of plaintiff's injury was the plaintiff's impulsive act in darting in front of the slowly moving vehicle by which he was injured."
It was not shown from the evidence, together with the reasonable inferences therefrom, that the appellees in this case were guilty of any negligence which proximately caused or contributed to the tragic and unfortunate death of this little boy. Manifestly the action of *855 the trial court was correct in granting a directed verdict to find the defendants not guilty, and that action must therefore be affirmed.
Affirmed.
Arrington, Ethridge, McElroy and Rodgers, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619642/ | 152 So. 2d 731 (1963)
Raymond Alexander SCHNEIDER, Appellant,
v.
The STATE of Florida, Appellee.
No. 31840.
Supreme Court of Florida.
April 3, 1963.
Rehearing Denied May 20, 1963.
*732 Blank & Davis, John R. Williams, West Palm Beach, J. Robert McClure, Jr., and Parker, Foster & Madigan, Tallahassee, for appellant.
Richard W. Ervin, Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., for appellee.
THOMAS, Justice.
The trial of Raymond Alexander Schneider on a charge of murder in the first degree culminated in a verdict of guilty without recommendation of mercy, and from the ensuing judgment adjudicating his guilt and sentencing him to death in the electric chair he has appealed to this court.
The appellant was apprehended in Martin County several hours after one Roger S. Hendry was found on a street in Lake Worth, Palm Beach County, with bullet wounds in his head and neck from which he soon died.
The first question posed for our consideration is a challenge of the use at the trial of certain evidence obtained at the time of appellant's arrest when, so he asserts, he was subjected to physical abuse. Elaborating, it is said in appellant's behalf that at the time he was stopped by officers no warrant had issued for his arrest and the "officers had no idea of any offense the accused may have committed." Continuing it is represented that while held at the point of a gun in the dark he was assaulted by one of the officers without reason or provocation.
We go now to the record to ascertain just what had happened. Following an emergency call, a lieutenant of police in Lake Worth went to a designated place nearby where he was met by another police officer and two firemen. An automobile was parked on the curb and in it sat a man, immediately identified as Roger Hendry, who was bleeding freely from a wound in his face. He was sent straightway to a hospital.
The lieutenant stayed in the area for a while interviewing onlookers who had forgathered and might have information about the tragedy, listing their names and directing them to police headquarters. He ordered the car "sealed" to preserve any evidence, such as fingerprints, that might be present.
At the hospital a lead bullet was removed from the victim's head and one was taken from his neck. The first of these was fatal.
After the homicide the appellant appeared in the city of West Palm Beach where he forced his way into a parked car occupied by a man and his woman companion Holding a gun on the man he made him drive some distance to the Jewish synagogue where he soon released the couple with the warning not to report anything to the police. He next approached another car close by occupied also by a man and woman. Displaying a gun he entered the car, then at the entreaty of the man let the woman leave. He forced the man to start driving and after travelling a considerable distance evidently in a northerly direction, he accepted five dollars from the driver, released him and disappeared with the automobile bearing a Massachusetts tag which the driver seemed willing to surrender to put an end to an obviously unpleasant, if not potentially dangerous, episode.
The car was next seen in Martin County, to the north, where it was identified by a deputy sheriff whose radioed request for assistance was answered by another deputy. The two deputies gave chase for five miles *733 at the speed of 85 to 95 miles an hour with sirens sounding and red lights flashing. During the pursuit the appellant by zigzagging forced one of the deputies off the road with the result that this car was wrecked. Another deputy meanwhile joined the chase; after one of the deputies shot three time striking the appellant's car once he was seen to throw out an object, then he stopped. The appellant was immediately `frisked' and handcuffed.
While the deputies and the appellant were standing beside the car, one of the deputies slapped the appellant. The reason for the blow is not too clear but it was testified that it was administered by the deputy whose car had been wrecked by the purposely erratic driving of the appellant. It was this occurrence which the appellant now insists vitiated the arrest and the evidence obtained as an incident to it.
After the apprehension of the appellant the officers found a.22 calibre pistol about 200 yards south of the place where the appellant's and the deputies' cars had come to a halt. When the appellant was subsequently taken to the sheriff's office there was found on his person a receipt showing the purchase by him of the identical weapon from a merchant in Oaklawn, Illinois, and also taken from his was a quantity of .22 calibre cartridges. Not only had the appellant been seen to throw an object from the car but he remarked to the officers that he had done so and was walking back down the highway with them when it was found.
An expert in ballistics whose qualifications were conceded testified without equivocation that the bullets removed from the head and body of the victim were fired from the gun that had been tossed from his speeding car by the appellant and discovered on the roadside soon after his capture.
After these facts had been related the court conducted an inquiry into the circumstances surrounding a confession by the appellant. There was no charge that it was induced by fear, coercion or promise of reward; on the contrary, it was conceded by counsel for the appellant that it was freely and voluntarily given.
Before making his statement the appellant was fully advised of his right to speak or to decline and warned that anything he said could be used against him in the event of his trial for the homicide of Roger S. Hendry the preceding evening.
As reflected by the statement appellant was roaming the street when he saw his eventual victim get out of his car and enter a tavern. The appellant then got in the rear of the car to await the driver's return. In 15 or 20 minutes the driver came back and began driving away. The appellant got up and he thought that in doing so Hendry felt the pressure against the front seat. Hendry turned around and hit appellant's hand causing the gun accidentally to discharge three times. Appellant denied that he was attempting to get money but admitted he was "trying to get his [Hendry's] car." He admitted the gun was his and that he had purchased it in Oaklawn, Illinois. Furthermore, he identified the receipt found on his person as the one given him by the seller of the gun in Illinois. Parenthetically, it is apparent from certain inconsequential changes of words made by the appellant in the transcription of the reporter that the appellant read the paper carefully.
The rest of his story in respect of forcing the man and woman to transport him for a while then entering a second car which the driver surrendered to him, speeding along the highway until he was stopped by the officers, throwing the pistol from the car just before he was halted and being present with the officers when it was retrieved corresponded in essential details with the accounts of the witnesses we digested at the outset.
In brief, his excuse for his act, or explanation of it, was that he wanted to seize his victim's car and that the gun discharged accidentally when the victim struck it with his hand.
*734 We revert now to the first question posed by the appellant, namely, whether "physical abuse at the time of arrest" vitiated the evidence there obtained. We must answer in the negative. Although we do not sanction an officer's striking a prisoner unnecessarily we can fully understand the exasperation that was generated in the deputy who was forced from the road by the intentional zigzagging of appellant's car while both were travelling at extremely high speed with the result that the deputy's car was wrecked although he escaped with his life. The presence of other officers, the circumstances surrounding the arrest and the apparent cooperation of the appellant in locating the gun, the presence of the appellant in an automobile he had seized at the point of a gun all seem to belittle the claim that because one officer, who had just escaped becoming a victim of the appellant's intended wild driving slapped the appellant in fit of anger, the evidence procured at the scene of the capture was so contaminated as to be inadmissible. There was ample evidence to justify appellant's arrest and none to support any theory that the blow was delivered to coerce a confession or to force an illegal search.
The appellant next contends that the corpus delicti was not fully established before his "statements" were admitted. There are three components of the body of the crime of murder, or corpus delicti: the death, the identity of the deceased and the criminal agency. And the evidence need not establish them beyond a reasonable doubt but only tend to show them as a prerequisite to introduction of a confession. Jefferson v. State, Fla., 128 So. 2d 132.
In this case there was abundant evidence of the death and identity of the victim, and, we think, of the criminal agency as well. It appears to be the appellant's position that this element, of criminal agency, was not established because there was no evidence independent of the confession that any robbery was actually attempted. Obviously, Roger S. Hendry did not die from natural causes, or by accident or by suicide. He was shot from the rear or side by someone at his back and proof of this sufficed to establish the criminal agency regardless of the eventual statements in the confession that appellant proposed only to take the victim's automobile, and that the discharge of the pistol was accidental.
We reject the appellant's second contention and pass to his third. He insists that too much emphasis was placed by court and prosecutor on an attempted robbery as an element of the homicide and too little on other crimes "such as larceny, which * * * could readily remove the case from the category of murder in the first degree." He charges that the court elaborated on the crime of robbery although there was but one reference to it in the record, and that was in the appellant's "statement". Further, he complains that the court made but a brief reference to murder in the third degree and none at all to larceny and other offenses. To give any weight to this contention it would be necessary to accept the premises that he accidentally shot the driver three times while concealed in the back of his car and that he entertained no intention to rob but only to steal so the offense was murder in the third degree. The position is too tenuous to warrant approval by this court.
We are unable to follow appellant's argument that the court was obligated to define to the jury the offense of larceny or "other enumerated offenses which could, under the facts of the case, constitute lesser offenses." The record does not reveal any request for definitions of lesser offenses and the statute, Sec. 782.04, Florida Statutes 1961, F.S.A., does not enumerate any crimes during the commission of which a homicide shall constitute murder in the first degree except arson, rape, robbery, burglary, crime against nature and kidnaping. Homicide when committed by one engaged in any other felony is murder in the third degree, but we will not explore every facet of the facts we have recounted to determine *735 whether or not some element of some felony other than the ones detailed was present, and we think there was no occasion for the trial judge to do so.
The appellant mentions only one of these other offenses, larceny, but it is obvious to us that if, when appellant dispatched Hendry, he intended to take his car he was attempting to commit robbery, not larceny.
We have examined carefully the charges to the jury given by the trial judge and have found them to be correct. He followed faithfully the language of the statute in defining murder in the first, second and third degrees. The appellant was charged in the indictment with shooting Hendry with a pistol intending to kill him. The judge meticulously differentiated between murder in the first degree and murder in the third degree and the jury by adhering to his charges could not have formed any opinion but that the defendant, if proven guilty beyond a reasonable doubt of killing Hendry from a premeditated design to effect his death or while perpetrating any one of the felonies we have named, could be found guilty of murder in the first degree, while if proven guilty beyond a reasonable doubt of the homicide while engaged in the commission of any felony other than those detailed could be convicted of murder in the third degree.
Furthermore, the judge carefully distinguished murder in the first degree committed with a premeditated design to kill and murder in that degree perpetrated while committing or attempting to commit the graver felonies. True, he defined robbery as he should have done under the facts developed in the trial. He concluded the charge by telling the jury the defendant could be found guilty of murder in the first degree, murder in the second degree, murder in the third degree or manslaughter, or could be acquitted, and furnished them a form for each of such verdicts.
The appellant has linked the prosecutor with the judge in his complaint that undue emphasis was placed on the subject of robbery. We have examined the relevant record to which we have been referred but have not found in the colloquy among the court and counsel any comment indicating prejudice or justifying our disturbing the judgment on this score.
In the same exchange of remarks appears one by counsel for the State that the deceased "had his head blown off" whereas he had been shot only in the head and neck. This variance would not take one to the wrong conclusion relative to guilt or innocence of the defendant. The point was that the wounds inflicted took the victim's life even though he was not decapitated.
Finally, the appellant complains about the remarks of the judge to the jury after they had been deliberating for about six and a half hours. He told them, in effect, that a juror should not from pride of opinion hastily formed refuse to agree with his fellow-jurors; that it was their duty to agree if that could be done without violence to conscientious convictions. He asked them to resume their discussion of the case assuring them that, if the court could, he would be glad to assist them by further exposition of the law. We think no harm was done the appellant in this regard. This language was completely justified under decisions of this court rendered in Sigsbee v. State, 43 Fla. 524, 30 So. 816, and Nelson v. State, 148 Fla. 338, 4 So. 2d 375.
As we are obligated to do by Sec. 924.32, Florida Statutes 1961, F.S.A., we have reviewed the evidence in this case to determine whether or not the interests of justice require a new trial and we conclude that they do not.
The judgment is affirmed.
ROBERTS, C.J., and TERRELL, THORNAL, CALDWELL and SEBRING (Ret.), JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588292/ | 30 Kan. App. 2d 865 (2002)
50 P.3d 509
ROBERT GEORGE WILLIAM DeGRAEVE, Appellee,
v.
NICOLE LEE HOLM, Appellant, and
JEREMY JAMES DECKER, RICHARD BRUCE, and CHAD E. HOLM, Respondents.
No. 87,942.
Court of Appeals of Kansas.
Opinion filed July 19, 2002.
Thomas DeCoursey, of Kansas City, for appellant.
Ronald W. Nelson, of Rose, Nelson & Booth, of Overland Park, for appellee.
Before GERNON, P.J., MARQUARDT and BEIER, JJ.
MARQUARDT, J.:
Nicole Lee Holm appeals the trial court's decision awarding grandparent visitation rights to Robert George William DeGraeve, Nicole's father. We affirm.
*866 Nicole has three children; each child has a different father. Nicole has a history of drug abuse and emotional problems.
In 1997, Robert and his wife Mel were awarded guardianship of Nicole's son Z. Nicole consented to the guardianship. Z. lived with Robert and Mel from June 1997 to October 2000.
Mel testified that during the guardianship, Nicole "barely acknowledged Z. was alive." Mel testified that Nicole stated she did not really love Z. because she did not love his father.
Z. returned to Nicole's home in October 2000, but continued to visit Robert and Mel every other weekend. In February 2001, Nicole terminated Z.'s contact with Robert and Mel.
In March 2001, Robert filed a petition for grandparent visitation with all three of Nicole's children. Nicole filed an answer, claiming that Robert had been "disruptive in the children's lives." She also claimed that Robert threatened and harassed her and her husband. The petition was heard by the trial court in August 2001.
The trial court did not find Nicole to be an unfit parent; however, it found that Nicole's refusal to allow Robert visitation was motivated by "feelings of antipathy and dislike for her stepmother and her anger with her father."
The trial court found that there was a substantial relationship between Robert and Z. and visitation was in Z.'s best interests. Such a finding overcame the presumption that Nicole was acting in Z.'s best interests. Accordingly, the trial court granted Robert visitation with Z. and ordered mediation to establish a visitation schedule. In November 2001, the trial court approved the mediator's visitation schedule. Nicole appeals.
Nicole argues that the trial court erred by allowing visitation absent a finding that she was an unfit parent.
In cases involving grandparent visitation, we review the evidence in a light most favorable to the prevailing party below to determine if substantial evidence exists to support the trial court's findings. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issue can be reasonably resolved. Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 653, 16 P.3d 962 (2001).
K.S.A. 38-129 reads, in relevant part:
*867 "The district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child's minority upon a finding that the visitation rights would be in the child's best interests and when a substantial relationship between the child and the grandparent has been established."
The United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), recognized that a parent's interest over the care, custody, and control of his or her children is perhaps the oldest of the fundamental liberty interests recognized in this country. 530 U.S. at 65. Historically, the law has recognized that natural bonds of affection lead parents to act in the best interests of their children. Accordingly, so long as a parent adequately cares for his or her children, there will normally be no reason for the State to inject itself into the private realm of the family and question the ability of that parent to make the best decisions concerning the rearing of that parent's children. 530 U.S. at 68-69.
K.S.A. 38-129 makes no reference to a prerequisite finding of parental unfitness. Moreover, neither Troxel nor Paillet establish a bright line rule requiring a finding of parental unfitness as a prerequisite to grandparent visitation. See In re T.A., 30 Kan. App. 2d 30, 34, 38 P.3d 140 (2001). There is a fundamental presumption that a fit parent will act in the best interests of his or her child in determining visitation under K.S.A. 38-129. However, a parent's determination of what is in the child's best interests is not always absolute; otherwise the parent could arbitrarily deny grandparent visitation without the grandparents having any recourse. T.A., 30 Kan. App.2d at 34.
A trial court is not required to make a finding of parental unfitness before awarding grandparent visitation. Nicole's argument to the contrary is not supported by the statute or relevant case law.
In order for the trial court to grant grandparent visitation, the court must find that a substantial relationship exists between the grandparent and the child and that the visitation is in the child's best interests. See Paillet, 270 Kan. at 653. The burden of proof is upon the grandparent to prove these elements. T.A., 30 Kan. App. 2d at 34-35.
*868 The trial court correctly noted that Robert bore the burden to overcome the presumption that Nicole was acting in her children's best interests. Robert presented testimony from numerous witnesses, all of whom had first-hand knowledge of Robert's relationship with all of the children, particularly Z.
It is undisputed that Z. resided with Robert from June 1997 to October 2000. The guardianship began when Z. was 6 months old. Z. did not see Nicole from August 1997 to February 2000, at which time supervised visitations were initiated. Notwithstanding the fact that Nicole was granted visitation with Z., she missed at least 1 month of visits.
Nicole testified that Robert was trying to control her through the children. Nicole wanted her father and Mel to "change their attitudes" toward her. Nicole specifically wanted them to "stop trying to make [her] life difficult by going in and testifying, ganging up and testifying with this person; and basically, just that." Nicole admitted that she did not contribute to Z.'s care while he was in Robert's home.
Nicole and her current husband do not appear to have a harmonious relationship. Robert's home serves as a gathering place for the family, which includes a large number of cousins. Nicole has not allowed Z. to have contact with his relatives.
We agree with the trial court that Robert had a substantial relationship with Z., and he successfully overcame the presumption that Nicole was acting in Z.'s best interests. Accordingly, the trial court did not err in granting Robert visitation with Z.
Nicole requested that she be awarded attorney fees pursuant to K.S.A. 38-131. The trial court denied her request.
K.S.A. 38-131 reads:
"Costs and reasonable attorney fees shall be awarded to the respondent in an action filed pursuant to K.S.A. 38-129 et seq. unless the court determines that justice and equity otherwise require."
On appeal, Nicole cites no authority for her request other than the statute. She maintains that because the statute uses the word "shall," it is mandatory that she be awarded attorney fees. She *869 completely ignores the phrase "unless the court determines that justice and equity otherwise require."
Nicole interjects an equity argument, stating that she is an unemployed mother of three children and cannot pay her attorney fees. Nicole maintains that she acted in her child's best interests.
Generally, an award of attorney fees rests within the sound discretion of the trial court, and its determination will not be disturbed on appeal in the absence of an abuse of discretion. York v. InTrust Bank, N.A., 265 Kan. 271, 307, 962 P.2d 405 (1998).
Where the trial court made no finding on the issue of justice and equity, petitioner must pay respondent's attorney fees. Spradling v. Harris, 13 Kan. App. 2d 595, 602-03, 778 P.2d 365, rev. denied 245 Kan. 786 (1989).
Vindictiveness on the part of the respondent in a case brought under K.S.A. 38-129 is a finding that supports the trial court's reasoning in denying the respondent attorney fees. In the instant case, the trial court found that Nicole withheld visitation for "vindictive purposes" that were not in the best interests of Z. and refused to award Nicole attorney fees. The trial court did not abuse its discretion by finding that the interests of justice and equity required that attorney fees not be awarded to Nicole.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619659/ | 13 So. 3d 480 (2009)
N.C.
v.
STATE.
No. 3D09-27.
District Court of Appeal of Florida, Third District.
July 8, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619652/ | 585 N.W.2d 245 (1998)
AMERUS PROPERTY BROKERS d/b/a Iowa Realty Commercial Brokers, Appellee,
v.
Robert V. HICKLIN, Sr., Individually and as Managing General Partner for Big "H" Realty Partnership; Robert V. Hicklin, Jr., Gregory A. Hicklin; Judith A. Hicklin, Frances E. Hicklin, Individually and as Partners of Big "H" Realty Partnership, Appellants.
No. 97-326.
Supreme Court of Iowa.
October 21, 1998.
*246 Randy Duncan, Miriam S. Sawtelle, and R. Mathieson Duncan of Duncan, Green, Brown, Langeness & Eckley, P.C., Des Moines, for appellants.
Jeffrey L. Goodman of Shearer, Templer & Pingel, P.C., West Des Moines, for appellee.
Considered by McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and TERNUS, JJ.
NEUMAN, Justice.
This case involves a real estate brokerage firm's attempt to recover a commission on the renewal of a commercial lease between two parties originally brought together by the broker. The question is whether the second lease is a "negotiated renewal" qualifying for a commission under the parties' listing agreement, or a totally "new" lease beyond the parties' agreement. Ruling on the parties' cross-motions for summary judgment, the district court entered judgment for the broker. Because we believe the court correctly applied the contract's "negotiated renewal" provision, we affirm.
I. Background Facts and Proceedings.
In May 1994, defendant Big "H" Realty Partnership sought a tenant for an industrial warehouse it owns in Ankeny, Iowa. Big "H" agreed to list the property with plaintiff Amerus Property Brokers d/b/a Iowa Realty Commercial Brokers (Amerus). The parties listing agreement provided, in pertinent part, that in the event a lease were secured, Big "H" would pay Amerus
a five percent (5%) commission on the gross lease (including negotiated renewals, exercised options or extensions by the Tenant) or one months rentwhichever is greater, payable when the Lease is executed.
(Emphasis added.) The contract term negotiated renewals is at the heart of this controversy.
By July 1994, Amerus located a tenant, Dee Zee, a company needing warehouse space to distribute its products. Dee Zee and Big "H" executed a seventeen-month lease containing an option to renew for one three-year period. The lease called for monthly payments of $22,359.17. If the tenant exercised its renewal option, the rental would be "adjusted annually to reflect changes in the Consumer Price Index ("C.P.I." ) number." General maintenance of the building fell to Dee Zee; improvements and repairs were the responsibility of Big *247 "H." In accordance with the listing agreement, Big "H" duly paid Amerus its brokerage commission upon execution of the lease.
While occupying the property, Dee Zee became dissatisfied with certain physical characteristics of the building. The building's drawbacks weighed heavily in its decision whether to stay at the Ankeny location or relocate. It commenced negotiations with Big "H" concerning a subsequent lease term. Dee Zee requested additional dock doors and repairs to the dock "levelall" system, installation of a fire sprinkler, heaters, driveway improvements, and roof repairs. Dee Zee also insisted it would not agree to a C.P.I. escalation clause on any renewal of the lease.
Dee Zee and Big "H" eventually agreed to a three-year lease to commence upon the expiration of the original seventeen-month term. The second lease called for a monthly rent of $20,868.56. The monthly reduction from the original lease, when amortized over the life of the lease, totaled $53,662. In turn, Dee Zee agreed to spend at least $53,662 for improvements to the premises, including the installation of additional dock doors, a ventilation system, and essential roof repairs. The second lease contained no C.P.I. escalator clause.
When Amerus learned about Dee Zee's continued tenancy, it billed Big "H" for its five percent commission. Big "H" refused to pay, insisting the second lease was a "new" lease, not a "negotiated renewal, exercised option or extension" covered by its listing agreement with Amerus.
Amerus filed suit to compel payment of the commission. The parties eventually filed cross-motions for summary judgment. The district court found the material facts were undisputed. The parties, property, and rental cost remained the same, with no interruption in the tenant's occupation of the premises. Variations between the two leases, the court concluded, were insubstantial and resulted from the negotiation process contemplated by the "negotiated renewal" clause. It entered judgment for Amerus based on a commission due on the second lease of $37,563.41. This appeal by Big "H" followed.
II. Issue on Appeal/Scope of Review.
Big "H" frames the issue on appeal this way: The district court erred in holding that the 1996 lease between Big "H" and Dee Zee is a negotiated renewal. Both parties agree that the material facts bearing on the question are undisputed. Because the conflict concerns only the legal consequences flowing from undisputed facts, resolution by way of summary judgment is proper. Farm Bureau Mut. Ins. Co. v. Milne, 424 N.W.2d 422, 422-23 (Iowa 1988). Our review is for the correction of errors at law. Hayward v. P.D.A., Inc., 573 N.W.2d 29, 31 (Iowa 1997).
III. Analysis.
The parties do not seriously dispute the meaning of the term "negotiated renewal" found in their listing agreement. They merely contest the legal effect of a contract containing such a term. Thus we view the case as one involving construction of the parties' contract, not interpretation of contractual words used. See LeMars Mut. Ins. Co. v. Joffer, 574 N.W.2d 303, 306 (Iowa 1998) ("interpretation" requires court to determine meaning of contractual words; "construction" requires court to determine contract's legal effect). We are guided by the "cardinal principle" that the parties' intent controls, "and except in cases of ambiguity, this is determined by what the contract itself says." Iowa R.App. P. 14(f)(14).
Big "H" concedes at the outset that a "renewal" of its original lease with Dee Zee would result in a commission payable to Amerus. It also concedes, as it must, that it negotiated at great length with Dee Zee. Yet Big "H" contends its 1996 lease with Dee Zee is not a "negotiated renewal," as that term is used in the listing agreement, because (1) the original lease left no room for negotiation, and (2) the original lease terms were rejected by Dee Zee and ultimately abandoned in favor of an entirely "new" lease.
Big "H" supports its argument with a line of cases standing for the proposition that a lease "renewal" occurs only when the terms of the second lease are the same as the original lease. See, e.g., Strano v. Reisinger Real Estate, Inc., 534 So. 2d 1214, 1215 (Fla. Dist.Ct.App.1988) ("A lease renewal connotes *248 a continuation of the landlord-tenant relationship on the same terms as the original lease." ); accord Woodard Tire Co. v. Hartley Realty, Inc., 596 So. 2d 1114, 1116 (Fla. Dist.Ct.App.1992). The "rule" announced in these cases, however, merely echoes the contractual language by which the parties were bound. Thus in Woodard, for example, the brokerage clause referred to a lease which defined "option to renew" as being "on the same terms, covenants and conditions as provided in this Lease." Woodard, 596 So.2d at 1116 (emphasis added). Similarly, in another case relied upon by Big "H," the commission agreement provided that the broker "shall not be entitled to commissions on renewals, extensions or leases of additional space that are not pursuant to options or rights contained in the original lease...." Cushman & Wakefield v. Williams, 551 So. 2d 1251, 1252 (Fla.Dist.Ct.App.1989) (emphasis added).
Amerus relies on a different line of cases which tend to take a more relaxed view of what constitutes a renewal. In Dubinsky Realty, Inc. v. Vactec, Inc., 637 S.W.2d 190, 191 (Mo.Ct.App.1982), for example, the court construed a listing agreement making a commission payable on renewal of the lease "whether or not said... renewal is made exactly on the same terms of this lease." As in the case before us, the landlord resisted paying an additional commission, arguing "significant and numerous dissimilarities" existed between the two leases. Dubinsky, 637 S.W.2d at 193. The court held the parties' agreement contemplated changes at the end of the term and, in the absence of "a substantial change in the landlord tenant relationship," the agreed-upon commission was due. Id. In reaching its decision, the court reasoned:
Although the renewal of a lease is usually for a similar period and on similar terms and conditions, the fact the new grant is for a different time period or calls for higher rent and an extension of the premises, as in the instant case, will not prevent it from being considered a renewal. This is particularly so where, as here, the parties to the original lease expressly contemplated renewal on terms different from those contained in the original lease.
Id. at 192-93 (citations omitted). In a factually comparable case, the Georgia Court of Appeals recently took the same approach:
[I]n deciding whether a succeeding lease is substantially a renewal of a preceding lease or altogether a new lease, the determination can be based on whether the succeeding lease employs drastically different terms, not simply somewhat different considerations, i.e., is the lessee occupying substantially the same space under substantially the same terms? If the succeeding lease employs substantially the same terms as the preceding lease, it may be considered a renewal even though technically a "new" lease.
Westminster Group, Inc. v. Perimeter 400 Partners, 218 Ga.App. 293, 460 S.E.2d 827, 830-31 (1995) (quoting Board of Regents v. A.B. & E., 182 Ga.App. 671, 357 S.E.2d 100, 102 (1987)).
We are able to draw only limited assistance from these decisions. The brokerage contract before us must be construed in accordance with its own unique terms. Clearly the lease between Big "H" and Dee Zee did not contemplate renewal on the same terms as the original lease. Nor was the lease entirely open-ended insofar as renewal was concerned. The lease specifically provided a renewal option with a new rental rate pegged to changes in the C.P.I. Thus the question boils down to whether Amerus can rightfully insist on a renewal commission when the leasing parties opt to continue their landlord-tenant relationship other than in accordance with the original lease.
We begin by noting this court has long been committed to the general rule that a brokerage firm is entitled to a commission if it produces a buyer willing and able to purchase property upon the terms specified in the listing agreement, or upon terms which the sellers are willing to accept. Iowa Sec. Co. v. Schaefer, 256 Iowa 219, 224, 126 N.W.2d 922, 925 (1964); Ross v. Miller, 254 Iowa 1364, 1368, 121 N.W.2d 124, 126 (1963). When the broker's work culminates in a lease, rather than a sale, the value of the broker's services logically extends over the life of the lease and should be compensated *249 accordingly. Thus other courts have recognized that brokers may be entitled to commissions even "where options [to renew] were not exercised under the precise terms of the lease agreement." Louis Ross Assocs. v. Interstate Holding Corp., 249 N.J.Super. 436, 592 A.2d 622, 623 (1991). "To hold otherwise," the New Jersey appellate court has held,
would lay open the way for real estate owners to deprive brokers or agents of their commission simply by entering into a new contract with the buyer or lessee cancelling the contract resulting from the services or efforts of the agent, and entering into a contract of sale or lease for a different price or commission.
Id. (quoting Consolidated Realty Co. v. Graves, 291 Ky. 456, 165 S.W.2d 26, 30 (1942)).
Here, the district court found that the parties' listing agreement accommodated the likelihood that the leasing parties would "negotiate" renewal terms differing from those contemplated in the original lease, and the listing agreement protected the broker's commission rights accordingly. The court reasoned:
One can infer from the use of the phrase "negotiated renewal" that the parties intended that a condition precedent for future payment of a broker's fee is that the parties, after negotiating the renewal terms, agree to continue the lease agreement. The adjectival use of the word "negotiated" in conjunction with the word "renewal" connotes that the event of renewal would be preceded by a process in which the parties exchanged demands for changes favorable to themselves in the terms of the original agreement.
We believe the district court correctly construed the parties' contract. There can be no serious dispute that the essentials of the lease agreement in the original and subsequent leases between Big "H" and Dee Zee were the same: same parties, same property, and substantially the same rent. The reduction in the square footage rental price in the subsequent lease is directly proportional to the amount Dee Zee agreed to spend on maintenance and improvements. The stipulated record reveals that any effect Big "H" felt from the elimination of the C.P.I. adjustment clause (its hedge against inflation) would in all likelihood be offset by the future costs Dee Zee will incur in carrying out the improvements. In other words, the variance in terms between the original and subsequent leases merely reflects the owner's and tenant's negotiations. Because their enduring relationship is the product of Amerus initially procuring the tenant, we conclude as did the district courtthat Big "H" must be held to the bargain it memorialized in the listing agreement. We thus affirm the district court's judgment for Amerus, entitling it to a commission on the "negotiated renewal" between Big "H" and Dee Zee.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619678/ | 13 So. 3d 178 (2009)
MAKES & MODELS MAGAZINE, INC., a Florida corporation, Appellant,
v.
WEB OFFSET PRINTING CO., INC., a Florida corporation, Appellee.
No. 2D08-1061.
District Court of Appeal of Florida, Second District.
June 17, 2009.
*179 Caryl E. Delano of Addison & Delano, P.A., Tampa (withdrew after briefing); Robert A. Carr, Thonotosassa, and Kevin C. Ambler of Law Offices of Kevin C. Ambler, P.A., Tampa (substituted as counsel of record), for Appellant.
Brandon S. Vesely of Keane, Reese, Vesely & Gerdes, P.A., St. Petersburg, for Appellee.
VILLANTI, Judge.
Web Offset Printing Co., Inc. (Web Offset) obtained a judgment by default in Pinellas County against Makes & Models Magazine, Inc. (Makes & Models). Makes & Models moved to vacate the clerk's default, the circuit court denied the motion, and Makes & Models now appeals the denial of its motion. We reverse because Web Offset knew that Makes & Models intended to defend the lawsuit and failed to contact Makes & Models' known counsel prior to seeking a default.
FACTS
On June 1, 2006, Makes & Models sued Web Offset in Hillsborough County seeking damages and rescission of the parties' agreement. In essence, the Hillsborough lawsuit alleged that Makes & Models had hired Web Offset to print Makes & Models' magazine and that Makes & Models *180 was dissatisfied with the quality of Web Offset's March 2006[1] print job. Web Offset was properly served and, through counsel, filed pleadings and actively participated in the Hillsborough lawsuit. The Hillsborough lawsuit is currently pending.[2]
On August 7, 2006, Web Offset filed a separate action against Makes & Models in Pinellas County seeking payment for monies allegedly owed. The Pinellas lawsuit arose out of the same events as the Hillsborough lawsuit and alleged that Makes & Models had not paid Web Offset for the March 2006 magazine print job and for another print job called "Festival of Speed." Web Offset then served Makes & Models' registered agent, CT Corporation. Makes & Models did not answer the complaint, allegedly because it did not receive it from CT Corporation.
On September 1, 2006, Web Offset filed a motion for entry of a clerk's default. The motion's certificate of service alleged that a copy of the motion had been mailed directly to Makes & Models at 508 West Fletcher Avenue, Tampa. It is undisputed that this address was incorrect. Makes & Models has asserted that its correct address at all relevant times was 16102 N. Florida Avenue, Lutz. Web Offset's appellate brief conceded that the Lutz address had been Makes & Models' correct address since January 2006, seven months before the filing of the Pinellas lawsuit. Notably, while Web Offset mailed a copy of the motion for default to the Fletcher Avenue address, it mailed all other filings to Makes & Models at 16102 N. Florida Avenue, Lutz. Based on these undisputed facts, it appears that Web Offset's motion for default was not properly mailed to Makes & Models and that Makes & Models did not receive the motion.
On September 5, 2006, the clerk entered a default against Makes & Models. On September 20, 2006, Web Offset filed a motion for entry of final judgment, which it served directly on Makes & Models' president at the correct address, 16102 N. Florida Avenue, Lutz. On September 28, 2006, Makes & Models filed a motion to vacate default and motion for dismissal of the Pinellas action. The motion alleged that Makes & Models did not know about the Pinellas lawsuit until it received a copy of the motion for entry of final judgment. Makes & Models' motion also indicated that an action between the same parties involving the same issues had been pending in Hillsborough County since July 2006.
On December 21, 2007, the circuit court held a hearing on Web Offset's motion for entry of final judgment and on Makes & Models' motion to vacate the default and for dismissal of the action. The circuit court declined to set aside the default, noting that Makes & Models' motion was not verified or sworn and that Makes & Models had not filed any affidavits in support of its motion. The court concluded that Makes & Models had not established excusable neglect necessary to set aside the default. The court granted Web Offset's motion for final judgment. Makes & Models filed a motion for rehearing or, in the alternative, motion for relief from final judgment and for relief from the order denying its motion to vacate the default. The circuit court denied that motion, and Makes & Models filed the instant appeal.
*181 ANALYSIS
An order denying a motion to vacate a clerk's default is reviewed under an abuse of discretion standard. U.S. Bank Nat'l Ass'n v. Lloyd, 981 So. 2d 633, 639 (Fla. 2d DCA 2008). Nevertheless, Florida Rule of Civil Procedure 1.500, which allows entry of a clerk's default when a party fails to file or serve any paper in an action, should be liberally construed in favor of deciding cases on the merits. Lloyd, 981 So.2d at 639-40; Nat'l Union Fire Ins. Co. of Pittsburgh, P.A. v. McWilliams, 799 So. 2d 378, 380 (Fla. 4th DCA 2001). Furthermore, a default is not designed to give a strategic advantage to the plaintiff so that it may obtain a judgment without dealing with the defendant's challenges and defenses. Ole, Inc. v. Yariv, 566 So. 2d 812, 814-15 (Fla. 3d DCA 1990).
In Lloyd this court held that "[a] trial court should vacate an ex parte default when `the plaintiff seeking default had actual knowledge that the defendant was represented by counsel and intended to defend the lawsuit, but failed to contact the defendant's counsel prior to seeking default.'" Lloyd, 981 So.2d at 640 (quoting Nat'l Union Fire Ins. Co., 799 So.2d at 380). If the plaintiff is aware that the defendant is represented by counsel and intends to defend the litigation on the merits, it is required to serve the defendant with notice of the application for default and to present the matter to the court for entry of the default. Id. While we recognize that the circuit court did not have the benefit of the Lloyd opinion when it entered its order, the principles at issue predate Lloyd. See, e.g., Ole, Inc., 566 So.2d at 814; Gulf Maint. & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So. 2d 813, 816 (Fla. 1st DCA 1989) ("A default is a procedural matter within the control of the attorney, so plaintiff's counsel should contact the attorney known to be representing a defendant to determine whether the latter intends to proceed in the matter before causing a default to be entered."). A default that does not comply with this requirement "must be vacated without regard to whether the defendant can establish a meritorious defense or whether the defendant can demonstrate inadvertence or excusable neglect." Lloyd, 981 So.2d at 640.
In this case, Web Offset obtained a clerk's default without prior notice to Makes & Models. As explained in Lloyd and National Union, and sufficiently argued below, based on this fact the trial court was required to consider a two-part inquiry: (1) whether Web Offset had actual knowledge that Makes & Models intended to defend the Pinellas lawsuit and (2) whether Web Offset had actual knowledge that Makes & Models was represented by counsel. See id. at 639. Makes & Models was already pursuing the Hillsborough lawsuit against Web Offset when the Pinellas lawsuit was filed. Given that the Hillsborough and Pinellas lawsuits involved the same dispute, Web Offset had actual knowledge of Makes & Models' intent to defend the Pinellas lawsuit. Therefore, the first part of the two-prong inquiry set forth in Lloyd and National Union was answered in the affirmative. The second part of the two-prong inquiry was also answered in the affirmative because it is undisputed that Web Offset knew that Makes & Models was represented by counsel in the Hillsborough lawsuit, which involved the same issues. In fact, both parties were actively participating in the Hillsborough lawsuit. Web Offset has not even suggested that it did not have knowledge of Makes & Models' intent to defend the Pinellas lawsuit or that it did not have knowledge that Makes & Models was represented by counsel. Based on these *182 facts, Web Offset was required to notify Makes & Models before moving for entry of a default. Hence, here, the circuit court should have vacated the default without regard to whether Makes & Models had established a meritorious defense or whether it had demonstrated excusable neglect. See Lloyd, 981 So.2d at 640. The invalid entry of the clerk's default renders the final judgment void. Gulf Maint. & Supply, Inc., 543 So.2d at 817.
CONCLUSION
We cannot conclude without making one final observation. Web Offset's argument pressed for a strict and literal interpretation of the default rules without any regard for civility or for the professionalism expected when one party is aware that the opposing party is represented by counsel and intends to defend against the claims at issue.[3] Although these are not difficult concepts to grasp, post-Lloyd, a party's responsibilities when faced with similar circumstances should be clear.
For the reasons stated above, the circuit court abused its discretion when it denied Makes & Models' motion to vacate the default and entered a final judgment in favor of Web Offset. Accordingly, we reverse and remand with directions to vacate the clerk's default and the final judgment.
SILBERMAN and LaROSE, JJ., Concur.
NOTES
[1] While the Hillsborough complaint referenced a March 2005 print job, the parties do not dispute that the controversy arose from the March 2006 print job.
[2] We note that Web Offset filed a motion in the Hillsborough lawsuit seeking an extension of time to file a counterclaim. The motion asserted that the latter-filed Pinellas lawsuit "may constitute a Counterclaim" in the Hillsborough lawsuit.
[3] Web Offset's appellate counsel was not its counsel in the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619684/ | 585 N.W.2d 398 (1998)
STATE of Minnesota, Respondent,
v.
Anthony Troy PARKER, Appellant.
No. C0-97-1657.
Supreme Court of Minnesota.
November 5, 1998.
*399 Harlan M. Goulett, Allan H. Caplan & Associates, Minneapolis, for appellant.
Hubert H. Humphrey III, Attorney General, Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, St. Paul, for respondent.
Heard, considered, and decided by the court en banc.
OPINION
BLATZ, Chief Justice.
Appellant was convicted of first-degree and second-degree murder and given a life sentence for first-degree murder. Appellant is requesting that the conviction be reversed on six grounds. First, appellant claims that the trial court erred in denying his pre-trial motion to dismiss the indictment for untimely filing. Second, appellant claims that the trial court erroneously admitted into evidence appellant's post-Miranda statements to police, arguing that the statements should be characterized as an invocation of appellant's right to remain silent. Third, appellant claims that the trial court erroneously admitted into evidence appellant's statements that followed his ambiguous invocation of counsel. Fourth, appellant claims that the trial court erroneously admitted the fruits of appellant's police interrogation because the police did not notify appellant's counsel prior to his questioning. Fifth, appellant claims the trial court erroneously prohibited appellant from introducing evidence of another witness' possible culpability during cross-examination of that witness. Finally, appellant claims that the trial court erred in allowing expert testimony *400 relating to the deliberate nature of the injuries of the victim. We affirm the conviction, and deny appellant's request for a new trial.
On December 17, 1996, appellant, Anthony Troy Parker, was charged with first-degree murder and second-degree murder for the stabbing death of John Beavers. At approximately 2:00 a.m. that day, Beavers was at a friend's house in St. Paul, Minnesota. Beavers was with his girlfriend, Lonnie Weldon. Weldon is also the appellant's first cousin. Beavers was on the telephone with his brothers in Arkansas when he received multiple signals on his pager from the same telephone number. The number belonged to the house in which appellant was living. Beavers put his brothers on hold and called the number on the pager. According to Weldon, Beavers spoke with the appellant and they agreed to meet near appellant's home on Belvedere Street in West St. Paul, for the purpose of selling appellant drugs. Because Beavers was not familiar with the St. Paul area, he had Weldon speak with the appellant to get directions. Weldon also agreed to ride with Beavers to meet appellant.
When Beavers and Weldon arrived, the appellant got in the back seat of Beavers' car. Appellant then pulled out a knife and put it to Beavers' face. Weldon, in fear, got out of the car to run for help. Before she ran she heard Beavers say "Ah, man, Tony." As Weldon was running from the car, she saw appellant get out of the back seat, passenger-side door, and walk around to the front of the car and open the driver's door. She then saw the car roll down the hill it was parked on. Weldon ran to Robert Street, where she stopped a driver with a cellular phone who called the St. Paul police. When the police and paramedics arrived, they found Beavers dead in his car. Based on Weldon's report, the police identified Anthony Parker, the appellant, as the prime suspect.
Later that morning, appellant awoke and turned on the television set. He saw his name on the news and learned that he was wanted for a homicide investigation. Appellant "tripped out," and made several calls to friends and family members. Appellant testified at trial that after seeing his name on television, he "called the Neighborhood or I called a different law firm." Appellant was referring to the Neighborhood Justice Center ("NJC"), which did not represent appellant at trial. Someone at the NJC told appellant that "they wasn't [sic] sure if they could represent me." Appellant replied that he did not care if NJC would not represent him, and that he was coming to its office. From NJC, appellant called his landlord and housemate, Eleanor Medina, to ask her for money. At trial, appellant suggested that he needed the money either for bail, an attorney, or to "make a run for the border." Medina agreed to send David Hanson, another housemate, to meet the appellant outside the federal courthouse in St. Paul to deliver the money. Hanson then informed the St. Paul police of the arranged meeting with appellant, and agreed to aid in a police stakeout. The police executed a successful stakeout, and arrested the appellant outside the courthouse.
After appellant was brought to the police station, Sgt. Keith Mortenson of the St. Paul police interviewed him. Mortenson began the interview by giving appellant his Miranda warnings, which appellant read and initialed. During the interview, appellant stated that he saw his name on the news but did not remember what he was wanted for. Appellant was then asked if he knew Beavers, to which he replied "I don't know." The questioning continued:
Sgt.: Do you know Lonny [sic] Weldon?
Parker: Can't answer.
Sgt.: You can't answer me. How come?
Parker: Cuz my lawyer told me not to.
Sgt.: Ahhhhhhhhh, so your lawyer told you not to talk to me?
Parker: Ya. I, I just want you to know, I'm not talkin' to you, alright so, ahh, I want some people to be there when you talk to me anyway. Cuz ah...
Sgt.: Okay. Well here is the deal. Umm, you don't have to talk to me if you don't want to and I mean, if you choose not to, that's fine. That's entirely up to you. Umm, you're under arrest right now for murder and if you choose not to give me your version of the story and you're, you *401 want to exercise your right to an attorney you're welcome to do so. Umm, fact that the matter is as I'm sitting here to hear your side of the story, whatever that side of the story is. Now you know, lot of people like to tell their version of what happened. Umm, if that's ahh, not you then will just let the evidence stand as it is. You know, anyway we think we've got plenty of evidence. Haven't any problems there. So umm, we can let that stand or, or I can put in there your side of the story. It's up to you.
Parker: So I am under arrest?
Sgt.: Yes sir.
Parker: So now I'm not ... I'm not being held for an investigation or anything like that?
Sgt.: You're under arrest right now for murder. * * *
At appellant's initiation, he questioned Mortenson about the procedure for charging appellant. Appellant then stated:
Parker: But anyways ah, you know, I don't, I don't have any idea what you're talking about and I do wish to exercise my right but I was just thinkin' about something. You said there was somebody named Lonny [sic] Weldon and some other dude, right?
Appellant went on to suggest that Weldon should be considered as the suspect, and questioned Mortenson about the evidence the police found. The interview continued:
Sgt.: Well okay then, I'm assuming that you ah, from what you've said before that you choose not to speak with me any more.
Parker: I've talked to you. I just don't know nothin' about what you're talkin' about.
Sgt.: Okay. Well umm, tell me about your day, yesterday.
Parker: Why?
Sgt.: I'm interested.
Parker: What were you doing yesterday?
Sgt.: I was working yesterday. What were you doing?
Parker: I was watching TV, I don't remember.
Sgt.: Don't remember? What were you doing last night?
Parker: What do you mean?
Sgt.: Don't you know what you did last night?
Parker: I don't know.
Sgt.: How come?
Parker: Why don't I know?
Sgt.: Ya.
Parker: Because my lawyer advised me not to know.
Sgt.: Ahhhhhh, okay. What did you do today?
Parker: I got up and went to jail.
Sgt.: I know, what did you do this morning? Before you went to jail?
Parker: I don't know this is so dramatic I just can't remember, you know.
Sgt.: The dramas got ya. Huh?
Parker: Yeah.
Sgt.: I see. Hummm, so your lawyer advise you not to talk to me about what you did last night and the drama of what happened today is got you so upset you can't remember what you did this morning?
Parker: No, no I, that was nonsense, I just was talkin' shit. I, I don't know everything (inaudible).
Following continued discussion between appellant and Mortenson, appellant again initiated more dialogue:
Parker: Why did you guys pick me up?
Sgt.: Because we think we've got enough evidence to show that you committed a murder.
Parker: Why me though, what, what kind of evidence made you come and get me?
Sgt.: Well, I[sic] witnessed testimony for one thing.
Parker: So if I run up to somebody and say somebody murdered somebody then you go get them?
Sgt.: Well, if you show me a body, I might.
Parker: When you see the body why don't you get those persons that was ah, or who ever else she said.
*402 Sgt.: Humm. That's an idea. Then on the other hand ummm, why do you suppose that person had tell us that you did?
Parker: I don't know.
Sgt.: Why would they pick you?
Parker: Well if I did something I'd probably tell you somebody else did it.
Appellant was later charged with first-degree murder. Prior to trial, appellant stated his intent to present as part of his defense an alternative theory that Weldon was involved in Beavers' murder. To support this claim, appellant intended to introduce evidence that Weldon took drugs and money from Beavers' apartment the day after the murder. The state countered that such evidence would be irrelevant and an immaterial attack on Weldon's character. The trial court decided to delay ruling on the issue until it came up at trial, but allowed appellant to allude to such evidence in his opening statement.
At trial, appellant claimed in his opening statement that:
Now, there will be evidence in this trial that Lonnie Weldon the next day went to secure Mr. Beavers' drugs and money, that she came out with a lot of money and a lot of drugs from Mr. Beavers' house. Miss Weldon has a motive. And the evidence will show that.
When Weldon was called as a witness for the state, she identified appellant as the person who stabbed Beavers. On cross-examination, Weldon admitted that she knew that Beavers had drugs. Appellant attempted to question Weldon about going to Beavers' house the following day, but the trial court sustained the state's objection as beyond the scope of direct. However, appellant did ask Weldon if she stabbed Beavers, to which she responded "No."
In addition to Weldon, the state called Sgt. Mortenson and Dr. Susan Roe as witnesses. Mortenson testified that appellant's phone number was on Beavers' pager, and was probably the last number received before Beavers' death. Roe, the assistant medical examiner for Ramsey County and a board certified forensic pathologist, testified that her duties are "to perform autopsies, to determine cause and manner of death and then in some instances relate that to the legal system." Roe then described the nature of Beavers' wounds. She testified that Beavers had several "sharp force injuries," including a cut on his face to the right of his nose, three stab wounds in the chest, and three cuts on his right hand. The three cuts on his hand were consistent with the victim's attempt to struggle. One stab wound pierced a rib and lung, penetrating 13.5 cm. Another stab wound went through Beavers' heart, penetrating 11 cm. Roe testified that these two injuries would require a "moderate" to "great amount of force." The state then asked Roe if she had an opinion "as to whether or not these injuries could have been inflicted on Mr. Beavers by another person accidentally or would it have required a conscious act to stab him, intending to stab him?" Roe replied that the injuries required "a deliberate action."
Appellant also called Eleanor Medina as an alibi witness. Medina testified that she was playing cards with appellant all night until 2:30-2:45 a.m., then was "in the bedroom" with appellant until 3:30-4:00 a.m. However, in a previous written statement, Medina recalled that she played cards with appellant until 1:00 a.m., then went to bed alone, and next saw appellant when she woke up at 5:15 a.m.
Appellant testified in his own defense and denied killing Beavers. He testified at trial that he was playing cards and "in the bedroom" with Medina "all night." He admitted that he knew Weldon, his cousin, and that he previously made Beavers' "acquaintance." He also recalled that in the morning of the murder, he saw on television that he was wanted for a "murder or homicide" investigation. This testimony was not consistent with appellant's prior statements to the police, in which he claimed he did not know either Beavers or Weldon, what the police wanted him for, or what he did the night of the murder.
On cross-examination, the state asked appellant to recall his interview with Mortenson:
Q Do you remember [Mortenson] asking you if you knew Johnny Beavers?
A No, I don't recall.
*403 Q So you don't remember telling him you didn't know Johnny Beavers?
A No, but I do remember telling him that I couldn't talk to him unless an attorney was present.
* * * *
Q Do you remember telling him that you didn't know Johnny Beavers?
A I thought well, no, I don't remember telling him that.
Q Do you recall Sergeant Mortenson asking you to describe your day the day before December 17th?
At this point, appellant objected and the trial court held a hearing outside the presence of the jury on the issue of the admissibility of appellant's statements made during the police interview. The state wanted to introduce appellant's statements to Mortenson, as prior inconsistent statements for the purpose of impeaching appellant. Appellant objected to the admission of these statements, claiming that: (1) some of the statements were actually statements by appellant invoking his right to remain silent; (2) some of the statements were made after appellant made an ambiguous and equivocal invocation of his right to counsel; and (3) all of the statements were made without the presence or notification of appellant's attorney. The court overruled appellant's objections, and allowed the state to introduce appellant's prior inconsistent statements. On redirect examination, appellant claimed that he made those statements only "[b]ecause my lawyer told me not to speak to the police."
I.
We first consider appellant's claim that the trial court erred in denying appellant's pre-trial motion to dismiss the indictment for untimely filing. "In seeking to overturn an indictment, a criminal defendant bears a heavy burden, especially where the defendant has been found guilty beyond a reasonable doubt following a fair trial."[1] Appellant claims that he was entitled to dismissal of the indictment because the state failed to submit the case to a grand jury in accordance with the time requirements of Minn. R.Crim. P. 8.01 (1997). Under this rule, a case must be presented to the grand jury within 14 days when (1) the offense charged is a homicide and the prosecuting attorney notifies the court that the case will be presented to the grand jury; or (2) the offense is punishable by life imprisonment.
On December 18, 1996, appellant was charged by complaint with second-degree murder, which is not punishable by life imprisonment. In addition, the state did not file with the court any notification that the case would be presented to a grand jury. Therefore, the 14-day time limit did not initially apply. On March 21, 1997, appellant was notified by the state that the prosecuting attorney would submit the case to a grand jury for a first-degree murder indictment on April 2, 1997. The case was presented to the grand jury on that date, 13 days after notification. Thus, the state satisfied Minn. R.Crim. P. 8.01, and the trial court properly denied appellant's motion to dismiss the indictment.
II.
We next consider appellant's claim that the trial court erred in admitting into evidence appellant's prior inconsistent statements given during the custodial interrogation. Appellant argues that these statements were actually an invocation of his right to remain silent. Specifically, appellant objects to the admission of his statement "[c]an't answer," in response to "[d]o you know Lonny [sic] Weldon?" This statement was immediately followed by "[c]uz my lawyer told me not to [answer]." Appellant also objects to the admission of his statement "I don't know," in response to "[d]o you know what you did last night?" Again, this statement was followed by "[b]ecause my lawyer advised me not to know." Appellant claims that these statements were made to Mortenson not as a sincere response to his questions, but as an invocation of appellant's right to remain silent.
In Doyle v. Ohio, the United States Supreme Court held that the state may not impeach a testifying defendant with post-arrest *404 silence.[2] The Court reasoned that an arrestee's silence is "insolubly ambiguous" since such silence "may be nothing more than the arrestee's exercise of * * * Miranda rights."[3] However, in Anderson v. Charles, a more recent case, the United States Supreme Court made clear that the reasoning of Doyle only applies to actual silence, not prior inconsistent statements.[4] In Anderson, the Court held that "questions [that] were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement," are permissible and not prohibited by Doyle.[5] The Court provided the rationale for allowing into evidence a defendant's prior inconsistent statements:
Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.[6]
The Anderson Court then held that "Doyle does not require any such formalistic understanding of `silence,' and we find no reason to adopt such a view in this case."[7]
While appellant relies primarily on Doyle, the facts of the present case are analogous to those in Anderson. In both Anderson and this case, the state did not attempt to draw meaning from actual silence, but rather sought to introduce a prior inconsistent statement made by the testifying defendant. In the present case, the appellant did not exercise his right to remain silent as to the statement "I don't know," in response to a question about what he did the night before the stabbing. This statement was not an invocation of appellant's rights, and the trial court did not err in admitting the statement as a prior inconsistent statement.
Appellant's response of "[c]an't answer," as to whether or not he knew Weldon, is more troubling because the statement was immediately followed by "[c]uz my lawyer told me not to." However, even if we determine that the trial court erred in admitting appellant's statement, such a "determination that the district court erred in admitting [appellant's] statement does not automatically result in a reversal of his conviction and the granting of a new trial. The conviction may stand so long as the admission of the statement was harmless beyond a reasonable doubt."[8] In the present case, appellant's personal knowledge of Weldon was not really in doubt, since they are cousins. The admission of appellant's statement had no effect on the jury's verdict. Further, the state presented significant evidence to incriminate appellant, including the eyewitness testimony of Weldon. Given the weight and sufficiency of the evidence, we conclude that even if the trial court erred in admitting the statement, the error was harmless beyond a reasonable doubt.
III.
We next consider appellant's claim that the trial court erred in admitting into evidence appellant's statements made to the police following his ambiguous invocation of counsel. If at any time during interrogation, an accused invokes the right to counsel, all custodial interrogation must cease.[9] Further, after an accused requests counsel, the police may not reapproach the accused and any statements subsequently obtained may *405 not be introduced into evidence at trial.[10] In interpreting the federal Constitution, the United States Supreme Court has held that a request for counsel must be clear and unequivocal.[11]
In contrast, in interpreting the Minnesota Constitution we have held that an equivocal or ambiguous request for counsel requires questioning to cease, except for narrow questions designed to clarify the accused's true desires.[12] Under this interpretation, "the court must examine the language used by a defendant in determining whether a defendant has attempted to invoke the right to counsel."[13] However, once the right to counsel is invoked, a defendant waives his right to counsel when he "initiates further communication, exchanges, or conversations with the police."[14] Such initiation of further discussion by a defendant who has a full appreciation of his rights has been recognized to be a waiver.[15]
In this case, the appellant first made an ambiguous and equivocal request for counsel with the statement: "Ya. I, I just want you to know, I'm not talkin' to you, alright so, ahh, I want some people to be there when you talk to me anyway. Cuz ah...." Following this statement, Mortenson attempted to clarify appellant's desires with regard to his right to counsel, as is required by this court. However, the appellant continued to ask questions of Mortenson. In fact, following Mortenson's attempt to clarify appellant's ambiguous reference to counsel, appellant immediately asked four more questions about his arrest and the procedures that would follow.
Appellant later made a second ambiguous and equivocal request for counsel:
But anyways ah, you know, I don't, I don't have any idea what you're talking about and I do wish to exercise my right but I was just thinkin' about something. You said there was somebody named Lonny [sic] Weldon and some other dude, right?
Appellant immediately went on to suggest that Weldon should be considered as a suspect, and questioned Mortenson about the evidence the police found.
Given these facts, the questioning of appellant did not violate appellant's right to counsel, and the trial court properly admitted appellant's statements to Mortenson at trial.
IV.
We next consider appellant's claim that the trial court erroneously admitted the fruits of appellant's police interrogation because the police knew appellant was represented by counsel but made no effort to contact defense counsel. In support of this claim, appellant relies primarily on our decision in State v. Lefthand, in which this court held that "in-custody interrogation of a formally accused person who is represented by counsel should not proceed prior to notification of counsel or the presence of counsel."[16] However, in the instant case, appellant was not "formally accused" at the time of the disputed interview, since he had not been arraigned.[17] Therefore, the Lefthand decision, *406 which relies on the Sixth Amendment right to counsel, is inapplicable.
Appellant also argues that the facts of this case are analogous to those set forth in State v. Fossen, in which we held that in-custody interrogation of a defendant is improper when the police know that the defendant is represented by retained counsel, and counsel has advised the police that the defendant did not want to make any statements.[18] However, unlike the facts in Fossen, the present record does not indicate that appellant had retained counsel, or that appellant's counsel notified the police of appellant's representation. Given these facts, the police did not violate appellant's right to counsel, and the trial court did not err in admitting the fruits of the police interview.
V.
We now consider appellant's claim that the trial court erred in prohibiting appellant from introducing evidence of Weldon's possible culpability during cross-examination of Weldon at trial. When appellant attempted to implicate Weldon on cross-examination, the trial court sustained the state's objection as beyond the scope of direct examination. The scope of cross-examination is largely left to the discretion of the trial court, and the trial court's ruling will not be overturned absent a clear abuse of discretion.[19] Minn. R. Evid. 611(b) limits the scope of cross-examination to the subject matter of direct examination and to matters affecting the witness' credibility.
Appellant could have avoided this evidentiary problem by calling Weldon as a defense witness. In fact, when appellant was similarly limited by the scope of direct examination in seeking the alibi testimony of Eleanor Medina, who was originally called by the state, appellant called her as a defense witness. Further, we note that even without calling Weldon as a witness, the appellant was able to present to the jury sufficient evidence relating to the theory that Weldon was the murderer. Appellant even asked Weldon if she stabbed Beavers, to which she responded "No." Given the ability of defense counsel to call Weldon as a witness, and the broad discretion accorded to the trial court, the trial court did not err in limiting the scope of cross-examination.
VI.
Finally, we consider appellant's claim that the trial court erred in allowing expert testimony relating to the deliberate nature of the stabbing of the victim. Appellant claims that the testimony of medical examiner Roe improperly addressed the subject of criminal intent. The state asked Roe if she had an opinion, based on the physical nature of the stab wounds, "as to whether or not these injuries could have been inflicted on Mr. Beavers by another person accidentally or would it have required a conscious act to stab him, intending to stab him?" Roe replied that the injuries would require "a deliberate action."
As we have previously held, this type of expert testimony is permissible.[20] In State v. Bowers, the prosecutor asked a medical examiner if, based on the physical nature of a stab wound, "Are you able to tell us whether this was or was not a deliberate act?" and "Are you able to tell us whether this was an intentional act?" The medical examiner answered both questions in the affirmative. We held that such conclusions are proper when based on the physical nature of an injury.[21] Similarly, in the present case, the medical examiner's testimony was based on the physical nature of the injuries and was properly admitted.
Affirmed.
LANCASTER, J., took no part in the consideration or decision of this case.
NOTES
[1] State v. Pilcher, 472 N.W.2d 327, 336 (Minn. 1991).
[2] Doyle v. Ohio, 426 U.S. 610, 611, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).
[3] Id. at 617, 96 S. Ct. 2240.
[4] Anderson v. Charles, 447 U.S. 404, 408, 100 S. Ct. 2180, 65 L. Ed. 2d 222 (1980).
[5] Id. at 409, 100 S. Ct. 2180.
[6] Id. at 408, 100 S. Ct. 2180.
[7] Id. at 409, 100 S. Ct. 2180.
[8] State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997) (citing State v. Roberts, 296 Minn. 347, 353, 208 N.W.2d 744, 747 (1973); State v. Jones, 556 N.W.2d 903, 910 (Minn.1996)).
[9] Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[10] Edwards v. Arizona, 451 U.S. 477, 485-87, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).
[11] Davis v. United States, 512 U.S. 452, 458-62, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994).
[12] Juarez, 572 N.W.2d at 290 (citing State v. Robinson, 427 N.W.2d 217, 223 (Minn.1988)).
[13] State v. Williams, 535 N.W.2d 277, 283 (Minn. 1995).
[14] Edwards, 451 U.S. at 484-85, 101 S. Ct. 1880; see also Oregon v. Bradshaw, 462 U.S. 1039, 1042-44, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983) (holding that defendant's invocation of his right to counsel was waived by the question, "Well, what is going to happen to me now?").
[15] Pilcher, 472 N.W.2d at 332.
[16] State v. Lefthand, 488 N.W.2d 799, 801-02 (Minn.1992) (citing State v. Renfrew, 280 Minn. 276, 159 N.W.2d 111 (1968)).
[17] Under the Sixth Amendment, "[b]oth the United States and Minnesota Constitutions guarantee a right of legal representation to anyone charged with a crime. [Citations omitted.] The right attaches when the state initiates adversary judicial proceedings against an accused `by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" State v. Willis, 559 N.W.2d 693, 697-98 (Minn.1997) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972)).
[18] State v. Fossen, 312 Minn. 414, 417, 255 N.W.2d 357, 359 (1977).
[19] State v. Dille, 258 N.W.2d 565, 569 (Minn. 1977).
[20] State v. Bowers, 482 N.W.2d 774, 778 (Minn. 1992).
[21] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619689/ | 980 S.W.2d 857 (1998)
John DUZICH, Appellant,
v.
MARINE OFFICE OF AMERICA CORP., Fidelity & Casualty Company of New York and Coastal Bend Production Credit Association, Jointly and Severally, Appellees.
No. 13-96-463-CV.
Court of Appeals of Texas, Corpus Christi.
October 8, 1998.
Rehearing Overruled December 30, 1998.
*860 Gail D. C. Dorn, William H. Berry, Jr., Corpus Christi, for Appellant.
Gregory T. Perkes, Lee Casstevens, David Atnip, Wood, Burney, Cohn & Viles, Gary Norton, Frederick J. McCutchon, Wood, Boykin & Wolter, Corpus Christi, for Appellee.
Before DORSEY, YAÑEZ and RODRIGUEZ, JJ.
OPINION
YANEZ, Judge.
This appeal stems from a fisherman's ill-fated lawsuit against his insurers, Marine Office of America Corp. (MOAC), Fidelity & Casualty Co. (Fidelity), and the mortgagees of his vessel, Coastal Plains Production Credit Association (Coastal Plains),[1] and Farm Credit Bank (FCB).
John Duzich claims his insurers wrongfully failed to defend or indemnify him in collection proceedings that flowed from a judgment rendered against him in a third party action that was otherwise covered by his insurance policy. Duzich ultimately settled that debt, together with at least part of those of his mortgagee, in federal court. He then brought suit against his insurers on multiple theories.[2] Also, after receiving a subsequent demand letter from his mortgagee, he sought a judicial declaration that any debts he owed on the vessel were foreclosed by agreed judgment in a prior federal court proceeding. After the mortgagees filed a counterclaim for the deficiency, Duzich added several affirmative claims against them, including usury, unfair debt collection practices, violations of the DTPA, and breach of contract. All parties moved for summary judgment. Both the insurers and the mortgagees obtained summary judgment in their favor, and the court ordered Duzich to pay $289,715.23 on the note, plus costs and attorney's fees. By nineteen points of error, he appeals the judgment. We affirm in part, reverse and render in part, and reverse and remand in part.
*861 FACTUAL HISTORY
In 1980, Duzich owned and operated a fishing vessel, the Miss Suni Suzanne. Duzich and the vessel were insured under two policies issued and adjusted by MOAC, which named Fidelity as the insurer: one was a hull policy protecting the vessel, the other a personal injury policy protecting against suits from third parties. During an outing off the coast of Virginia and North Carolina on December 1, 1980, a seaman working on the vessel, Ronald Baham, sustained a minor injury. At Baham's request, Duzich brought the vessel to shore and escorted Baham to a hospital for treatment. From the hospital, he telephoned Jim Cox, of Whitney-Vaky Insurance of the incident, as he had on prior occasions. Duzich had purchased the policy from Whitney-Vaky, and he believed that Cox was Fidelity's local agent. Cox instructed Duzich to forward any papers in any action that might commence thereafter to him.
Duzich heard nothing else about the matter until his boat was arrested while in port on January 8, 1982. He was informed at that time that Baham had obtained a default judgment against him and the vessel on November 8, 1981, in a federal court in Virginia. A U.S. Marshal's bond was set, but Duzich was unable to tender that amount. Instead, Duzich notified Cox of the arrest by telephone, and wrote to Cox on January 19, 1982, demanding a defense or settlement of the forfeiture proceedings by January 24, 1982.
Apparently, Cox forwarded the letter to James Buchanan, counsel for MOAC, because Duzich received a letter dated January 21 from Buchanan informing him that his notice of the suit was untimely, and that MOAC would probably not undertake any defense for that reason, but that it could not determine the issue by January 22[sic], as requested. On January 25, Buchanan notified Duzich's attorney that Duzich had an indemnification policy, rather than a general liability policy that required a defense. He encouraged Duzich to settle the matter in accordance with his duties to mitigate damages, and said that after any settlement, Duzich could again present his claim, at which point MOAC would make a coverage determination. Three days later, Buchanan sent another letter, indicating MOAC had decided to deny coverage "based upon the late reporting of the claim" after default, but again suggested that his claim could be resubmitted if Duzich was successful in having the Virginia judgment set aside. By separate letter of that same date, Buchanan declined Duzich's request that it pay a bond to release the vessel from the marshal's custody.
During this time, Duzich was unable to earn his livelihood, and he fell behind on his boat mortgage payments. Coastal Bend, which owned the note at the time, accelerated his debt and demanded full payment. In July 1982, it brought a separate action in the United States District Court for the Southern District of Texas against Duzich in personam, and against the boat in rem, seeking to recover the balance due on the note.[3] This cause was soon consolidated with Baham's federal action.
On July 8, 1982, Duzich's attorney informed Buchanan by letter that the federal court in Corpus Christi was to conduct a hearing addressing the validity of the Virginia judgment, and he asked whether MOAC had determined if it would defend Duzich if he successfully attacked the Virginia judgment. Apparently neither Duzich nor his attorney ever heard from MOAC on this issue. On October 4, 1982, Duzich's attorney notified Buchanan by letter that the federal district court in Texas had refused to follow the Virginia judgment, and requested that MOAC pay Duzich's attorney's fees.
Left without coverage, Duzich was forced to settle the Baham and Coastal actions to limit his exposure.[4] On June 11, 1984, an agreed judgment in the consolidated federal actions was entered. The judgment recited *862 the following facts: The Miss Suni Suzanne was sold on November 12, 1982, at public auction. Of the total of $29,500 that was paid into the registry of the court, the U.S. Marshal was paid $15,619.85 (including the cost of dockage), leaving a balance of $13,880.15: $2,500 to Coastal Bend, $7,250 to Baham's attorneys, and $4,130.15 to Baham. It was also agreed that Duzich would be given credit of $75,000 on his promissory note for the Miss Suni Suzanne, as this was the bid price of Coastal Bend for the purchase of the boat. The dismissal order indicated "all stipulations and undertakings are canceled and that the principals and sureties thereon are discharged of record."
Duzich's Lawsuit
On June 10, 1985, Duzich filed his lawsuit against MOAC, Fidelity, and Whitney-Vaky.[5] At the heart of the claims was that MOAC and Fidelity refused to defend Duzich against a judgment erroneously entered against him in Virginia throughout the course of the collection proceedings in Texas. Essentially, Duzich maintains he notified MOAC as soon as he learned of the default judgment because he was not aware of any claims prior to that time. Despite his timely notice, MOAC declined to assist his efforts to have the default judgment set aside, post bond necessary to release his boat from the U.S. Marshal's custody, or defend him against other collections efforts that followed the default judgment. MOAC's argument to the trial court was that it was never required to provide a defense for Duzich because he only had an indemnity policy (distinct from a general liability policy), and whatever duties it might otherwise have had under the policy were relieved by Duzich's failure to provide timely notice of the accident/claim filed against him. It also argued that a specific policy exclusion exempted forfeitures from coverage.
In addition to his claims against MOAC and Fidelity, Duzich also sought declaratory relief against Coastal, then FCB (after FCB purchased the note), that he was no longer liable on the mortgage note which those entities held on his boat. This action was most likely prompted by a demand letter Coastal sent on June 5, 1985, requesting payment of an alleged deficiency of $173,448.26 on the note. After Coastal had filed its in rem action against the boat, and its case was consolidated with Baham's, the boat was eventually sold at a foreclosure sale for $75,000 (purchased by Coastal).
By this suit, Duzich sought declaration that he was not liable on the note, and that any attempt to collect on the note would be barred by res judicata and collateral estoppel. In January 1989, Coastal Bend filed a counterclaim alleging Duzich still owed more than $213,300 on the note, and that the order of dismissal did not relieve him of any personal liability. Nearly four years later, in January 1993, Duzich added claims against Coastal of intentional infliction of emotional distress, negligence and gross negligence, usury, and violations of federal lending laws.
All claims were finally adjudicated at three different hearings in 1995 and 1996. The trial court granted a partial summary judgment in favor of FCB and Coastal on September 18, 1995, disposing of "all claims asserted by Plaintiffs and granting FCB of Texas affirmative relief." All that remained in these cases were the fact issues regarding attorney's fees owed to FCB. The court granted summary judgment in favor of MOAC and Fidelity on January 31, 1996. After hearing FCB's claim for attorneys' fees, it signed a final judgment on May 28, 1996, awarding FCB $289,715.28, together with interest in the amount of $33.94 per day from July 15, 1995 to September 18, 1995, plus interest on the total amount accruing at ten percent until finally paid. It also ordered Duzich to pay $15,000 for FCB's attorneys' fees, plus contingent fees in the event of an appeal.
POINTS ON APPEAL
Appellant brings nineteen points of error on appeal. Eleven points attack the court's ruling with respect to his claims against *863 MOAC and Fidelity. He contends that he should have had judgment rendered in his favor, or in the alternative, he argues that fact issues on each of his claims preclude summary judgment. With respect to FCB, he argues in eight points that the court erred because he was no longer personally liable on the note, based on principals of res judicata and collateral estoppel, that limitations barred Coastal Bend and FCB's claims, and that Duzich was entitled to affirmative relief from them. For ease of discussion, we will discuss the points of error regarding Duzich's claims against MOAC and Fidelity together, then discuss his points regarding his claims against FCB and Coastal Bend together.
STANDARD OF REVIEW
The standard of review for summary judgments is well-established:
1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). When both parties file competing motions for summary judgment and one is granted and the other denied, the reviewing court will determine all issues presented, including the order denying the losing party's motion. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). Each party is required to carry its own burden as the movant and, in response to the other party's motion, as the nonmovant. James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701, 703 (Tex.App.Houston [1st Dist.] 1987, writ denied). Because both parties moved for summary judgment, we must review the summary judgment proof presented by both sides and determine all questions presented. See Commissioners Ct. of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997). The court's order does not specify the grounds upon which summary judgment was granted, so we will affirm the judgment if any theories advanced in the motions are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). The proper scope for a trial court's review of evidence for a summary judgment encompasses all evidence on file at the time of the hearing or filed after the hearing and before judgment with the permission of the court. Tex.R. Civ. P. 166a(c); Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex.App.Corpus Christi 1988, no writ).
Duzich's theories for recovery had several overlapping elements. To recover for breach of contract, he needed to prove: (1) the existence of a contract, (2) compliance with its terms, and (3) breach of the contract. Bailey, Vaught, Robertson and Co. v. Remington Invs., Inc., 888 S.W.2d 860, 865 (Tex. App.Dallas 1994, no writ). An insurer breaches its common law duty of good faith and fair dealing by denying a claim when the insurer's liability has become reasonably clear. State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex.1998); Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 56 (Tex.1997). The plaintiff in a bad faith case must therefore prove that "the insurer was actually aware that its action would probably result in extraordinary harm not ordinarily associated with breach of contract or bad faith denial of a claimsuch as death, grievous physical injury, or financial ruin." Giles, 950 S.W.2d at 54. An insured may bring a private action based on unfair settlement practices against its insurer under article 21.21 of the Texas Insurance Code, which enumerates unfair practices under the Code and the consequences of those acts. TEX. INS.CODE ANN. art. 21.21 § 16 (Vernon 1981 & Supp.1998); Vail v. Mutual Ins. Co., 754 S.W.2d 129, 134 (Tex.1988); Rocor Int'l, Inc. v. National Union Fire Ins. Co., 966 S.W.2d 559, 1998 WL 9505,*4 (Tex.App.San Antonio 1998, no pet. h.).
POINTS OF ERROR RELATED TO MOAC AND FIDELITY
Duzich maintains in point of error one that the trial court erred in granting summary *864 judgment for MOAC and Fidelity because they did not submit proper summary judgment evidence. Specifically, he contends they relied on conclusory factual assertions, as well as on pleadings, neither of which are competent summary judgment evidence. See TEX.R. CIV. P. 166a. By his second point, he contends that his alleged failure to comply with the warranty provisions of the policy is not a valid defense for the insurers' failure to fulfill their obligations under the policy.[6] By point three, Duzich contends the court should have found, as a matter of law that (1) MOAC and Fidelity had a duty to pay the $8,700 default judgment, (2) MOAC had a duty to defend Duzich, and (3) MOAC had a duty to post bond. In the alternative, Duzich maintains that fact issues exist on each of these grounds which preclude summary judgment. He also contends the court should have found as a matter of law that MOAC and Fidelity had a duty to pay the $29,500 Texas judgment plus Duzich's attorney's fees. By point eight, he contends facts issues exist regarding his Insurance Code, DTPA, and tort claims, based on the insurers' failure to pay the default judgment, and their "limited indemnity" assertions, and their refusal to assist in Duzich's defense in the suits against him and his vessel.
We begin by addressing whether Baham's injury fell within the scope of coverage. Duzich had two policies: the first, described as hull policy no. HH 04 37 74, generally protected against damages caused to his vessel from the perils of sea, while the second, described as personal injury policy no. HH 04 37 75, protected against liability for injuries to persons or property caused by his vessel.[7] The personal injury policy provided that the insurer would pay "such sums as the assured [Duzich] becomes legally liable to pay on account of injury to any person," together with "costs and expenses, incurred with its approval, of investing and/or defending any claim or suit against the assured arising out of a liability or an alleged availability of the assured covered by the policy." Given that Baham suffered his injury on the vessel while out at sea, it is clear that his claims fell within the scope of coverage of the personal injury policy.[8]
We next address MOAC and Fidelity's principal defense, that Duzich failed to comply with a condition precedent to its liability by failing to satisfy his warranty to promptly notify it of Baham's claim. The personal injury policy contained the following warranty provision:
Warranted that in the event of any occurrence which could result in a claim under this policy the assured will notify this Company upon receiving notice thereof and forward to this Company as soon as practical all communications, processes, pleadings or other legal papers or documents related to such occurrence. (emphasis ours).
MOAC and Fidelity argued that, because Duzich admittedly did not notify either of them of the Baham claim until after a default judgment had already been entered against him, they were excused from any liability for failing to represent him upon such untimely notification. As authority, they cite several cases, wherein courts have construed notice by an insured to an insurer of a claim after entry of default judgment to be untimely as a matter of law. Upon close review of those cases, the policy, and the facts of this case, we believe fact issues exist with respect to Duzich's compliance with the warranty provision, and consequently, as to the viability of the "noncompliance with warranty" defense.
The policy does not require that an actual claim be filed before the insured is required to give notice. Rather, it requires notice soon after an event which could give rise to a claim. It follows, then, that upon his notice of the actual occurrence (injury to Baham), Duzich should have notified MOAC and Fidelity *865 of any occurrence, and forwarded any papers upon receiving them.
Duzich offered proof by way of affidavit that he notified Jim Cox, of Whitney-Vaky, about Baham's injury on the date it occurred. Cox said he would handle it. Although the insurers argue Cox was not their agent for receipt of claim notification, they provided no summary judgment proof of this. Counsel for MOAC and Fidelity also represented at oral argument that no such person was named anywhere in the policy. It is true that, generally speaking, an insurance broker is considered the agent of the insured; if the insured reports a claim to the broker, but the broker fails to report it to the insurer, the insured is not relieved of his notice obligations. JOHN ALAN APPLEMAN AND JEAN APPLEMAN, INSURANCE LAW AND PRACTICE § 5089.55 (1981); Hawkeye-Sec. Ins. Co. v. Davis, 277 F.2d 765, 768 (8th Cir.1960). However, an insurance company may be estopped to deny that such broker is its own agent when that person has authority to perform various functions on the insurer's behalf. See, e.g., Kootenai County v. Western Cas. & Sur., 113 Idaho 908, 750 P.2d 87 (1988) (agent who (1) took applications, (2) countersigned and delivered policies, (3) collected and remitted premiums, and (4) transmitted claims on behalf of the insurer, was clothed with apparent authority to bind the insurer). Duzich demonstrated that he had previously submitted claims to Cox, and MOAC and Fidelity had processed claims when notified through Cox.
Duzich presented summary judgment evidence by way of affidavit that indicated he had always informed Cox of potential claims, and upon doing so, third party claims were always taken care of from MOAC's and Fidelity's end. There had never been a problem with Duzich's reporting potential claims in this manner, and he had never notified any agent other than Cox or someone at Whitney-Vaky in the past. We conclude there is a fact issue as to whether Cox was clothed with apparent authority to act as MOAC's and Fidelity's agent for receipt of claims. Contrast Abe's Colony Club, Inc. v. C & W Underwriters, Inc., 852 S.W.2d 86, 90 (Tex. App.Fort Worth 1993, writ denied) (plaintiff presented no evidence of insurer bestowing apparent authority upon selling agent). Therefore, whether Duzich timely notified his insurers is a question of fact.
Even if it Cox was not the registered agent for MOAC and Fidelity, a fact issue exists regarding whether Duzich's notice after default judgment, under the circumstances, complied with the policy. Because the resolution of this issue requires us to construe the policy, we will set out the rules of construction. Insurance contracts are governed by the same rules of construction as other contracts, which require the courts to strive to give effect to the written expression of the parties' intent. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995); Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994); Dickson v. State Farm Lloyds, 944 S.W.2d 666, 668 (Tex.App.Corpus Christi 1997, no writ). We construe all parts of the policy together to effectuate this intent. See American-Amicable Life Ins. Co. v. Lawson, 419 S.W.2d 823, 826 (Tex.1967).
When the language of a policy is susceptible to more than one reasonable construction, it is patently ambiguous, and the courts will apply the construction which favors the insured and permits recovery. Warrilow v. Norrell, 791 S.W.2d 515, 524 (Tex.App.Corpus Christi 1989, writ denied) (citing Glover v. National Ins. Underwriters, 545 S.W.2d 755, 761 (Tex.1977)). A term in a policy may not be ambiguous on its face, yet uncertainty may arise when the term is applied to the facts of the case. Warrilow, 791 S.W.2d at 524 (citingRamsay v. Maryland Am. Gen. Ins. Co., 533 S.W.2d 344 (Tex. 1976)). If an insurance policy remains ambiguous despite the rules of interpretation, courts are to construe its language against the insurer in a manner that favors coverage. Beaston, 907 S.W.2d at 433; Ramsay v. Maryland Am. Gen. Ins. Co., 533 S.W.2d 344, 349 (Tex.1976); Dickson, 944 S.W.2d at 668.
It is the general rule that a provision in an insurance policy requiring the insured to immediately forward every demand, notice, summons, or other process of a claim being brought against it, serves as a *866 condition precedent to an insurer's liability under the policy. See Ohio Cas. Group v. Risinger, 960 S.W.2d 708, 710 (Tex.App. Tyler 1997, writ denied). The purpose of these provisions is to enable the insurer to control the litigation and interpose a defense, and to advise the insurer that the insured is being sued, and that it is expected to timely file an answer. See Weaver v. Hartford Acc. & Indem. Co., 570 S.W.2d 367, 369 (Tex. 1978).
The situation in the instant case is different than in others addressed by the supreme court, which concerned ordinary general liability policies that expressly require insurers to both defend and indemnify. As the insurers admit, the policy in this case only required the insurer to indemnify; therefore, the prejudice from untimely notice would arguably be much less severe in the instant case than in others, were the insurers were obliged, but denied the opportunity, to defend the insured. The phrase "as soon as practicable," as used in the notice provision of general liability policies means notice within a reasonable time, and what is a reasonable time depends upon the facts and circumstances in each particular case. Broussard v. Lumbermens Mut. Cas. Co., 582 S.W.2d 261, 262-63 (Tex.Civ.App.Beaumont 1979, no writ); Insurance Co. of N. Am. v. Asarco, Inc., 562 S.W.2d 557, 561 (Tex.Civ.App. Corpus Christi 1978, writ ref'd n.r.e.); Employers Cas. Co. v. Scott Elec. Co., 513 S.W.2d 642, 645 (Tex.Civ.App.Corpus Christi 1974, no writ).
If the insurer is prejudiced by the insured's failure to comply with such a provision, then the insurer has no obligation under the policy.[9]See Liberty Mut. Ins. Co. v. Cruz, 883 S.W.2d 164, 165 (Tex.1993) (insured's failure to notify insurer of suit does not relieve insurer from liability for underlying judgment unless the lack of notice prejudices insurer); see also Risinger, 960 S.W.2d at 710; E.B. Smith Co. v. U.S. Fidelity and Guar. Co., 850 S.W.2d 621, 625 (Tex.App. Corpus Christi 1993, writ denied). Whether an insurer is prejudiced by an untimely notice is generally a question of fact. See P.G. Bell Co. v. U.S. Fidelity and Guar. Co., 853 S.W.2d 187, 192 (Tex.App.Corpus Christi 1993, no writ). In the instant case, there is a fact question as to (1) whether insurers were actually prejudiced at the time they learned of default, given Duzich's success at that point in challenging its validity, and (2) whether the prejudice they suffered derived from Duzich's negligence, or from some other source (such as in Baham's failure to properly serve Duzich).
Appellees rely on the decisions of certain Texas courts which have held that failure to give notice to the insurance company of a claim, until after a default judgment is entered, is prejudicial to the insurance company as a matter of law. See Cruz, 883 S.W.2d at 165; Kimble v. Aetna Cas. and Sur. Co., 767 S.W.2d 846, 850 (Tex.App.Amarillo 1989, writ denied). Adherence to such a bright-line rule in this case, however, would not further the purpose of such a clause, nor would it be in accord with the canon of construing ambiguities in contracts against the drafter. In each case cited by appellees, the insureds were aware that a suit was pending against them, yet through negligence, failed to notify their insurance companies. See Weaver v. Hartford, 570 S.W.2d 367 (Tex.1978) (insured was served but left the papers in the office of the plaintiff's attorney, and never forwarded them to the insurance company); Chiles v. Chubb Lloyds Ins., 858 S.W.2d 633 (Tex.App.Houston [1st Dist.] 1993, writ denied) (insured did not notify his insurance company of the suit until after the trial which found him liable was completed); Members Mut. Ins. Co. v. Cutaia, 476 S.W.2d 278 (Tex.1972) (insured did not forward copies of the service to his insurance *867 company); Kimble, 767 S.W.2d 846 (defendant did not notify insurance company of suit until after entry of default judgment); Dairyland County Mut. Ins. Co., v. Roman, 498 S.W.2d 154 (Tex.1973) (untimely defense was proffered that, because insured had violated the policy by not providing insurance company with written notice of the accident, it should not be liable for damages incurred in third party action against insured). In all of these cases, the insureds were aware they were being sued, and had been served process of the suit. Their failure to forward the paperwork to their insurance companies could be attributed to their own negligence. Such is not the circumstance in the case at hand, where Duzich has attested that he was never served, or otherwise notified, of the Baham action until after entry of the judgment.
Moreover, even if notice was not deemed timely, a recognized defense to the late notice exists where the insured did not know of the proceedings against him until entry of a default judgment. See TEX. JUR.3d Insurance § 947; Employers Cas. Co. v. Scott, 513 S.W.2d 642 (Tex.Civ.App.Corpus Christi 1974, no writ). Although there are no Texas cases with an analogous scenario, several courts in other states have concluded that an insured who does not have notice of a claim against him until after entry of a default judgment has a legitimate excuse for failing to timely notify his insurer of any such claim, and the insurer is not excused from its duty to defend. See e.g.; Brown v. Donders, 42 Ohio St. 2d 133, 326 N.E.2d 647 (1975); Commercial Contractors Corp. v. Am. Ins. Co., 152 Conn. 31, 202 A.2d 498 (1964); St. Paul Mercury Indem. Co. v. Valdosta, 253 F.2d 667 (5th Cir.1958). Generally, the sufficiency of the excuse proffered by an insured for his failure to timely notify the insured of a claim is a question of fact for a jury to determine, unless the facts are undisputed. APPELMAN, INS. LAW AND PRACT. § 4731.
Construing the facts presented in the instant case in a light most favorable to Duzich, there is no dispute that he did not receive notice of any claim, written or otherwise, until after entry of a default judgment. However, there are fact issues regarding whether Cox was the insurer's actual or apparent agent, whether Duzich's notice to Cox before judgment, or to MOAC after default judgment was timely, and if not, whether he had a viable defense to the untimely notice. The warranty required him to forward all "papers, ... as soon as practical." If Duzich was not served with any legal papers until after default judgment had been entered, and he promptly notified his insurers upon his notification of legal proceedings, we cannot say that, as a matter of law, he did not comply with the warranty provision.
In determining whether the insurers had a reasonable basis for denying Duzich's claim, we consider the facts before the insurer at the time the claim is denied. Viles v. Security Nat'l Ins. Co., 788 S.W.2d 566, 567 (Tex.1990). The correspondence offered as summary judgment evidence by Duzich indicates that MOAC and Fidelity were aware of the circumstances of Baham's actions prior to their decision to deny coverage. Whether Duzich had previously reported claims through Whitney-Vaky, and whether the insurers accepted this type of reporting in the past is disputed. When it is disputed whether there was any reasonable basis in existence to support the denial of the claim, a jury issue is present. Nationwide Mut. Ins. Co. v. Crowe, 857 S.W.2d 644, 648 (Tex. App.Houston [14th Dist.] 1993), judgment set aside per agreement, 863 S.W.2d 462 (Tex.1993).
DUTY TO DEFEND
We next consider Duzich's contention that MOAC and Fidelity had a duty to defend him in the Baham action, and the collection proceedings that ensued, and also to post bond to release his vessel, so that he could continue to earn a living pending resolution of the claims. MOAC and Fidelity argued that their policy did not require them to defend him in any action, only to indemnify. They also alleged that they had no duty to post bond, and that the seizure of Duzich's vessel was a contingency that was specifically excepted from coverage. Again, resolution of these issues requires us to examine the policy itself, and construe it according to the *868 rules for the interpretation of insurance policies.
SPECIFIC EXCLUSION?
MOAC asserted its policy specifically excluded from coverage payments related to the arrest and seizure of the vessel. The paragraph relied upon by MOAC reads, in its entirety,
Any loss, damage, or expense sustained by reason of any taking of the vessel by requisition or otherwise, civil war, revolution, rebellion, or insurrection, or civil strife arising therefrom, capture, seizure, arrest, restraint or detainment, or the consequences thereof or of any attempt or threat; or sustained in consequence of military, naval or air action by force of arms; or sustained or caused by mines or torpedos or other missiles or engines of war ... and any such loss, damage and expense shall be excluded from this policy without regard to whether the assured's liability in respect thereof is based on negligence or otherwise, and whether in time of peace....
The clause which MOAC cites as an exclusion appears to apply to situations of warfare and international strife, where the vessel may be damaged or seized. Given the context of the exclusion relied upon by MOAC, it does not appear to apply to the situation of an in rem action brought in satisfaction of a judgment debt. Such conclusion is fortified by comparing it to the language obliging MOAC to pay costs and expenses incurred in defending suit against Duzich or arising out of his liability. Because the meaning of the exclusion is subject to more than one interpretation, we construe it against the insurers. See Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex.1987); Ohio Cas. Group of Ins. Companies v. Chavez, 942 S.W.2d 654, 658 (Tex.App.Houston [14th Dist.] 1997, writ denied).
Moreover, Duzich averred that "anytime I had claims or needed to make a claim, it was always made to MOAC through Whitney-Vaky, and I was always contacted by an adjuster who would identify themselves as representing MOAC." He also indicated that MOAC had always provided a defense for him in third party actions. Given that Duzich's evidence showed that he had notified Cox of injuries occurring on his boat on the day of Baham's injury, and that MOAC always represented him when he notified them of claims in this manner, and that MOAC and Fidelity have not presented evidence which disproves the role played by Cox and Whitney-Vaky, we conclude that the pattern and practice observed by Duzich and the insurance companies indicate that his conduct was, at least when viewed in a light most favorable to him, in full compliance with the policy's warranty provision.
After reading the context of the provision referenced by MOAC, and the provisions located elsewhere, we believe there is a fact issue with respect to the insurers' duties under the policy. Clearly, the forfeiture of the boat, the incurrence of costs associated with its seizure, and the costs incurred by Duzich in defending against the Virginia action, together with Coastal Bend's collection proceedings, all flowed from Baham's personal injury action. Viewed this way, these costs are provided for under the policy, as referenced above.
By point of error four, Duzich complains the court erred in granting summary judgment against his DTPA and Insurance Code claims because appellees did not conclusively establish that they were barred by the statute of limitations, nor did they raise issues related to his claims.
A summary judgment is proper for a defendant if it conclusively establishes all elements of an affirmative defense. Munoz v. Gulf Oil Co., 693 S.W.2d 372, 373 (Tex. 1984). When a defendant moves for summary judgment on the basis of limitations, it must prove that limitations have run as a matter of law. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). Once the defendant establishes the right to summary judgment, the plaintiff must then put forward summary judgment evidence to avoid the limitations defense. Palmer v. Enserch Corp., 728 S.W.2d 431, 435 (Tex.App.Austin 1987, writ ref'd n.r.e.). If the plaintiff responds with evidence creating a fact question on the tolling of limitations or the accrual *869 of the cause of action, the defendant must conclusively negate the tolling of the statute or the plaintiff's position on the accrual of the cause of action. See id. at 436.
An action brought under the DTPA must commence within two years after the date of the false, misleading or deceptive act or practice, or when the use of reasonable diligence would have discovered the violation. TEX. BUS. & COMM.CODE ANN. § 17.565 (Vernon 1987). A cause of action against an insurer for breach of the common law duty of good faith and fair dealing and violations of the DTPA accrue on the date the insurer denies the insurance claim or denies coverage. Celtic Life Ins. Co. v. Coats, 885 S.W.2d 96, 100 (Tex.1994); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.1990); Stevens v. State Farm Fire and Cas. Co., 929 S.W.2d 665, 670-71 (Tex.App. Texarkana 1996, writ denied); Burton v. State Farm Auto. Ins. Co., 869 F. Supp. 480 (S.D.Tex.1994), aff'd, 66 F.3d 319 (5th Cir. 1995).
Duzich alleged numerous acts upon which DTPA claims may have been based. However, it appears that all of Duzich's contentions are essentially rooted in MOAC and Fidelity's failure to fulfill their obligations under the policy, or, alternatively, their failure to act in good faith and deal fairly with Duzich. He first learned of his insurers' posture when he received his first letter from Buchanan dated January 21, 1982, indicating that coverage probably would be denied based on untimely notice. He received ultimate confirmation of this posture by letter dated January 28, 1982, when Buchanan informed Duzich that MOAC had decided to deny coverage.
Duzich did not file the instant lawsuit until June 1985, more than two years after MOAC and Fidelity's rejection of his claim. Although Duzich maintains the misrepresentations were continuing, he has not identified any particular misrepresentations or deceptive actions that occurred within the applicable limitations period (i.e. within the two years prior to his filing the instant lawsuit). Accordingly, we conclude that his DTPA claims were barred by limitations.
With respect to Duzich's contention that his claims under article 21.21 of the Insurance code were not barred by limitations, we refer to the version of the statute that applies to the cause. The applicable limitations provision of the insurance code in effect at the time required that a suit against an insurer be instituted within two years of the time the damages were incurred, not when the conduct occurred. See Act of May 21, 1973, 63d Leg., R.S., ch. 143, § 2, 1973 Tex. Gen. Laws 322, 338, amended by Act of March 13, 1985, 69th Leg., R.S., ch. 22, §§ 3-4, 1985 Tex. Gen. Laws 395, 395-96. Unlike the bad faith and DTPA claims, the limitations period did not commence with the date on which the actionable conduct occurred (although under the current version of the insurance code it does).
Thus, in the instant case, the damages alleged by Duzich include the forfeiture and sale of his boat and the entry of an agreed judgment in the federal action. His boat was sold on October 20, 1982. The agreed judgment was entered on June 11, 1984. He sued MOAC and Fidelity on June 1985. Viewing Duzich's consent decree acknowledging the foreclosure of the vessel and obliging him to pay the proceeds to Baham, the U.S. Marshal, and MOAC as the relevant date of his damages being realized, we hold the suit was within the applicable limitations period for claims arising under the insurance code.
MOAC and Fidelity did not raise the statute of limitations as a defense to Duzich's claim for a breach the common law duty of good faith and fair dealing, and therefore summary judgment could not be granted on that basis. Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983); Villacana v. Campbell, 929 S.W.2d 69, 76 (Tex.App.Corpus Christi 1996, writ denied).
Point of error four is overruled with respect to the DTPA claims, but is sustained with respect to the insurance code and good faith and fair dealing claims.
By point five, Duzich contends the court erred in concluding that the Miss Suni Suzanne is not an assured under the policy. *870 The court did not make any explicit finding with respect to this issue, but it appears that Duzich is relying on MOAC's duty to indemnify the "assured," and the vessel was the defendant in the in rem actions. The policy issued by Fidelity specifically named "the assured." At the top of each policy, next to a line styled "assured," the name John Duzich appears. The Miss Suni Suzanne is not mentioned. Based on the clear language of the policy, the Miss Suni Suzanne is not an assured under the policy. However, for reasons set out above, a fact issue exists as to whether, and to what extent, MOAC and Fidelity were required to participate in the in rem proceedings, which clearly flowed from Duzich's liability to Baham.
By point six, Duzich contends the court erred because the costs and expenses related to the arrest of the vessel and its ultimate loss were caused by MOAC's and Fidelity's negligence and wrongful conduct. We need not address this point because appellant has not presented argument and authorities under this point as required by TEX.R.APP. P. 38.1(h).
By point seven, he contends that both MOAC and Fidelity are proper parties to his and the vessel's claims because MOAC was an issuer of the policies, adjusted the claim, denied the claim, and MOAC and Fidelity are responsible for any loss under the policy. We agree that fact issues exist with respect to which insurers are responsible to Duzich for any liability which might be incurred, given the roles each played in the execution of the policies, handling of claims, and the correspondence related to the Baham and Coastal Bend claims in particular. Each of their names appear on the policy, though Fidelity is named as the insurer. When Duzich received correspondence regarding coverage, the letters were written on behalf of MOAC. Point seven is sustained.
POINTS OF ERROR RELATED TO FCB AND COASTAL BEND
By point of error ten, eleven and twelve, respectively, Duzich contends the court erred in granting a deficiency judgment against him and in favor of FCB, as assignee of Coastal Plains, and failing to grant his motion for summary judgment because such claims are barred by res judicata, collateral estoppel, and statute of limitations. We address the limitations argument because we find it dispositive.
We have previously addressed the issue of what limitations period, if any, is to be applied in a claim for debt under the Federal Ship Mortgage Act. In Ocean Transp., Inc. v. Greycas, Inc., 878 S.W.2d 256 (Tex.App. Corpus Christi 1994, writ denied), we observed that state and federal courts have concurrent jurisdiction over in personam actions under the Act. Id. at 266. We noted the Fifth Circuit's acknowledgment that the court stated that state law may occasionally "fill the gaps in an incomplete and less than perfect maritime system." Id. (citingJ. Ray McDermott & Co. v. Vessel Morning Star, 457 F.2d 815 (5th Cir.1972)). Because no federal limitations statute specifically governs deficiency suits under the Act, we applied the Texas rule of limitations. Id.
Under Texas law, a person must bring suit on a debt no later than four years after the day the cause of action accrues. TEX. CIV. PRAC. & REM.CODE ANN. § 16.004(a)(3) (Vernon 1986). The question of when a cause of action accrues is a question of law for the court to decide. Moreno v. Sterling Drug, 787 S.W.2d 348, 351 (Tex. 1990). A cause of action generally accrues at the time when facts come into existence which authorize a claimant to seek a judicial remedy. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.1990); Greycas, Inc., 878 S.W.2d at 267.
Because the statute of limitations is an affirmative defense, TEX.R. CIV. P. 94, it was Duzich's burden to plead, prove, and secure findings to sustain its plea of limitations. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988). He did timely plead the limitations defense to FCB's counterclaim.
Coastal Plains and FCB judicially admitted he defaulted on or before July 19, 1982. Duzich offered as summary judgment evidence pleadings filed by Coastal Bend in federal court, cause C-82-145, against the *871 Miss Suni Suzanne, in rem and John Duzich, in personam, wherein it alleged
Prior to the day of filing hereof, in personam Defendant, John Duzich, had become delinquent in the payment due upon said notes and Mortgage, and the same have, therefore, matured and become immediately due and payable in full. As of April 19, 1982, the balance due under the said Notes and Mortgages on account of principal and interest was the sum of Two Hundred Twenty-Three Thousand Three Hundred Twenty Three and 22/100 ($223,323.22) Dollars, and interest continues to accrue on the principal sum at the rate of at least Ninety-Nine and 29/100 ($99.29) Dollars per day until paid. The entire said amount, both principal and interest, is now due and owing and no part thereof had been paid, despite Plaintiff's demand therefor, to such damages in the stated amount.
Neither Coastal nor FCB dispute the veracity of the complaint offered by Duzich, nor does either dispute that Coastal was aware of Duzich's default no later than July 1982, when it filed its complaint.
The parties dispute Duzich's personal liability, based on what transpired in the federal court. Duzich maintains Coastal and FCB released him from all liability, while Coastal and FCB maintain that Duzich never appeared, and therefore his personal liability could not have been adjudicated, and the plain language of the consent decree indicates that no release from personal liability was either contemplated or agreed to.
In June 1985, Coastal sent a demand letter to Duzich. Days later, Duzich moved for declaratory relief that he was no longer liable on the note. It was not until October 28, 1989 that FCB added its counterclaim to collect the balance due on the note.
Based on the undisputed evidence, we conclude that Coastal's right to sue for the debt accrued in 1982. FCB, as successor in interest to Coastal, is entitled to the same rights, and is subject to the same restrictions, as was Coastal. Federal Debt Management, Inc. v. Weatherly, 842 S.W.2d 774, 777 (Tex.App.Dallas 1992), rev'd on other grounds, 883 S.W.2d 171 (Tex.1994) ("Under Texas law, however, a holder in due course is still subject to a valid limitations defense."); Cooper v. Hampton, 123 S.W.2d 941, 942 (Tex.Civ.App.Amarillo 1938, writ dism'd). Under no construction of the facts can Coastal Bend/FCB's action on the debt, first raised in pleadings dated October 28, 1989, be construed as falling within four years of the accrual of its cause on action. As such, we hold that the trial court erred as a matter of law, and should have granted summary judgment against FCB and in favor of Duzich.
We need not decide the issues presented with respect to the federal consent decree because we hold that, even if Coastal Bend and FCB could have sought satisfaction of the note against Duzich personally after the decree, they did not attempt to do so until 1989, after limitations had expired, and therefore the issue is moot.
Point of error twelve is sustained. Points of error ten, eleven, thirteen, and fifteen are rendered moot by our disposition of point twelve. Because they are unnecessary to the disposition of this appeal, we will not address them. Tex.R.App. P. 47.1.
Duzich challenges the summary dismissal of his usury, DTPA claims against FCB and Coastal Plains. FCB and Coastal Plains maintain that dismissal of those claims was proper because each claim is preempted by federal law. They argue in the alternative that such claims are barred by limitations.
In order for all state causes to be preempted, the federal law must so completely preempt the field that any suit that sounds in that area necessarily is a federal action. Brown v. Crop Hail Management, Inc., 813 F. Supp. 519, 523 (S.D.Tex.1993). Federal preemption of state law can occur in three situations: (1) where Congress explicitly preempts state law; (2) where Congress impliedly preempts state law because it has occupied the entire field; and (3) where preemption is implied because there is an actual conflict between federal and state law. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300, 108 S. Ct. 1145, 99 L. Ed. 2d 316 (1988).
*872 In determining the preemption issue, our sole task is to ascertain the intent of Congress, and an intent to preempt is not lightly presumed. California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 280-81, 107 S. Ct. 683, 93 L. Ed. 2d 613 (1987). The presumption is that the federal law does not displace existing state law. Maryland v. Louisiana, 451 U.S. 725, 746, 101 S. Ct. 2114, 68 L. Ed. 2d 576 (1981). Preemption must be the clear and manifest purpose of Congress. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947). We must determine whether Congress intended federal regulation to supersede state law. Louisiana Pub. Serv. Comm'n, 476 U.S. 355, 369, 106 S. Ct. 1890, 90 L. Ed. 2d 369 (1986); Dallas/Fort Worth Intern. Airport Bd. v. City of Irving, 854 S.W.2d 161, 166-67 (Tex.App.Dallas 1993), vacated on other grounds, 868 S.W.2d 750 (Tex.1994) (per curiam).
We agree with FCB and Coastal Plains that any claim of usury deriving from a mortgage executed under the federal act must be governed by federal law rather than state law. Unlike the limitations issue, the federal act does expressly address the question of rates that are to be charged under the act. See 46 U.S.C. § 926(d). Because there is no void in the statutory scheme, and because the scheme is intended to provide uniformity with respect to the citation and foreclosure of preferred ship's mortgages, "there is no room for the operation of state law." Harrison Overseas Corp. v. American Barge Sun Coaster, 475 F.2d 504, 507 (5th Cir.1973) (declining to consider claim that interest charged was usurious under Georgia law). Point of error fourteen is overruled.
We disagree with the lenders, however, to the extent that they allege any state cause of action arising out of a mortgagee's conduct is prohibited. There is nothing in the federal act that creates an exclusive set of remedies for debtors. An array of torts may tag-along to an unscrupulous lender's actions deriving from a preferred ship mortgage. There is no basis for categorically barring any state claims that arise in such contexts. Indeed, in a case relied on by FCB and Coastal Plains, the Fifth Circuit made no reference to the impossibility of pursuing a state claim tangentially related to the federal ship mortgage act, and in fact ordered a trial on the debtor's breach of contract claim, which clearly is a state cause of action. McDermott & Co. v. Vessel Morning Star, 457 F.2d at 817. Accordingly, Duzich's DTPA and negligence claims were not preempted as a matter of law. Point of error sixteen is sustained.
We next consider whether Duzich's claims are barred by limitations. His original petition sought only a declaration that he owed no more money on the note; he asserted no claims to positive relief against either Coastal Plains or FBC. After Coastal Plains and FCB filed a counter-claim, seeking declaration that he did owe money, and that he should be obligated to pay it, Duzich amended his petition to include various claims.
On August 14, 1987, he amended his petition to include allegations of negligence, gross negligence, intentional infliction of emotional distress, negligent infliction of emotional distress,[10] and unfair debt collection practices. Each of these causes have two year statutes of limitations. TEX. CIV. PRAC. & REM.CODE ANN. § 16.003; TEX.REV. CIV. STAT. ANN. § 5069-11.11; TEX. BUS. & COM.CODE ANN. § 17.565.
On February 1, 1989, Duzich amended his pleadings to add allegations of breach of contract and breach of fiduciary duty against Coastal Plains for its refusal to allow the release of his vessel in March of 1982, after it had been seized in the Baham action. He also contends that Coastal Plains wrongfully refused to lend him money around this time. These additional causes of action have two year limitations periods as well.
It is clear that, under any construction, Duzich's allegations against the lenders were rooted in their actions in 1982. At the latest, the allegations encompass action in June 1985, when Coastal Bend sent the demand *873 letter to Duzich. Were it not for the fact that Duzich already had a lawsuit timely filed against these insurers and for declaratory relief against his lenders, his assertion of these allegations in August 1987 and February 1989 would clearly be outside limitations. We must consider the impact of the pending declaratory judgment action on these new claims.
Duzich contends section 16.068 of the civil practice and remedies code precludes the exercise of limitations bar on these supplemental pleadings. That section reads,
If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.
TEX. CIV. PRAC. & REM.CODE ANN. § 16.068 (Vernon 1997) (emphasis ours).
Although all of the claims that were leveled back and forth between the parties were loosely derivative of the same occurrence and transaction, close inspection of the pleadings reveals significant differences. Duzich's initial allegations in his declaratory judgment action were that he had settled his debt with Coastal Plains, and consequently FCB, in federal court. These pleadings in no way referenced any alleged activities on the part of Coastal or FCB in either refusing to lend him money, in refusing to allow his vessel to be released from the marshal's custody, or in sending a demand letter despite his good standing. The alleged settlement and dismissal of the lenders' claims in federal court was the transaction or occurrence that formed the basis of Duzich's claims in the original declaratory judgment action. Coastal Plains' action in not cooperating with Duzich around the time his boat was seized in the Baham action, and the damages that flowed therefrom, is a separate occurrence or transaction.
We conclude that Duzich's claims originating in his first and second amended petitions against Coastal Plains and FCB are barred by limitations as a matter of law. Point of error seventeen is overruled.
We AFFIRM the trial court's dismissal of Duzich's DPTA claims against Fidelity and MOAC, and its dismissal of Duzich's tort and statutory claims against Coastal Plains and Fidelity. We REVERSE the court's summary dismissal of his contract, insurance code, and bad faith claims against Fidelity and MOAC, however, and REMAND those causes to the trial court for further proceedings. We also REVERSE the court's decision with respect to any alleged deficiency owed on the note. Because FCB is barred by limitations from instituting any claim for the deficiency at the time it filed its suit, it cannot collect on the note, and Duzich is entitled to summary judgment on those claims. His declaratory action is moot at this point.
NOTES
[1] Duzich's original promissory note was issued to Coastal Bend Production Credit Association (Coastal Bend), which then changed its name to Coastal Plains Production Credit Association (Coastal Plains). During litigation, Coastal Plains sold the note to FCB.
[2] Duzich sued them for bad faith, breach of contract, and violations of the Texas Deceptive Trade Practices Act and the insurance code.
[3] Coastal's action on the debt was governed by the federal Ship Mortgage Act, which vested exclusive jurisdiction for in rem forfeitures in federal court, along with concurrent jurisdiction on any in personam action.
[4] The order of dismissal has some mother hubbard language disposing of all claims, the meaning of which is hotly disputed between Duzich and both Coastal and FCB.
[5] Although originally named as a defendant, Whitney-Vaky Insurance was later dropped as a defendant.
[6] MOAC and Fidelity argued to the trial court that Duzich's failure to notify them of the Baham injury promptly excused any liability they may have otherwise had under the policy.
[7] The policies are issued by "Fidelity & Casualty Co. of New York," but also bear the emblem "MOAC" on the letterhead. One of Duzich's DTPA claims was that the insurer intentionally caused confusion as to the source and sponsorship of his policies.
[8] The hull policy does not cover Baham's injury.
[9] The insurance contract at issue in this case does not require "prejudice" before the company may assert a "late notice" defense. Texas Board of Insurance Order No. 23080 requires a showing of prejudice before allowing a "late notice" defense on any general liability policy, however. Chiles v. Chubb Lloyds Ins. Co., 858 S.W.2d 633, 635 (Tex.App.Houston [1st Dist.] 1993, writ denied); STATE BD. OF INS., REVISION OF TEXAS STANDARD PROVISION FOR GENERAL LIABILITY POLICIES Amendatory EndorsementNotice, Order No. 23080 (March 13, 1973). MOAC and Fidelity have alleged this is not an ordinary general liability policy, as there is no attendant duty to defend, only to indemnify.
[10] There is no general duty not to negligently inflict emotional distress. Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619787/ | 585 N.W.2d 105 (1998)
7 Neb. Ct. App. 606
Anthony L. NICHOLS, Appellant,
v.
COUNTY OF DOUGLAS, Appellee.
No. A-96-1241.
Court of Appeals of Nebraska.
September 15, 1998.
*107 John K. Green, Omaha, for appellant.
James S. Jansen, Douglas County Attorney, and Christine A. Lustgarten, Omaha, for appellee.
MILLER-LERMAN, C.J., and IRWIN and INBODY, JJ.
MILLER-LERMAN, Chief Judge.
Anthony L. Nichols, a former inmate at the Douglas County Correctional Center (DCCC), brought an action under the Political Subdivisions Tort Claims Act against the County of Douglas, alleging that he suffered injuries after falling while attempting to get into his upper bunk bed at DCCC. In a bench trial, the district court for Douglas County found that DCCC was not liable to Nichols for his injuries. On appeal, Nichols essentially argues that the trial court erred in failing to determine that DCCC was negligent in designing, installing, maintaining, and repairing the upper bunk in room 8 of module F prior to Nichols' fall from the upper bunk on January 3, 1991. Nichols also argues that DCCC knew or should have known that the upper bunk bed in his cell was in need of repair prior to his fall on January 3. For the reasons set forth below, we affirm.
BACKGROUND
On April 25, 1996, Nichols filed a second amended petition pursuant to the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 13-901 to 13-926 (Reissue 1987). In his petition, Nichols stated that he is currently residing in Georgia and that he is seeking damages for injuries he sustained on January 3, 1991, while housed at DCCC awaiting trial on criminal charges. Nichols alleged that he suffered injuries when his assigned bunk collapsed as he attempted to get into the bunk. Nichols alleged that his injuries were caused by DCCC's negligence and that DCCC had been negligent in failing to (1) properly inspect his bunk to ensure that it was in proper and safe working order, (2) ensure that his room was properly equipped and that his bunk was in useable condition, (3) properly repair and maintain the bunk in his room, (4) adequately design and construct the upper bunks, and (5) install an adequate method of ingressing and egressing the upper bunks. Further, Nichols alleged that DCCC knew or should have known that his bunk was not in proper and safe working order or useable condition. Nichols alleged that as a result of DCCC's negligence, he has suffered and will continue to suffer mental anguish and pain and suffering and that he must continue to undergo medical care and treatment. Nichols requested judgment against DCCC for general and special damages as well as interest and costs.
On April 30, 1996, DCCC filed a demurrer to Nichols' second amended petition, which after hearing, the district court denied in a journal entry dated May 14, 1996.
On May 23, 1996, Nichols filed a motion to bifurcate the action on the issues of liability and damages, which was subsequently granted by the district court.
On June 3, 1996, DCCC filed an answer to Nichols' second amended petition. In its answer, DCCC admitted that Nichols had fallen while getting into his bunk, but denied having any knowledge of any alleged problem with Nichols' bunk or any of the bunks adjacent to the one in Nichols' room or notice of the same. DCCC denied that it had been negligent in any of the respects alleged by Nichols in his petition.
A trial on the issue of liability was set for July 15 and 16, 1996. At this bench trial, the evidence showed the following:
Initially, the cells at DCCC were single-occupancy cells. In the early 1980's, the cells at DCCC were converted to double-occupancy cells by the addition of 58 upper bunk beds. Although a bid was requested from a private professional contractor, Vince Bird Construction, DCCC did not accept this bid, and DCCC, in cooperation with the Douglas County Department of Public Properties, built the upper bunks on their own. The record shows that the county built the upper bunks based on the design submitted by the outside professional contractor.
*108 The upper bunks were constructed of wood and attached to the wall with "all-threads," which are 5/8-inch or ¾-inch bolts that are 12 to 16 inches long. These bolts run through the concrete block walls of each cell into the upper bunk bed frame in both adjacent rooms. The frame of each bunk was enclosed in plywood, and the plywood was glued to the bunk bed frames with "PL400," an industrial-strength compound.
In most cells at DCCC, including room 8 of module F, in addition to the beds, there is a sink, a toilet, a desk, and a stool in front of the desk which is bolted to the floor. The upper bunk is approximately 53 to 541/2 inches off of the ground, while the lower bunk is approximately 19 to 20 inches high. Typically, the inmates use the bottom bunk, the desk, or the stool to access the upper bunk. The desks are 29 to 30 inches high, while the stools are 18 or 19 inches high. The stools are approximately 9 to 10 inches away from the bunk beds. Evidence produced at the hearing indicated that a faceplate was bolted either to the wall near the beds or to the beds themselves. The plate allows an inmate to step up on the edge of the plate toward the wall and get into the upper bunk with safety. The evidence showed that DCCC did not install stepladders or moveable stools in the cells to assist inmates in reaching the upper bunk for fear that the inmates would use such items as weapons or as a means to commit suicide.
William McPhillips, the deputy warden of administration at DCCC at the time of Nichols' accident, testified that he had been employed at the facility since 1978 and that since that time, an inmate had fallen from his bunk a couple of times at most. McPhillips stated that there had been no problems between inmates potentially caused by one inmate's using another inmate's lower bunk to gain access to his upper bunk.
The evidence shows that DCCC is inspected by the Jail Standards Board on a yearly basis and that DCCC was in full compliance during 1990 and 1991. The Jail Standards Board did not comment on the construction of bunk beds or require that the bunk beds be inspected on a routine basis. Specifically, regarding inspections of inmates' cells, the Standards for Jail Facilities, 81 Neb. Admin. Code, ch. 6, § 003.02A (1987) states, "Facility employees shall carefully inspect cells, cell doors, bars, windows, and doors leading into and out of housing areas daily to insure that all are in proper and safe working order."
Regarding the inspection of the windows, jail personnel testified that they would have to place their weight on the upper bunk to check the window. One corrections officer testified that it is not possible to reach the windows without placing some pressure on the top bunk. DCCC records show that the windows in Nichols' room were checked on December 29 and 31, 1990, and January 1, 1991.
Nichols testified that he had been incarcerated in DCCC as a pretrial detainee from August 24, 1990, to April 11, 1991. Nichols testified that initially he was housed in room 13 of module F and that around Thanksgiving weekend of 1990, he was transferred to room 8 of module F and assigned to the top bunk. Nichols testified that on January 3, 1991, at about 1:30 a.m., he got up to use the restroom and that when he attempted to get back into bed, he used the stool by the desk to pull himself up to the upper bunk. Specifically, Nichols testified that he stepped up on the stool, leaned forward, braced himself, turned, and attempted to place his "rear end onto the bunk," essentially doing a "sort of a half pirouette" to get into the bed. Nichols testified that as he did so, his bed gave way and he fell onto the ground. Nichols testified that he was knocked unconscious from the fall and that when he woke up in the hospital, he felt pain in the left side of his head and the right side of his lower back. Nichols testified that during the approximately 5 weeks he used the top bunk, he never noticed that his bed was loose.
Nichols called an expert in design and renovation of correctional facilities, Randall Atlas, who testified on Nichols' behalf by videotape. The videotaped testimony and a transcription thereof are in the record on appeal. Atlas testified that the top bunks should have been constructed of steel or metal, not wood. In particular, Atlas testified that the fact that no lock washers were used when bolting the bed to the steel rod *109 was substandard construction. Atlas stated that DCCC did not provide an adequate means for the inmates to access the upper bunks. Atlas discussed the advisability of alternate methods of access to bunk beds, including stools and ladders. Atlas also recommended that DCCC attach a "solid plate" or "something fairly comparable in wood" to either the lower bunk bed or to the wall for the inmates' use in getting to the upper bunk. He did not opine that the existing faceplate was inadequate as he did not appear familiar with its existence. On cross-examination, Atlas acknowledged that although he had reviewed documents forwarded by Nichols' counsel, he had not personally viewed any of the cells at DCCC, inspected the bunk beds, or talked to any of DCCC's employees or to Nichols. Additionally, Atlas admitted that he did not know whether the stools by the desk were moveable or fixed. Atlas did not know how high the stools were or the height of the beds. Atlas hypothesized that the stools in the cells were 12 to 18 inches from the bed, whereas, the evidence shows that the stools are 9 to 10 inches away.
Ralph Hilt, the DCCC employee who repaired Nichols' bunk after Nichols' fall on January 3, 1991, testified that upon checking the upper bunk in room 8 of module F, the upper bunk looked fine, but that when pressure was applied to the bed, he found that the upper bunk was loose on the left corner, with approximately a 1/2-inch or 3/4-inch movement on the left-hand side. Hilt testified that he was aware that two or three other bunks built like Nichols' had become loose and had required repair. Hilt was not asked whether any inmates had been injured because of the loose bunks. Specifically, the evidence shows that most recently, DCCC's employees had repaired the upper bunk in room 1 of module D on December 9, 1990, because the top bunk had become loose from its mounting. However, unlike the upper bunk in room 8 of module F, the upper bunk in room 1 of module D is not connected to the bunks in the adjacent rooms, but, rather, connected only to one other upper bunk bed because room 1 of module D is at the end of a row.
Regarding room 8 of module F, Donald Howland, the inmate who was assigned to the upper bunk in room 8 of module F before Nichols, gave testimony in a deposition. Howland testified that while he resided in room 8 of module F, the upper bunk was very unstable and loose, not just on the left side, but on both the left-hand and the right-hand sides. Howland testified that he brought the condition of the upper bunk to the attention of the guards on several occasions and that DCCC engineers had inspected the bunk, but did not repair the upper bunk before he left the room. There was no evidence of Howland's complaints in any of DCCC's records, nor is there any record of any repair work done on the upper bunk in room 8 of module F prior to Nichols' accident. Evidence on this record indicates that as a general rule, maintenance personnel at DCCC did repair work in a timely manner, shortly after being notified of a maintenance problem.
In a seven-page order dated October 31, 1996, the district court dismissed Nichols' petition with prejudice. The district court concluded that DCCC was not liable because (1) the design and installation of the upper bunk beds met the standard of care for correctional facilities, (2) DCCC's inspection of the inmates' beds met or exceeded the standard of care for correctional facilities, (3) neither Nichols nor DCCC was aware of the fact that Nichols' bed was defective in any way, and (4) DCCC's decision not to place footstools or ladders on the bunk beds met or exceeded the standard of care applicable to correctional facilities. Nichols appeals.
ASSIGNMENTS OF ERROR
Essentially, Nichols argues that the trial court erred in failing to determine (1) that DCCC was negligent in designing, installing, maintaining, and repairing the upper bunk in room 8 of module F prior to Nichols' fall from the upper bunk on January 3, 1991, and (2) that DCCC knew or should have known that Nichols' bunk bed was in need of repair prior to January 3.
STANDARD OF REVIEW
In actions brought pursuant to the Political Subdivisions Tort Claims Act, the *110 findings of the trial court will not be disturbed on appeal unless they are clearly wrong, and when determining the sufficiency of the evidence to sustain the verdict, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in favor of such party, and it is entitled to the benefit of every inference that can reasonably be deduced from the evidence. Wasiak v. Omaha Pub. Power Dist., 253 Neb. 46, 568 N.W.2d 229 (1997).
On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts. Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (1997).
ANALYSIS
On appeal, Nichols argues that the trial court erred in failing to determine that DCCC was negligent in designing, installing, maintaining, and repairing the upper bunk in room 8 of module F prior to Nichols' fall from the upper bunk on January 3, 1991, and that DCCC knew or should have known that Nichols' bunk bed was in need of repair prior to January 3. DCCC argues that the trial court's factual findings were not clearly wrong and that the district court's order should be affirmed. After considering the evidence in a light most favorable to DCCC and resolving every controverted fact in DCCC's favor, we find that the trial court's findings of fact were not clearly wrong and affirm the decision of the district court.
In its order dated October 31, 1996, the trial court made lengthy and detailed findings. The trial court summarized the testimony of the various witnesses. Thus, for example, with respect to Howland's testimony, the trial court summarized the evidence given by Howland and stated, inter alia, that the testimony of Howland was not useful regarding Nichols' issues. Similarly with respect to Nichols' expert, Atlas, the trial court summarized the opinions Atlas rendered regarding construction and maintenance and Atlas' opinion that footstools or ladders should have been provided to the inmates. Atlas also recommended the attachment of a "solid plate" or "something fairly comparable in wood," but did not comment on whether or not the existing faceplate was inadequate. The trial court observed that Atlas did not mention any treatises or other scholarly works in connection with his opinions but did not reject Atlas' opinions on that basis. The trial court agreed with Atlas in observing that "no doubt ... a stronger bed could have been constructed, [but] I cannot say that the DCCC was negligent in failing to install stronger frames in this instance." In summarizing other testimony, the trial court noted that the evidence presented by the county showed that "over a 15-year period, no structural failures had occurred."
A review of the record shows that there is evidence that the bunk beds at DCCC were well constructed, secured by connecting the bunk beds to other bunk beds in adjacent rooms and that the bunk beds were assembled using PL400, an industrial-strength compound, and that their design was based on the drawings submitted by outside professionals. Evidence shows that the inmates were provided several means to access their upper bunks, including the desk, the stool, the lower bunk, and a faceplate attached either to the wall near the beds or to the beds themselves. There is convincing evidence that DCCC did not install stepladders or moveable stools to access the beds for valid safety and security reasons.
Although Nichols contends that DCCC should have known that his bunk bed was loose, he testified that he never noticed that his bunk was loose prior to January 3, 1991. Although Atlas opined that fights might occur if an inmate used another inmate's bed as a stepping stool, evidence produced by DCCC shows that inmates routinely did so without creating problems. Similarly, although there is no specific rule mandating that DCCC inspect the bunk beds on a routine basis, the evidence shows that DCCC employees of necessity checked the inmates' beds and their stability while checking the adjacent windows in the inmates' cells. In this regard, we note that DCCC employees testified that they were unable to check the windows without placing some force or some of their weight on the upper bunk beds. The record shows that the windows in room 8 *111 of module F were checked on December 29 and 31, 1990, and January 1, 1991. Additionally, since the upper bunk beds were installed in the early 1980's, very few accidents have occurred. McPhillips testified that at most, two inmates have fallen off their beds since he started to work at DCCC in 1978. McPhillips did not state the cause of these accidents.
To the extent that expert testimony was required by Nichols to establish a lack of care by DCCC and without commenting on the required standard of care, Nichols produced Atlas who was qualified as an expert and rendered opinions summarized above in this opinion. Taking the trial court's opinion in its entirety, it is clear from the trial court's findings and conclusions that the trial court did not credit Atlas' opinions and that his opinions were outweighed by other evidence presented by the county, inter alia, the testimony summarized above and the bunk bed design, which was based on the design submitted by the outside professional contractor. In a bench trial of a law action, the court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (1997). Similarly, determining the weight that should be given expert testimony is uniquely in the province of the fact finder. Id. Under Aken v. Nebraska Methodist Hosp., 245 Neb. 161, 511 N.W.2d 762 (1994), where the appellate court reviews videotaped testimony and evidence, and the standard of appellate review is not de novo, the appellate court is not free to substitute its view of the evidence for that of the trier of fact. Thus, in the instant case, regardless of whether or not the appellate court may have given the videotaped testimony of Atlas more weight than did the trial court, this court cannot say as a matter of law that the trial court's determination which, after reviewing all the evidence, fails to find Atlas' opinions persuasive, is clearly wrong.
CONCLUSION
Based on the evidence before it, the district court concluded Nichols did not establish liability. We find no reversible error.
AFFIRMED.
IRWIN, Judge, dissenting.
The first question which must be answered in this appeal is, What is the standard of care applicable to the design and installation, in a maximum security correctional facility, of a retrofitted top bunk hanging over 4 feet above a concrete floor? The majority opinion fails to address this question. The majority states, "To the extent that expert testimony was required by Nichols to establish a lack of care by DCCC and without commenting on the required standard of care, Nichols produced Atlas...." (Emphasis supplied.) The majority further states that "it is clear from the trial court's findings and conclusions that the trial court did not credit Atlas' opinions and that his opinions were outweighed by other evidence presented by the county...." (Emphasis supplied.)
I think the majority makes an error that is inconsequential in not "commenting on the required standard of care." I conclude this because the trial court used the wrong standard of care in rendering its decision and erroneously discounted the only expert opinion regarding the proper standard of care simply because Atlas did not state that he relied upon any particular treatise or book in rendering his opinions. The majority also incorrectly states that "[Atlas'] opinions were outweighed by other evidence presented by the county." It is undisputed that the county presented no expert testimony to rebut Atlas and, to borrow from the majority's language, "[t]o the extent that expert testimony was required," Nichols provided the only expert testimony in this record. The majority does not and cannot indicate what evidence was presented by the county to outweigh Atlas' opinions because there was none.
It is axiomatic that in order to succeed in an action based on negligence, the plaintiff must establish the defendant's duty not to injure the plaintiff, breach of that duty, proximate causation, and damages. Ackles v. Luttrell, 252 Neb. 273, 561 N.W.2d 573 (1997). The instant case was bifurcated, and therefore the sole issue to be decided at this point in the legal process is that of liability.
*112 Trial on the issue of liability involves the elements of duty not to injure the plaintiff and breach of that duty. See Scholl v. County of Boone, 250 Neb. 283, 549 N.W.2d 144 (1996). In a negligence case, the duty not to injure encompasses the concept of standard of care. "A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53 at 356 (5th ed.1984).
Expert testimony is necessary to establish the standard of care in cases in which the trier of fact is faced with matters requiring special knowledge or skill on subjects which are not within the realm of the ordinary experience of people. The necessity of such testimony "arises from the fact that the judicial system is called upon to make determinations which require specialized knowledge in fields in which the trier of fact is ignorant or relatively so." Halligan v. Cotton, 193 Neb. 331, 340, 227 N.W.2d 10, 15 (1975). It is interesting to note that in the present case, the county first contacted an architect to design these bunks but then elected to do the job itself. The law is clear that when a nonprofessional decides to perform services in professional areas, such as architecture or construction herein, that nonprofessional is required to exercise the same level of skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities. Restatement (Second) of Torts § 299A (1965). Although there is an exception to this rule noted in the Restatement, it is not pertinent to the facts of this case. The county chose to perform the services of an architect and builder and was therefore bound to perform according to the standards applicable to such professions.
The trial judge, according to his multipage order, found the following proposition of law to be controlling on the issue of what standard of care is applicable here: "`[A] jailer has a duty to exercise that degree of care necessary to provide reasonably adequate protection for his prisoners.' Daniels v. Anders[e]n, 195 Neb. 95, 98, [237 N.W.2d 397, 400] (197[5]), quoting 60 Am.Jur.2d Penal and Correctional Institutions § 17 [ (1972) ]; Restatement of Torts 2d § 320 [ (1965) ]." In other words, the trial judge found that the standard of care to be applied to the design and installation issues in this case is one of ordinary reasonableness, capable of ascertainment without the assistance of expert testimony. As such, the trial court applied the wrong standard of care in assessing Nichols' claim and proof, and was clearly wrong in concluding that Nichols failed to meet his burden of proof.
The Daniels case cited by the trial court involved a plaintiff-inmate who was attacked by a fellow inmate while locked in a "drunk tank." The negligence claim in Daniels was distinguishable from the issues dealt with in the case before us. I would agree that an act of negligence involving personal violence among inmates may not require expert testimony to establish the standard of care. However, the case at hand involves design and installation of a retrofitted top bunk that must be suspended from the wall of a jail. While regrettably we all may have some experience with physical assault, either actual or vicarious, few of us are familiar in any manner with designing and building furniture for a maximum security jail. I must respectfully disagree with the majority opinion which tacitly endorses the conclusion of the trial court that expert testimony was unnecessary.
The Nebraska Supreme Court has held on several occasions that in a claim for professional negligence, the standard of care must be established by expert testimony, and failing such expert testimony, a prima facie case of negligence has not been established. See, e.g., Overland Constructors v. Millard School Dist., 220 Neb. 220, 369 N.W.2d 69 (1985). Because the county was performing a professional service, in this case design and installation, the county is held to the same standard as a professional in the fields of architecture and construction. As such, this case should be treated like any other professional negligence case, and expert testimony is needed to establish the standard of care.
Nichols called Atlas via videotaped deposition to provide expert testimony on the standard *113 of care. To determine whether Nichols, through Atlas' testimony, succeeded in setting forth a prima facie case, it is necessary to review Atlas' qualifications as an expert, as well as his testimony regarding the standard of care applicable to the design and installation of this bunk bed. Atlas has bachelor's degrees in architecture and criminal justice from the University of Florida and the University of South Florida, respectively. He has a master's degree in architecture from the University of Illinois. Atlas also earned a doctorate in criminology from Florida State University. The record is undisputed that these are the highest credentials in the country regarding design of correctional facilities.
As part of his architectural education and experience, Atlas studied design and construction of both new and remodeled correctional facilities. While in college, Atlas worked for and did an architectural internship at the Florida Department of Corrections. His work for the Florida Department of Corrections included the preparation of documents for retrofitting existing buildings and housing units. During this time, he gained experience planning and constructing inmate cells in correctional facilities.
After his college work, Atlas was employed by a national architectural firm, specializing in jail and prison construction. His position involved the design of large prison facilities in California and architectural programming of several new jails. Atlas next worked for an architectural firm in Coral Gables, Florida, that had recently obtained a commission for a $44 million correctional facility in Dade County, Florida. He worked with a team responsible for the architectural program and design for bunking within this 1,000-bed facility. Later, Atlas started his own company and began doing work for the National Institution of Corrections, which is part of the Department of Justice. He served as a technical consultant and participated as a trainer in a program for the planning of new institutions. Atlas also worked as an onsite technical assistant consultant where he was sent around the country to look at jails experiencing overcrowding. He assisted in planning architectural renovations to deal with overcrowding.
As part of his work, Atlas has instructed county officials and other correctional or jail administrators regarding their standard of care to be followed in their endeavors. He testified that the American Corrections Association was generally regarded as the "national industry standard." Atlas has also published papers on correctional architecture, taught at various universities regarding criminal justice issues, and testified as an expert witness in other cases.
In preparation for his testimony, Atlas reviewed various documents, including depositions, floor plans, cell designs and layouts, sketches, correspondence, and pleadings, all provided to him by counsel. Atlas also testified that he reviewed the American Corrections Association Adult Detention Center standards.
Atlas concluded that the bunk bed in the present case was designed and constructed in such a manner that there existed unacceptable flexibility and movement and that the bed was anchored to the wall in a manner that did not provide sufficient rigidity to prevent working itself loose from the wall. He also felt it was substandard as a construction technique to fail to use "lock washers" when bolting the bed to the steel "all-threads." Specifically, he stated:
[Nichols' counsel:] In terms of the wooden bunk itself, your criticism as to the way it's attached goes to the lack of a lock washer and the spacing that is exhibited and the failure to have a method of rigid attachment to the side walls such as a weld?
[Atlas:] That is correct.
....
... And in addition to that, that they didn't provide a proper anchoring device to anchor the bolts to the wood. We have a connection between two different materials of steel to wood, and they could have used a sleeve or some kind of device that would have allowed anchoring and transferring the weight from the steel rod to the wood in a better manner.
*114 [Nichols' counsel]: Then it is your opinion that eventually these bunks were going to come loose and that this was an accident waiting to happen?
[Atlas:] Yes, sir.
Contrary to the majority's conclusion, the record does not establish that "a faceplate was bolted either to the wall near the beds or to the beds themselves [to reach] the upper bunk with safety." (Emphasis supplied.) The testimony relied upon by the majority in this regard, which was given by the coordinator of public properties, closely follows testimony by the same witness that "the planned method of ingress and egress from the upper bunk" was "[j]ust to step on the edge of the lower bunk." The witness indicated that there was a faceplate on the bed, not a plate designed for use in getting to the upper bunks.
Finally, Atlas testified that there was no adequate, safe means of ingress and egress to the upper bunk. Atlas specifically testified that using the lower bunk as a step was unsafe and that the stool was too far from the bunks to be used safely. Additionally, Atlas' failure to specifically "opine that the existing faceplate [on the bed] was inadequate [as a means of ingress and egress]," as noted by the majority, does not represent a tacit admission of the plate's adequacy. Rather, from my review of the record, it is a result of the fact that no one asked Atlas about the faceplate at trial. This is likely a direct result of the fact that no one has ever represented that the faceplate was to serve as a means of accessing the upper bunk.
The trial court's order stated that Atlas testified:
[T]he design and maintenance of these bunks, and Nichols' bunk in particular, was below the standard of care for penal institutions. The wood frame construction was improper ("a Mom and Pop" job). (Stronger) Metal frames should have been used; and the frames should have been welded or lock washered to the walls. Foot stools, ladders or other access devices should have been provided.
The order went on to state:
As to the design critique, Atlas did not name any architectural guide or structural authority, either within or without the correctional industry, which would, as a matter of due care, specify wood rather than metal construction. No treatise, scholarly work, or accepted source was mentioned in support of this criticism.... A similar observation applies to Atlas' complaint that the frames should have been welded or lock washered to the walls. While I have no doubt that a stronger bed could have been constructed, I cannot say that the DCCC was negligent in failing to install stronger frames in this instance.
The above-quoted language from the trial court's order is significant in two respects. First, it is apparent that the court concluded that Atlas' opinion was that the design and installation of the bunk did not meet acceptable professional standards. This is a factual conclusion of the trial court that, as the majority has noted, we are not free to dispute on appeal unless it is clearly erroneous. A review of the bill of exceptions shows that this factual determination of the judge is supported by the record, and we are obliged to accept it.
The second significant aspect of the trial court's language quoted above is the court's conclusion that because no treatise, book, publication, or guide was relied on by Atlas in forming his opinion, the court was free to totally disregard it. While oftentimes experts do rely on such sources for their opinion, nothing in statute or case law requires reliance on such materials in every instance. If such were the case, the author of the most learned treatise on a subject would be precluded from testifying until a publisher was first found to put the information in print. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Neb.Rev.Stat. § 27-702 (Reissue 1995). Atlas was qualified as an expert, he possessed a sufficient and proper foundation or factual basis for his opinion, and his testimony was necessary for *115 the trier of fact to establish and evaluate the standard of care in this case.
Although expert testimony was necessary for Nichols to establish the standard of care in order to prove a prima facie case, the testimony of Atlas satisfied that requirement. The county presented absolutely no expert testimony to rebut the standard of care as ably presented by Atlas. The trial court was clearly wrong in finding Atlas' opinion was inadequate simply because it was not based on a treatise, a scholarly work, or an accepted source.
Having concluded that expert testimony was necessary to establish the standard of care owed to Nichols, that Nichols offered sufficient expert testimony to establish the standard of care, and that the county offered no expert testimony to rebut Atlas, the final question is whether the trial court erred in finding that Nichols did not establish liability. The answer is and must be "Yes." Not only did the county fail to rebut the standard of care as articulated by Atlas, it also failed to rebut the design and installation breaches laid out by him. These breaches include the failure to design and construct the bunk with sufficient rigidity to prevent the bed from working itself loose from the wall, the failure to use lock washers when bolting the bedframe to the "all-threads," and the failure to provide a safe means of access to the upper bunks. In fact, the county does not dispute that these deficiencies existed but contends that they simply do not fall below the standard of care of how a reasonable person would have designed and installed the retrofitted bunk. This stance by the county is as incorrect as the trial court's conclusion because it assumes a standard of care of ordinary reasonableness, rather than the applicable higher standard of care required of a professional. The law is clear that when a person decides to perform services in professional areas such as architecture or construction, that person is required to exercise the skill and knowledge normally possessed by members of that profession or trade.
The trial court's failure to use the appropriate standard of care renders its conclusions clearly wrong. The judgment should be reversed and the case remanded with directions to enter judgment in favor of Nichols on the issue of liability and proceed to trial on the issues of proximate cause and damages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393419/ | 500 S.W.2d 54 (1973)
STATE of Missouri, Plaintiff-Respondent,
v.
Edward James MATZKER, Defendant-Appellant.
No. 34642.
Missouri Court of Appeals, St. Louis District, Division Two.
September 18, 1973.
*55 David J. Fingerhut, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Cir. Atty., J. Paul Allred, Asst. Cir. Atty., St. Louis, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, Stanley M. Rea, Jr., St. Louis, for plaintiff-respondent.
GUNN, Judge.
Appellant appeals from a conviction of stealing over $50.00 contrary to Section 560.156 R.S.Mo. The sentence imposed by the trial judge was two years. The charge arises from the theft of a coin telephone and its contents from the wall of a building in which the appellant worked.
Appellant's brief is deficient and defective in that it fails to contain a jurisdictional statement; the statement of facts is argumentative; there are no "Points Relied On" or any authorities therefor. The brief is therefore lacking in the requirements of Rule 84.04(a), (b), (c) and (d), *56 V.A.M.R., and Rule 28.18 V.A.M.R. Consequently nothing has been preserved for review. State v. Rush, 495 S.W.2d 714 (Mo.App.1973). However, rather than dispose of the case on the basis of the defective brief, we shall consider all points raised in the motion for new trial and the abstract statements designated as "Issues Presented" discussed in appellant's brief.
Appellant was the manager of two pizza parlors in South St. Louis. Raymond Hudson, who worked for appellant at one of the pizza parlors, testified that appellant had torn the coin telephone belonging to Southwestern Bell Telephone Co., Inc., from the wall at one of the pizza parlors and with Hudson had transported it to the other pizza parlor where appellant broke into the telephone and removed the coins. Hudson observed that approximately $48.00 in change was taken from the telephone and kept by the appellant. Hudson reported the incident to the police who arrested appellant. Appellant denied any involvement in the theft of the telephone or its contents.
Employees for Southwestern Bell Telephone Company testified that although the type of telephone which had been removed from the wall and stolen was no longer being purchased for replacement purposes the records of the company reflected that the telephone which had been taken had a book value of $150.33 on June 3, 1971, the date of its taking.
At the trial, the court, over the objection of appellant's counsel, permitted the prosecuting attorney to make inquiry of the appellant whether he had ever been convicted of a crime. After initially denying any prior conviction record, appellant admitted that he had been convicted of stealing under $50.00 fourteen years prior to the date of trial. The prosecuting attorney did not inquire into the details of the prior conviction.
In his closing argument to the jury, the prosecuting attorney, in commenting on the instructions given, stated that if the jury made a finding of guilt but could not agree on the punishment, the trial judge, who had experience in such matters, would assess the punishment. The jury after finding defendant guilty could not agree on the matter of punishment, and the trial court imposed a two year sentence.
The following points were raised in the motion for a new trial and are also discussed in the appellant's brief as grounds of error in the trial: 1) that the court should not have permitted the state to cross-examine defendant about a prior conviction for stealing under $50.00, as it had no probative value in impeaching the credibility of defendant and was too remote for consideration; 2) the court failed to instruct the jury on a lesser and included charge of stealing under $50.00; 3) that it was error to allow the prosecutor to argue to the jury that the experienced trial judge would make the decision regarding punishment in the event the jury found the defendant guilty, but could not agree on the punishment; 4) that it was error to allow evidence of witnesses from Southwestern Bell Telephone Company regarding the value of the telephone at the time it was taken from the place where it was affixed; 5) that an instruction should have been given to the jury that uncorroborated testimony of an accomplice should be considered with great caution and that limited consideration should be given to appellant's prior conviction.
None of the points raised in the motion for a new trial or discussed in appellant's brief has merit. The showing of prior convictions is proper to attack the credibility of a witness, particularly where the defendant has denied any prior conviction. Section 491.050 R.S.Mo.; State v. McClain, 404 S.W.2d 186 (Mo.1966), cert. denied 385 U.S. 1016, 87 S. Ct. 732, 17 L. Ed. 2d 552 (1966); State v. Byrth, 395 S.W.2d 133 (Mo.1965). It is also proper to make inquiry, for purposes of credibility, about prior convictions for misdemeanors. State v. McKissic, 358 S.W.2d 1 (Mo. *57 1962); State v. Kuever, 363 S.W.2d 31 (Mo.App.1962). The prosecuting attorney did not go into the details of the prior conviction other than to establish that there had been a prior conviction, and the limited examination was proper. State v. Kuever, supra.
The only evidence in this case relating to the value of the property stolen was that it exceeded $50.00. An instruction on stealing less than $50.00 was therefore not required. State v. Burrage, 418 S.W.2d 101 (Mo.1967).
The prosecuting attorney in suggesting to the jury that the court had experience in assessing punishment was merely referring to an instruction which had been given which stated that if the jury had agreed on guilt but not on punishment, they could return a verdict on guilt and allow the court to assess punishment. Counsel may argue such an instruction in closing argument so long as the remarks adhere to the terms of the instruction and there is no attempt to persuade the jurors to shirk the duty regarding assessment of punishment after they have determined guilt. State v. Daugherty, 484 S.W.2d 236 (Mo.1972); State v. Brown, 443 S.W.2d 805 (Mo. banc 1969). The remarks were not improper.
The court did not err in permitting testimony by employees of Southwestern Bell Telephone Co., Inc., regarding the value of the telephone which was taken and removed, even though the type of telephone which was taken was no longer being purchased for replacement purposes by the telephone company. The question of the value of stolen articles is a matter for jury consideration, and the owner's testimony regarding the value of goods is sufficient evidence of value to support a jury conviction of stealing over $50.00. State v. Burrage, supra; State v. Walker, 365 S.W.2d 597 (Mo.1963). Where, as in this case, the stolen property has a unique or restricted use and extremely limited market value, evidence as to the actual value to the owner or replacement value of the property as expressed by persons familiar with the property and its contents is competent to aid the jury in establishing the true value of the property.[1]
Due to the unusual nature of the telephone and the fact that the average juror would not ordinarily be cognizant of its value, it was proper to allow evidence as to the value of the telephone based on records kept in the ordinary course of business and testimony of the witnesses who had familiarity with its value. It was proper to allow evidence establishing the value of the telephone by testimony as to its cost and the amount of loss to the owner. There was evidence to the effect that the value of the telephone in June 1971 was $150.33, and the company's loss would also be $150.33. There was also evidence that the manufacturer of the telephone, Western Electric Company, would pay $150.00 for the telephone on its replacement or return, thus establishing a market value. Therefore, there was sufficient evidence to warrant a jury conviction of stealing over $50.00.
The court did not err in failing to instruct the jury that the uncorroborated testimony of an accomplice should be considered with great caution and that limited consideration should be given to appellant's former conviction. A conviction may be sustained on the uncorroborated testimony of an accomplice. State v. Strong, 484 S.W.2d 657 (Mo.1972). And an instruction *58 concerning the effect and weight to be given the testimony of an accomplice is a collateral issue and not required to be given by the trial court in the absence of a request therefor. State v. Crow, 465 S.W.2d 478 (Mo.1971), cert. denied 404 U.S. 847, 92 S. Ct. 152, 30 L. Ed. 2d 85 (1971); State v. Deiter, 446 S.W.2d 609 (Mo.1969). Also, where the trial court is not requested to do so, it is not required to instruct the jury as to any limited consideration to be given to prior convictions. State v. Wing, 455 S.W.2d 457 (Mo.1970), cert. denied 400 U.S. 1009, 91 S. Ct. 566, 27 L. Ed. 2d 621 (1971). No such instructions were requested in this case, and the trial court was therefore not required to give them. Rule 26.02 V.A.M.R.
We have examined the record as required by Rule 28.02 V.A.M.R. and find no error.
The judgment is affirmed.
SMITH, P. J., and SIMEONE and KELLY, JJ., concur.
NOTES
[1] State v. McCarthy, 336 S.W.2d 411 (Mo. 1960); State v. Randle, 2 Ariz.App. 569, 410 P.2d 687 (1966); People v. Renfro, 250 Cal. App. 2d 921, 58 Cal. Rptr. 832 (1967); State v. Hardesty, 261 Iowa 382, 153 N.W.2d 464 (1967); State v. Day, 293 A.2d 331 (Me. 1972); Cleveland v. State, 85 Nev. 635, 461 P.2d 408 (1969); State v. Tolliver, 5 Wash. App. 321, 487 P.2d 264 (1971); see also discussion in 52A C.J.S. Larceny § 118. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393420/ | 423 F. Supp. 801 (1976)
Johnnie L. HORN, Plaintiff,
v.
C. L. OSBORN CONTRACTING CO., Defendant and Third Party Plaintiff,
v.
BAMA UTILITY CONTRACTORS, INC., Third Party Defendant.
Civ. A. No. 75-105-COL.
United States District Court, M. D. Georgia, Columbus Division.
December 8, 1976.
*802 *803 Billy E. Moore and Edward W. Szczepanski, Jr., Columbus, Ga., for plaintiff.
S. E. Kelly, Jr., Kelly, Champion, Denney & Pease, Columbus, Ga., for defendant and third party plaintiff Osborn.
Richard A. Marchetti, of Page, Scrantom, Harris, McGlamry & Chapman, Columbus, Ga., for third party defendant Bama.
OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
ELLIOTT, Chief Judge.
This matter is before the Court on separate motions for summary judgment filed by the Defendant-Third Party Plaintiff, C. L. Osborn Contracting Co. (hereafter Osborn) and the Third Party Defendant, *804 Bama Utility Contractors, Inc. (hereafter Bama), and it is clear from a review of the entire record which has been developed that there is no controversy concerning any fact material to a consideration of these motions.
The Board of Water Commissioners of the City of Columbus, Georgia contracted with Osborn as a general contractor to construct certain improvements in its sewer system and thereafter Osborn subcontracted a portion of the work to Bama. Under the subcontract Bama was to perform all of the work in a designated area, a complete section of the work project being turned over to Bama for completion. In advance of entering into the subcontract with Bama, Osborn knew of the quality of work done by Bama and that Bama was experienced in the type of work to be undertaken. Bama was furnished with a copy of the plans and specifications applicable to the area where Bama was to perform its subcontract work and was furnished with a design plan which had been furnished to Osborn by the Board of Water Commissioners which was applicable to the work area subcontracted. Thereafter Bama used its own equipment and employees in carrying out its work under the terms of the subcontract and Osborn provided no equipment or employees with respect thereto. Bama hired, fired and supervised its own employees and Osborn did not at any time hire, fire or supervise any employee working with Bama and Osborn did not supervise any work activity performed by Bama or exercise any control or supervision over any employee of Bama. The Board of Water Commissioners furnished an engineer-inspector on the entire project and that inspector as well as an inspector for Osborn did inspect the work product of Bama, however, these periodic visits were only for the purpose of observing the progress that was being made toward completion of the job and did not involve any direction as to how the work was to be accomplished by Bama.
At all times mentioned herein the Plaintiff, Johnnie L. Horn, was an employee of Bama and was directly supervised by other employees of Bama and he was engaged in the laying of sewer pipe in an excavation or ditch. While so employed he sustained personal injuries on two occasions. On July 2, 1974, while the Plaintiff was working in a ditch excavated to a depth of approximately 16 feet, the side or sides of the ditch caved in causing certain personal injuries. Having recovered from the injuries sustained in that incident, he returned to his job and was working on the same project in another ditch approximately 9 feet deep when, on October 9, 1974, he sustained additional personal injuries when the side or sides of this ditch caved in.
The plaintiff concedes that he was an employee of Bama, and not of Osborn. He also concedes that the relationship of Bama to Osborn was that of an independent contractor, and because of the injuries above referred to he has received the benefits provided by the Workmen's Compensation insurance coverage carried by Bama. By this action he seeks to recover general damages from the general contractor, Osborn.
Osborn filed a third party action against Bama, claiming a contingent right to recover against Bama under an indemnity provision included in the subcontract in the event of any recovery by Plaintiff against Osborn.
The Plaintiff's complaint is brought in three counts. In the first count Osborn, the general contractor, is charged with negligence, and in the second count with gross negligence, and in the third count with wilful and wanton negligence, all of the counts being premised on the contention that Osborn permitted the Plaintiff to work in a trench improperly opened and failed to provide safeguards so that the ditch would not collapse, it being alleged that such negligent acts proximately caused the two incidents complained of and the personal injuries sustained by the Plaintiff. The Plaintiff contends that the general contractor was negligent in not bracing or shoring the ditch at the job site in compliance with the provisions of the Safety and Health Regulations for Construction pertaining to excavation, trenching and shoring as promulgated *805 by the United States Department of Labor; that it violated the provisions of its general contract entered into with the Board of Water Commissioners, which contract incorporated by reference said Regulations; and that it required the Plaintiff to engage in work which was inherently dangerous.
Georgia law applies in this case and § 105-501 of the Georgia Code Annotated establishes the general rule with regard to the non-liability of the employer who engages the services of an independent contractor, it being as follows:
"The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer."[1]
There are certain statutory exceptions to the general rule above quoted and the Plaintiff contends that the facts of this case bring his action within some of these exceptions. The first exception contended by the Plaintiff to be applicable is that codified in § 105-502(4), which is:
"The employer is liable for the negligence of the contractor (4) if the wrongful act is the violation of a duty imposed by statute."
In this connection the Plaintiff urges that the general contractor here violated the provisions of the Contract Work Hours and Safety Standards Act (40 U.S.C. § 327, et seq.) and the Occupational Safety Health Act of 1970 (29 U.S.C. § 651, et seq.) as those Acts apply to the excavation of the ditches and the shoring of the walls of the ditches in which the Plaintiff worked and in which he was injured.
Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. § 333) predated the Occupational Safety and Health Act of 1970 and applies to federally funded contracts for construction which are described at 29 CFR § 1926.11, et seq. The general contract in this case pertains to a local project and in no way indicates that it falls within the purview of a federally funded construction project or within the specific scope of § 107 of the Contract Work Hours and Safety Standards Act. It is true that when Congress passed the Occupational Safety and Health Act (hereafter OSHA) in 1970, it did, at 29 U.S.C. § 653(b)(2), include as a part of OSHA the standards previously promulgated by the Secretary of Labor under the provisions of the Contract Work Hours and Safety Standards Act. Also, under § 6 of OSHA (29 U.S.C. § 655) the Secretary of Labor was authorized by Congress to use already existing federal standards and incorporate them as they apply to employers encompassed within the scope of OSHA. The difference between the two pieces of legislation is that the safety standards promulgated under the Contract Work Hours and Safety Standards Act pertain only to federally funded projects and those promulgated under OSHA apply to all employers "affecting commerce". The latter mentioned legislation is on its face broader in scope, but even so, there is nothing in the record in this case to indicate that it would be applicable to these contracts because there is no evidence indicating that either Osborn or Bama were employers "affecting commerce".
Even assuming, however, that the provisions of OSHA would apply in this instance the Plaintiff's contention that this would provide an exception to the general rule of non-liability for acts of independent contractors would not be sustained because OSHA itself specifies (at 29 U.S.C. § 653(b)(4)):
"Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment."
*806 The clear and unmistakeable intent of Congress in incorporating the language immediately above quoted in OSHA has been recognized in a number of decisions by United States Circuit Courts of Appeal as well as by several District Courts. The Fifth Circuit Court of Appeals, in Jeter v. St. Regis Paper Co., 507 F.2d 973 (1975), and in Skidmore v. Travelers Insurance Company, 483 F.2d 67 (1973), and the Fourth Circuit Court of Appeals in Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (1974), and the Sixth Circuit Court of Appeals in Russell v. Bartley, 494 F.2d 334 (1974), and the District Court for the Northern District of Mississippi, in Hare v. Federal Compress and Warehouse Company, 359 F. Supp. 214 (1973),[2] and Otto v. Specialties, Inc., 386 F. Supp. 1240 (1974), and the District Court for the Western District of Kentucky in Cochran v. International Harvester Company, 408 F. Supp. 598 (1975), have all concluded that the Congressional intent in enacting OSHA was not to create an action for damages in favor of employees and that a violation of the OHSA requirements or regulations issued thereunder would not suffice to form a basis for such private right. In the Jeter case, supra, the plaintiff was injured and received Workmen's Compensation benefits from his employer and then sought to recover compensatory damages against the owner of the property on which work was being done for whom the plaintiff's own employer was working as an independent contractor. The trial court had ruled that no cause of action for a violation of the OSHA regulations could be implied to run in favor of a person who was not an employee of the violator against whom recovery was sought. In its affirmance the Court of Appeals said:
"Assuming without deciding that St. Regis may have violated the requirements of OSHA and the regulations promulgated thereunder by the Secretary of Labor, we affirm the trial court's charge and hold that no cause of action for such violations can be implied under OSHA to run in favor of a person who was not an employee of the violator against whom recovery is sought. . . . Nowhere in the language of the Act, its legislative history, or in the statutory declaration of purpose and policy in the Act itself is there the slightest implication that Congress considered OSHA creating a private right of action for violation of its terms. See 1970 U.S.Code Cong. & Admin.News, pp. 5177-5241; 29 U.S.C.A. § 651. The only provision in the statute which addresses itself to a private remedy clearly indicates that Congress did not intend OSHA to create a new action for damages in favor of employees. Section 653(b)(4) of the Act provides that
Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.
"It seems clear that Congress did not intend OSHA to create a new private cause of action, but, on the contrary, intended private rights to be unaffected thereby. . . .
"We have been unable to find a single case wherein a court has found such a private right of action created by OSHA. Although the results are not yet conclusive as to the litigation of private claims spawned by this relatively new Act, the courts so far have been unanimous in their rejection of contentions similar to *807 the one made by Jeter. This Court has previously rejected any private right by an employee against the executive officers of the employer. Skidmore v. Travelers Ins. Co., 356 F. Supp. 670 (E.D.La.), aff'd, 483 F.2d 67 (5th Cir. 1973). The Fourth Circuit has refused to imply an action against the employer itself, where state workmen's compensation was the exclusive remedy of the injured party. Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir. 1974). The Sixth Circuit has refused an employee-against-employer action, as well as an action by the employee against the supervising engineer, who was not his employer. Russell v. Bartley, 494 F.2d 334 (6th Cir. 1974). See also Hare v. Federal Compress & Warehouse Co., 359 F. Supp. 214 (N.D. Miss.1973); Dekle v. Todd, 132 Ga.App. 156, 207 S.E.2d 654 (1974).
"Although the facts here do not call upon us to decide definitively whether OSHA may create a private right of action by an employee against his employer, we perceive no base upon which to posit a claim on behalf of Jeter, a non-employee, against St. Regis. St. Regis owes no duty to Jeter under OSHA. There being no duty, there can be no breach. The district court was correct in not submitting this theory of action to the jury."
Jeter v. St. Regis Paper Co., 507 F.2d 973, at 976, 977 (1975).
Pursuing the matter further, if it should be again assumed that the provisions of OSHA applied in this situation it should be noted that OHSA establishes certain safety duties devolving upon an employer, but only with respect to his employees, and as we have already emphasized, the Plaintiff was not an employee of Osborn. Additionally, the courts considering these matters have consistently held that the violation of any duty under OSHA does not create directly or impliedly any type of civil remedy in favor of employees any employees.[3]
The Plaintiff also contends that this action falls within the ambit of another exception to the general rule that an employer is not liable for the acts of an independent contractor citing § 105-502(3) of the Georgia Code Annotated, which exception is as follows:
"The employer is liable for the negligence of the contractor (3) if the wrongful act is the violation of a duty imposed by express contract upon the employer."
directing the Court's attention to two provisions of the general contract between the Board of Water Commissioners and the general contractor Osborn, which read as follows:
Safety and Health Regulations: The contractor shall comply with Department of Labor Safety and Health Regulations for Construction promulgated under the Occupational and Safety Health Act of 1970 (PL 91-596) and under § 107 of Contract Work Hours and Safety Standards Act (PL 91-54).
And the following section found under a general provision of "Excavation":
(a) Bracing and Sheeting: The sides of all trenches and excavation for sewers and structures shall be securely held by staybracing, or by skeleton or by solid sheeting and bracing, as required by soil conditions encountered and in compliance with the Occupational Safety and Health Act of 1970.
The effect of these references to OSHA is to impose upon the general contractor by contract a duty to comply with the provisions of OSHA. However, the provisions of OSHA and the Regulations issued thereunder refer only to the duty of an employer to provide safe job sites by furnishing *808 places of employment free from recognized hazards that might cause death or serious harm to his employees (29 U.S.C. § 654(a)(1)). The Act defines an employer as:
". . . a person engaged in a business affecting commerce who has employees ..." (29 U.S.C. § 652(5))
and it defines the term "employee" as:
"... an employee of an employer who is employed in a business of his employer which affects commerce." (29 U.S.C. § 652(6))
It is, therefore, clear that the statute itself relates only to the obligation of an employer "to his employees" and does not extend to other persons such as employees of subcontractors. No legislative history nor statutory provision has been cited by the Plaintiff to support the proposition that Congress intended to create a duty on behalf of the employer with respect to persons other than its own employees. See Skidmore v. Travelers Insurance Company, 356 F. Supp. 670, at 672 (D.C.E.D.La., 1973), affm'd, 483 F.2d 67 (5 Cir. 1973). Therefore, any duty imposed upon Osborn by the provisions of the contract above quoted related to those duties imposed by OSHA and the Regulations issued thereunder, and were duties which existed only between employer and employee, and Plaintiff not being an employee of Osborn nor a party to the contract referred to, the alleged wrongful act was not a violation of a duty imposed upon the general contractor by the contract. Insofar as any reliance may be placed by the Plaintiff on the Regulations issued pursuant to OSHA, it is, of course, fundamental that the Regulations issued pursuant to statutory authority cannot exceed the scope of the statute itself and we have already noted that the statute specifies that it shall not be construed "in any manner" to affect the common law or statutory rights, duties or liabilities of employer and employees.
The references to OSHA in the contract between the Board of Water Commissioners and Osborn are at best general in nature and the Regulations which have been issued under that Act which relate to construction are numerous and varied and even those particular Regulations which pertain to excavation provide for several ways in which the standards may be met, depending on a number of distinct factors and existing soil conditions. Also, the cases which have construed the statutory exception in the Georgia Code above cited have emphasized the word "express" and the necessity that such contractual obligation be placed upon the particular employer as opposed to any independent contractor. It is clear that the parties to this contract contemplated that parts of the work were to be subcontracted by the general contractor. Indeed, the contract itself included within its terms specific sections relating to the subcontracting of work. The contract also included a provision that the general contractor should cause appropriate provisions to be inserted in subcontracts relative to the work to be done by subcontractors to bind subcontractors to the contract by the terms of the general conditions and other contract documents insofar as they were applicable to the work of the subcontractors (and this was accomplished in the subcontract in this case). Since such a duty could be discharged in any effective manner, any act of the subcontractor in negligently failing to dig the ditches properly or in erecting shoring to protect the sides would be a collateral tort for which the prime contractor would not be liable because this would not be a violation of an express contract obligation falling within the exception provided in the Georgia Code. See Southern Mills, Inc. v. Newton, 91 Ga.App. 738, 87 S.E.2d 109 (1955).[4]
*809 It is clear that by consistent reference to OSHA the Plaintiff is attempting to accomplish indirectly what cannot be accomplished directly. Being confronted with the statutory general rule that an employer is not liable for the negligent acts of an independent contractor, the Plaintiff seeks to hurdle this barrier by using OSHA as a springboard, thereby bootstrapping[5] his case into one of the comfortable exceptions on the other side.
The Plaintiff next contends that this case falls within another codified exception to the general rule that an employer is not liable for the negligent acts of an independent contractor, this exception being set out as § 105-502(2) of the Georgia Code Annotated, and being as follows:
"The employer is liable for the negligence of the contractor (2) if, according to previous knowledge and experience, the work to be done is in its nature dangerous to others, however carefully performed."
The Plaintiff has cited no case (and the Court is aware of none) in which it has been held that the laying of pipe within a trench or ditch, as in the case here, is an inherently dangerous activity, however carefully performed. The Plaintiff does cite one case in support of his contention, Community Gas Co. v. Williams, 87 Ga.App. 68, 73 S.E.2d 119 (1952), which dealt with the handling of propane gas, wherein the Georgia Court of Appeals determined such substance to be inherently dangerous. In that same opinion, however, the Court observed that:
"Where the work to be done is dangerous only because of the absence of proper care, the doctrine of nonresponsibility for the negligence of an independent contractor may apply ..." (Id. at p. 78, 73 S.E.2d at p. 127)
On the other hand, in Georgia Power Company v. Gillespie, 49 Ga.App. 788, 176 S.E. 786 (1934), the Court held that although electricity is an inherently dangerous substance, yet where there was a safe way to perform the work and the negligence resulting in injury was purely collateral to the work contracted to be done, the employer would not be liable. In Edmondson v. Town of Morven, 41 Ga.App. 209, 152 S.E. 280 (1929), the Court determined that the digging of a well with a steam engine was not inherently dangerous as an instrumentality likely to set fire to adjacent premises. In Ridgeway v. Downing Company, 109 Ga. 591, 34 S.E. 1028 (1899), the Supreme Court of Georgia held that the independent contractor in digging a trench for a building foundation did not properly guard the trench, but that this was negligence collateral to the results sought to be obtained, and in considering whether this constituted an exception to the general rule of non-liability that Court held that the excavation itself was not inherently dangerous so as not to invoke the exception cited by the Plaintiff in connection with a claim for personal injuries sustained by an individual who fell into the excavation. In the case of Hare v. Federal Compress and Warehouse Company, 359 F. Supp. 214 (U.S.D.C., N.D. Miss.1973) (heretofore referred to in footnote 2 of this opinion), in a suit by an employee of a subcontractor against the general contractor this identical issue was considered and there the Court determined that the construction of the sewer line which involved the digging of ditches was not inherently dangerous and, therefore, would not support the applicability of the exception to the general rule of the non-liability of the employer for the acts of an independent contractor.
The teaching of all of these cases is that if the work itself is not inherently dangerous and in and of itself does not involve the risk of harm to others, the exception to the *810 general rule of non-responsibility does not apply. In this case there is contained in the discovery material which forms a part of the record a complete description of the work performed by the Plaintiff and his co-workers in the excavation of the ditches in which he was laying sewer pipe at the time of each cave-in and the undisputed facts show that the subcontractor directed, controlled and excavated the ditches and directed and controlled and laid the sewer pipe, and there is no basis for a finding that the laying of sewer pipe within such ditches was in itself inherently dangerous, however carefully performed, nor that the bracing or shoring or "V"-ing of the ditches in which the Plaintiff worked at the time of each incident in issue was other than collateral to the work being performed for the result sought to be accomplished. Therefore, the the third exception to the general rule does not apply.
In Count Three of his complaint the Plaintiff alleges that the proximate cause of the injuries which he sustained was the "wilful and wanton negligence" of Osborn in permitting the Plaintiff to work in a ditch that had been improperly opened and in failing to provide safeguards to prevent the ditch from collapsing.
A "wilful failure" imports a conscious, knowing, voluntary, intentional failure, a purpose or willingness to make the omission, rather than a mere inadvertent, accidental, involuntary, inattentive, inert or passive omission. McGruder v. Georgia Power Company, 126 Ga.App. 562, 191 S.E.2d 305 (1972), rev. on other grounds, 229 Ga. 811, 194 S.E.2d 440. Mere negligence and wilfulness are not synonymous terms. Before a person charged with negligence can be held guilty of wilful or wanton negligence, the evidence must show that he knew his conduct would inflict injury or that on account of the attendant circumstances which were known to him or with knowledge of which he was chargeable, the inevitable or probable consequence of his conduct would be to inflict injury and with reckless indifference to the consequences of such conduct he committed the act or omitted to do his duty to avoid the threatened injury. In Southern Railway Company v. Davis, 132 Ga. 812, 65 S.E. 131 (1909), the Supreme Court of Georgia held that there must be affirmative evidence of facts tending to show wilfulness, wantonness, or the existence of particular circumstances from which an inference of a conscious indifference to consequences might legitimately be drawn, and in its opinion the Court stated:
"If this be not the law, then practically every case of negligent injury can be made the vehicle of submitting to the jury the question of wilfulness and wantonness, by merely using adjectives in describing the character of the negligence." (p. 819, 65 S.E. p. 134.)
In this case the undisputed facts show that the Defendant general contractor was not involved in any way in the excavation of the ditch in which the Plaintiff was injured. It did not open the ditch, it did not supervise the opening of the ditch, it did not exercise control over the time, manner and method by which the ditch was opened, it did not direct what safeguards should be or should not be used to prevent a cave-in of the ditch, and it did not by its conduct prevent in any way the use of any safeguards which might have been used by the subcontractor. In urging its motion for summary judgment Osborn has challenged the Plaintiff to show that there is basis for his allegations of wilful and wanton negligence and the Plaintiff has failed to show that there is any factual basis upon which this count can stand.
Consistent with the foregoing opinion, the Court concludes that the motion for summary judgment filed by the Defendant Osborn should be sustained, and since any liability of the Third Party Defendant Bama is contingent upon Osborn's liability, the motion for summary judgment filed by Bama must also be sustained. Accordingly, both motions are hereby sustained and it is directed that the complaint in its entirety be and it is hereby dismissed upon the merits.
NOTES
[1] It has been made clear in many Georgia decisions that the word "employee" in this section should be understood to mean "independent contractor".
[2] In passing, the Court notes with interest the striking similarity between the facts of the Hare case and the case now under consideration. In Hare an employee of a subcontractor engaged in laying sewer pipe at the bottom of a ditch was killed when the ditch caved in, and in a suit for the value of his life brought by his widow against the property owner and the prime contractor it was contended that provisions of OSHA had been violated and that this created a cause of action in her favor. The Court held that the employer of an independent contractor is generally not liable for the torts of the independent contractor and that OSHA did not modify that fundamental rule.
[3] The Plaintiff urges the applicability of 29 C.F.R. § 1926.16 which would apparently extend the responsibility of a general contractor for all of the work contemplated under the general contract even when a subcontract relationship exists under the provisions of the Contract Work Hours and Safety Standards Act, however, 29 C.F.R. § 1910.12(c) provides that that particular part of § 1926 pertains only to the Contract Hours and Safety Standards Act and does not pertain to the application of OSHA, which latter Act establishes duties for employers which are not dependent upon the existence of any contractual relationship with the Federal Government or upon any form of federal financial assistance.
[4] The Plaintiff also calls the Court's attention to another provision of the general contract between the Board of Water Commissioners and Osborn pertaining to the protection of persons and property and providing that the contractor shall be "responsible for all injuries or damages to persons or property that shall occur in connection with the performance of the work", and that the "contractor shall be as fully responsible to the owner for the acts and omissions of its subcontractors and other persons either directly or indirectly employed by them." The Court views these provisions as simply creating a contractual obligation of indemnity as between the contractor and the Board of Water Commissioners and the fact that damages may have been sustained by the Plaintiff on account of an independent negligent act or omission by the subcontractor would not be evidence of any violation of the contractual duty on the part of Osborn so as to make Osborn liable to the Plaintiff for special damages. See Rodgers v. Styles, 100 Ga.App. 124, at 132, 110 S.E.2d 582 (1959).
[5] There is no such verb in the English language but there should be. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393421/ | 500 S.W.2d 314 (1973)
Thelma B. BRADLEY, Plaintiff-Respondent,
v.
Eddie BUFFINGTON and Mozelle Buffington, Defendants-Appellants.
No. KCD 26169.
Missouri Court of Appeals, Kansas City District.
October 1, 1973.
*316 Scott O. Wright, Brown, Wright & Willbrand, Columbia, for defendants-appellants.
Carl F. Sapp, Sapp, Woods, Dannov & Orr, Columbia, for plaintiff-respondent.
Before DIXON, C. J., and PRITCHARD and SOMERVILLE, JJ.
SOMERVILLE, Judge.
This is an action for judgment on a note and foreclosure of a chattel mortgage securing the note. The note and chattel mortgage were executed comtemporaneously by Eddie Buffington and Mozelle Buffington (hereinafter referred to as defendants) on March 19, 1964, and ran in favor of A. M. Bradley and Thelma B. Bradley, husband and wife. A. M. Bradley died August 22, 1968, and Thelma B. Bradley (hereinafter referred to as plaintiff) filed this action September 17, 1969.
A. M. Bradley prepared the note and chattel mortgage and submitted both to defendants for execution. The note recited that the principal sum constituted a loan ". . . for the purchase of standing timber and for the operation of the Eddie Buffington Stave Mill . . .". In her petition, plaintiff alleged "default has been made upon the payment of said note according to its terms and provisions and due demand has been made upon the defendants for the payment of said note." Defendants, during the course of their pleadings, after trial motions and on appeal, have consistently maintained that they were not in default in making payment according to the terms of said note and that no evidence was introduced to prove they were in default. Defendants' position is equivalent to contending that the note had not reached maturity, therefore no legal right to bring this action for judgment on the note and foreclosure of the chattel mortgage existed. Plaintiff, on the other hand, during the course of trial and on appeal, maintained the note was a demand note and demand for payment had been made on January 20, 1966, which was unavailing.
A jury was waived and trial by court ensued on December 22, 1971. On January 12, *317 1972, judgment in favor of plaintiff was entered in the sum of $18,622.66 (representing $14,000.00 principal plus interest thereon at the rate of five and one-half percent per annum from January 20, 1966); the judgment further provided that the property described in the chattel mortgage be levied against and sold by the sheriff to satisfy the judgment, and that general execution issue in favor of the plaintiff for any deficiency. From this judgment, defendants perfected their appeal.
Appellate review of this action is de novo upon the law and the evidence, deferring to the trial court's findings as to controverted factual matters involving the credibility of witnesses, and the judgment of the trial court will not be disturbed unless it is clearly erroneous. Rule 73.01(d), V.A.M.R.; Independence Flying Service, Inc. v. Ailshire, 409 S.W.2d 628 (Mo. 1966); Norman v. Durham, 380 S.W.2d 296 (Mo.1964).
The various contentions of the parties on appeal go begging absent judicial construction of the note and chattel mortgage, thus making it necessary to prescind the note and chattel mortgage before addressing the issues on appeal.
The note, far from being perspicuous, reads as follows:
"PROMISSORY NOTE
----------------
$14,000.00 Date March 19, 1964
----------------
As follows after date, we promise to pay to
the order of A. M. BRADLEY and THELMA
B. BRADLEY, husband and wife, FOURTEEN
THOUSAND AND NO/100 ................... DOLLARS
For value received negotiable and payable without defalcation or discount and with interest as hereinbelow set out.
The above money is being loaned for the purchase of standing timber and for the operation of the Eddie Buffington Stave Mill, located in Centralia, Missouri. The makers of this note are to pay 2% of Gross Sales to the holder of this note each 30 days. The holder of this note is to have a Chattel Mortgage on stave mill equipment listed in the Chattel Mortgage.
If for any reason the stave mill is not operating for a period of 120 days, the makers of this note agree to pay the holder of this note 5½% interest on the unpaid principal balance.
Beginning the second year, the makers of this note have the privilege of paying one-fourth back in any calendar year after that time.
The makers of this note do not have the privilege of assigning this note, and any time a sale is made of either the mill or the standing timber to anyone else, this note becomes immediately due and payable.
(s/d) Eddie Buffington
Eddie Buffington
(s/d) Mozelle Buffington
Mozelle Buffington"
The chattel mortgage, separate from the note, but executed contemporaneously with it, specifically referred to the note and relative thereto provided, "And in case default be made in the payment of the debt abovementioned or any part thereof, or of the interest due thereon, on any day when the same ought to be paid, then the whole sum shall at the election of the said A. M. Bradley and Thelma B. Bradley, his wife, become immediately due and payable." Also apropos of this action, the chattel mortgage additionally provided that default in payment of the note constitutes a basis for foreclosure.
The Uniform Negotiable Instruments Act, Chapter 401, RSMo 1959, V.A. M.S. bears initially on construction of the note since it was executed March 19, 1964, a date prior to July 1, 1965, the effective date of the Uniform Commercial Code (L. 1963, p. 637, § 10-102). In the context of the Uniform Negotiable Instruments Act, is the note negotiable or non-negotiable? Resolve of this basic question is the genesis for construction of the note. Section 401.001(3) RSMo 1959, V.A.M.S., requires that a note "Must be payable on demand, *318 or at a fixed or determinable future time;" in order to be negotiable. Section 401.004, subd. 2, RSMo 1959, V.A.M.S., provides, "An instrument payable upon a contingency is not negotiable and the happening of the event does not cure the defect." The note in question recites that it is payable as "hereinafter set out". Next, after a recitation as to the purpose of the loan, the following language appears, "The makers of this note are to pay 2% of Gross Sales to the holder of this note each 30 days". This language standing alone, and even more so when read in conjunction with all other language contained in the note, patently discloses the intent of the parties to be that the principal of the note was payable in installments, the amount of each principal installment mathematically arrived at by calculating 2% of gross sales, if any, generated during successive thirty day periods. The reference to "2% of Gross Sales" is not subject to the construction of constituting the rate of interest to be borne by the principal or designating a particular fund out of which the principal installments are payable. Defendants' "promise to pay", viz, "2% of Gross Sales _ _ _ each 30 days" was neither "payable on demand" nor "at a fixed or determinable future time" as required and defined in Section 401.001(3) RSMo 1959, V.A.M.S. At best, the "promise to pay" was subject to a series of contingencies, 30 day periods during which the stave mill generated gross sales, the occurrence and amounts of which were uncertain, and, therefore, not payable "at a fixed or determinable future time", thus excluding negotiability by virtue of Sections 401.001(3) and 401.004, subd. 2, RSMo 1959, V.A.M.S. Mitchell v. Health Culture Co., 349 Mo. 475, 162 S.W.2d 233 (1942) and Bank of Evansville v. Kurth, 167 Wis. 43, 166 N.W. 658 (1918). Plaintiff contends the note must be construed as a demand note since Section 401.007, subd. 1(2) RSMo 1959, V.A.M.S., provides a note is payable on demand "when no time for payment is expressed". This contention is, at best, specious, and is rejected. The note expressed a time for payment, even though it was neither "payable on demand" or "at a fixed or determinable future time". Adoption of plaintiff's postulate would nullify the intent of the parties to provide for principal payments in mathematically calculable installments.
Having ruled the note to be a non-negotiable instrument, it is necessary to turn to general rules of construction applicable to contracts to ascertain the additional and encompassing intent of the parties, since the Uniform Negotiable Instruments Act does not apply to or affect the rights or liabilities of parties with respect to non-negotiable instruments. First Nat. Bank of Kansas City v. Produce Exchange Bank of Kansas City, 338 Mo. 91, 89 S.W.2d 33 (1935). Intent is gleaned from the four corners of the instrument and disclosed by the language used as contradistinguished from any secret intent. Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262 (1940); Bay v. Stout Sign Company, 301 S.W.2d 786 (Mo.1957); Kerrick v. Schoenberg, 328 S.W.2d 595 (Mo.1959); and Monterosso v. St. Louis Globe-Democrat Publishing Co., 368 S.W.2d 481 (Mo. 1963). Four ancillary rules of construction are pertinent: (1) two instruments executed contemporaneously, as part of the same transaction, justify construing both together as if one instrument [Houck v. Frisbee, 66 Mo.App. 16 (1896); Trautman v. Schroeder, 230 Mo.App. 985, 93 S.W.2d 303 (1936); and Slyman v. Simon, 226 Mo.App. 1000, 48 S.W.2d 140 (1932)]; (2) where an instrument is open to two constructions, one making it legal, and the other illegal, the legal construction is preferable [Wiggins Ferry Co. v. Chicago & A. R. Co., 128 Mo. 224, 27 S.W. 568 (1894) and Perbal v. Dazor Manufacturing Corp., 436 S.W.2d 677 (Mo.1968)]; (3) an instrument will not be construed as conferring "a perpetuity of right" or imposing a "perpetuity of obligation" unless such intent is unequivocally expressed in the instrument [Paisley v. Lucas, supra, and James Maccalum Printing Co. v. Graphite Compendius Company, 150 Mo.App. 383, *319 130 S.W. 836 (1910)]; and (4) any ambiguity in an instrument will be construed more strongly against the party who prepared the instrument [McIntyre v. McIntyre, 377 S.W.2d 421 (Mo.1964); Robson v. United Pacific Ins. Co., 391 S.W.2d 855 (Mo.1965)]. A caveat should be noted with respect to (1), namely, a negotiable promissory note and contemporaneously executed mortgage will not be construed as one instrument where to do so renders the note non-negotiable. Owings v. Mackenzie, 133 Mo. 323, 33 S.W. 802 (1896); Morgan v. Mulcahey, 298 S.W. 242 (Mo.App.1927); and Illinois State Bank of Quincy v. Pedersen, 350 S.W.2d 102 (Mo.App.1961).
The judgment rendered disclosed the trial court construed the note as a demand note; additionally, it construed the reference to "2% of Gross Sales" as interest. Rationale has heretofore been delineated as to why the reference to "2% of Gross Sales" should be construed as a provision for payment of the principal of the note in installments, therefore, by necessity, excluding said provision as having any reference to interest. There are two additional compelling reasons why the reference to "2% of Gross Sales" is not interest. One, the percentage bears no relationship whatsoever to the principal amount of the note. Two, although the note is not usurious on its face, plaintiff's conclusion that "2% of Gross Sales" constituted interest would, on the basis of the record, result in a usurious rate of interest when equated with the principal amount of the note (Section 408.070 RSMo 1959, V.A.M.S.), and this illegal result would be compounded as and when the unpaid principal amount was successively reduced.
There is no unequivocal intent expressed in either the note or contemporaneously executed chattel mortgage that the makers could defer payment of the principal of the note into perpetuity by simply failing to operate the stave mill; to construe the note as permitting the defendants to defer payment of the principal into perpetuity would create a legal hiatus that was obviously not intended by the parties. Paisley v. Lucas, supra, and James Maccalum Printing Co. v. Graphite Compendius Company, supra. To avoid this obvious legal hiatus, a reasonable construction of the note compels the conclusion that failure of the defendants to operate the stave mill for a reasonable period of time vested plaintiff with an option to accelerate the maturity date of the note. Since failure of the defendants, for any reason, to operate the stave mill for 120 days imposed upon them an obligation to pay "5½% interest on the unpaid principal balance", likewise, failure of the defendants to operate the stave mill for 120 days appears to be "a reasonable period of time" for vesting the plaintiff with an option to accelerate the maturity date of the note.
A ratiocinative application of the above rationale and principles impels the following construction of the note insofar as any viable issues on appeal are concerned: (1) the note is a non-negotiable instrument; (2) the note is not a demand note; (3) the principal of the note is payable in installments, the amount of each principal installment mathematically arrived at by determining 2% of the gross sales generated by the Eddie Buffington Stave Mill during successive 30 day periods (starting on the date of said note), with said principal installments due and payable on the 30th day of each 30 day period during which gross sales are generated; (4) the note is non-interest bearing unless the Eddie Buffington Stave Mill fails, for any reason, to operate for a period of 120 days, in which event the "makers of this note agree to pay the holder of this note 5½% interest on the unpaid principal balance"; (5) at the option of the holder the maturity date of the note may be accelerated by (a) failure of the makers to pay any principal installment when due, (b) failure of the makers to pay any interest payment when due, or (c) failure of the makers to operate the Eddie Buffington Stave Mill for a period of 120 days; and *320 (6) the maturity date of the note is accelerated by (a) sale of the standing timber by makers to a third party, or (b) sale of the Eddie Buffington Stave Mill by makers to a third party.
Plaintiff in her petition pleaded "that default has been made upon the payment of said note according to its terms and provisions". The aforementioned is tantamount to pleading that the note had become due or reached maturity, and such is an essential allegation in order to state a cause of action in a suit brought upon a note. Spears v. Bond, 79 Mo. 467 (1883). As a corollary, the burden of proof rests upon a plaintiff regarding all allegations required to state a cause of action. Felker v. Metropolitan Life Insurance Company, 288 S.W.2d 26 (Mo.App.1956); Milliken v. Trianon Hotel Company, 364 S.W.2d 71 (Mo.App.1962).
In view of the construction of the note hereinabove set forth, it was incumbent upon plaintiff to prove that there were amounts representing 2% of gross sales of the Eddie Buffington Stave Mill during a particular 30 day period that were not paid by defendants to plaintiff and her husband, while he was alive, or to plaintiff after her husband's demise, or that defendants failed to operate the stave mill for a period of 120 days, which would constitute a basis for vesting plaintiff with an option to accelerate the due date or maturity of said note. The record is silent in both respects. Moreover, there was no evidence whatsoever that the standing timber or stave mill had been sold.
The referred to evidentiary void in the record did not occur as the result of a ploy on plaintiff's part to secure any trial advantage, but, rather, from an erroneous, but honest, belief that the note was a demand note. Plaintiff should be given the opportunity to adequately and fully develop the evidence, if there be any, regarding the void mentioned.
Construction of the note, coupled with plaintiff's failure to carry the burden of proof imposed upon her, being dispositive of the appeal, it is unnecessary to consider other points raised by the defendants.
In the light of the foregoing construction given the note, the judgment rendered by the trial court can not stand. The judgment is reversed and the cause is remanded for a new trial consistent with construction of the note as set forth in this opinion.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393423/ | 105 N.J. Super. 72 (1969)
251 A.2d 147
SILCO AUTOMATIC VENDING COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF,
v.
FRANK A. PUMA, LICENSE INSPECTOR, CENTRAL LICENSE BUREAU, CITY OF ELIZABETH AND THE MAYOR & CITY COUNCIL OF THE CITY OF ELIZABETH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS. DIERICKX MUSIC, INC., A NEW JERSEY CORPORATION, PLAINTIFF,
v.
FRANK A. PUMA, LICENSE INSPECTOR OF THE CITY OF ELIZABETH AND THE MAYOR & CITY COUNCIL OF THE CITY OF ELIZABETH, DEFENDANTS.
Superior Court of New Jersey, Law Division.
Decided February 5, 1969.
*79 Mr. Allan Gutfleish for plaintiff Silco Automatic Vending Company (Messrs. Weitz, Gutfleish and Wurtzel, attorneys).
Mr. Joseph A. Hayden for plaintiff Dierickx Music, Inc.
Mr. Frank P. Trocino, First Assistant City Attorney, for defendants (Mr. Edward W. McGrath, City Attorney, attorney; Mr. John R. Weigel on the brief).
FELLER, J.S.C.
These consolidated actions in lieu of prerogative writs seek to compel the issuance of coin-operated music machine licenses and to declare invalid section 7 of ordinance 260 of the City of Elizabeth.
With reference to the Silco Automatic Vending Company case it is stipulated that when the ordinance was enacted on February 8, 1967, and ever since that time, there were never any licenses available because those outstanding were in excess of the number allowed by the ordinance. At present there are 272 coin-operated music system licenses and 192 for other types of amusement devices. Puma is *80 the license inspector of Elizabeth. Examination of applicants under ordinance 260 is not his sole function; there are others. When he receives an application for an operator's license under the ordinance he sends it to the police department to check on the background and criminal record of the parties involved in order to determine whether they meet the ordinance requirements. The police department then sends the application to the State Police Bureau and the Federal Bureau of Investigation to determine if there were any offenses committed by the persons named in the application. The police department makes no charge for the work so performed. The budget for Puma's department was approximately $12,700 for 1966, $13,700 for 1967, and $14,100 for 1968. There are 12 individuals who hold an operator's license (fee $100) where only one music machine is involved, four people who hold licenses for more than one music machine (fee $200), two who pay a $2,000 operator's license.
Plaintiff applied for a license in June 1966. On July 6, 1966 its counsel said that if he did not hear from Puma by July 8 he would assume the application had been disapproved and immediately commenced a suit requiring that the license be issued; that Puma wrote on July 7, 1966 acknowledging receipt of the letter and stating that Silco's application had been referred to the police department for the customary investigation, and that upon receipt of its report and recommendations he would notify counsel; that no other word was ever received from Puma and his files do not show the receipt of any police report on Silco; that there is no derogatory information in Puma's files as of then or now concerning Silco.
The following stipulations were made by counsel in the Dierickx Music, Inc. case:
Plaintiff applied on June 7, 1966 for an operator's license under the then existing ordinance and paid the prescribed fee to the license inspector. The inspector rejected the application solely on the ground that the applicant *81 was a nonresident of Elizabeth and therefore barred by the provisions of the ordinance. This resulted in court proceedings in December 1966, in which it was held that the section of the ordinance barring nonresidents was unconstitutional. On January 10, 1967 Dierickx' attorney wrote license inspector Puma demanding that he issue the license applied for the preceding June since the bar to its issuance was now removed. Puma replied, advising that no new licenses were being issued because there was then pending before the city council a new ordinance regulating coin-operated music devices. The check that had accompanied the original application was returned. On January 26, 1967 Dierickx applied for a license under new ordinance 260 and tendered the prescribed fee. The license inspector returned the check with a letter advising that a license could not be issued because the licenses than in existence exceeded those permitted by the ordinance.
I
Section 1 of ordinance 260 provides as follows:
"On and after the effective date of this Ordinance, the operation and maintenance of pool and billiard tables, bowling alleys, music and all other amusement or entertainment machines or devices in which coins are inserted, within the City of Elizabeth, in public or quasi-public places, or in any public building, store or other place wherein the public are invited, or wherein the public may enter, shall be licensed by the License Inspector of the City of Elizabeth, and no person shall place, operate or maintain the same without having first obtained a license for that purpose."
Plaintiffs contend that Elizabeth is without statutory authority to enact an ordinance providing for the licensing of coin-operated music machines. Defendants contend that the statutes give the municipality such authority.
N.J.S.A. 40:52-1(f) provides that
"The governing body may make, amend, repeal and enforce ordinances to license and regulate:
*82 * * * * * * * *
f. Theatres, cinema and show houses, opera houses, concert halls, dance halls, pool or billiard parlors, bowling alleys, exhibition grounds, and all other places of public amusement, circuses and traveling or other shows, plays, dances, exhibitions, concerts, theatrical performances, and all street parades in connection therewith." (Italics supplied)
A municipality ordinarily may regulate the use of juke boxes, mechanical music machines, player pianos, phonographs and radios, where they are employed for amusement on a commercial basis or in commercial places, such as restaurants, ice cream parlors, saloons and dance halls, and may impose penalties for violation of its regulations. Authority to regulate these instruments may be derived from a grant of power to regulate "amusements," or in any event, under the municipal police power to protect and preserve the public morals and welfare. Theatrical, operatic and musical performances and motion picture shows have always been recognized as proper subjects of police inspection and control. In comparison, regulation and supervison of commercially operated juke boxes is, at best, merely a question of degree.
While mechanical music machines, including juke boxes, are not nuisances per se, they may become nuisances in fact where, by reason of the manner in which they are managed, their location and other circumstances, they are harmful to the public morals or welfare. The fact that they can be located in many places and that there is broad opportunity to select records of varying quality and worth makes it desirable to protect the public morals and welfare with respect to them.
Municipal regulation of music machines may relate to their possession, location, installation, and use or manner of operation, i.e., pieces played and manner of playing. Accordingly, an ordinance may prohibit the playing of such instruments at any place where they disturb the peace and quiet of the neighborhood. The municipality may also *83 prohibit the playing of vulgar or obscene selections. Provision for periodic inspections insures that juke boxes and the like do not become public nuisances. An ordinance like the one under consideration must, of course, be reasonable and not oppressive or discriminatory. But it is not void as discriminatory merely because it is not applicable to music stores which occasionally play phonographs or radios near their doorways to attract customers.
It is a general rule that legislative determinations embodied in municipal ordinances are for the duly constituted municipal authorities and not for the courts, and that the wisdom of municipal legislation is not for the judiciary but for the municipal legislative body. Hence, a court is not concerned with the merit or wisdom of municipal legislation on juke boxes and mechanical players. However, the power of a municipality to enact such legislation must be determined by a court when the issue properly is before it. Accordingly, the relationship of such legislation to the public safety, morals and general welfare, its reasonableness, whether or not it is discriminatory all being questions going to the municipal power, are subject to judicial review. More specifically, it is for the courts to determine whether particular automatic musical instruments or the like are proper subjects for the exercise of the police power and whether the regulation of such instruments is reasonably necessary to the comfort, morals, safety or welfare of the community, since these questions relate to the existence of municipal power. But a court cannot judicially declare that an ordinance which aims at regulation of commercial juke boxes and their inspection is so patently arbitrary and so unreasonable an interference with legitimate business as not to be warranted by any rational considerations of public safety, morals and general welfare. 7 McQuillin, Municipal Corporations (3d ed.), sec. 24.215, pp. 40-43. See also Lamere v. City of Chicago, 391 Ill. 552, 63 N.E.2d 863, 866 (Sup. Ct. 1945).
*84 Thus, N.J.S.A. 40:52-1(f), which gives to municipalities the power to regulate places of public amusement, would seem to give to municipalities the statutory authority to license coin-operated music machines in furtherance of the police power to regulate public amusements.
This conclusion is in harmony with Art. IV, sec. 7, par. 11 of the New Jersey Constitution (1947) which provides in effect that any law concerning municipal corporations formed for local government shall be liberally construed in their favor, and the powers of such municipal corporations includes not only those granted in express terms, but also those of necessary or fair implication or incident to the powers expressly conferred or essential thereto and not inconsistent with or prohibited by the State Constitution or by law.
Courts are enjoined by our Constitution, Home Rule Act and Optional Municipal Charter Law to interpret statutes liberally in favor of existence of local power to deal with local needs. Whelan v. New Jersey Power and Light Co., 45 N.J. 237, 251 (1965).
N.J.S.A. 40:52-1 does not specifically authorize municipalities to license juke box machines and the cases do not seem to clarify this question.
In Gilbert v. Town of Irvington, 20 N.J. 432 (1956), the court held that the ordinance establishing fees for the licensing of coin-operated milk vending machines was unreasonable, discriminatory and confiscatory, and was illegal and void because the fees charged were excessive. However, the court stated (at pp. 435 and 436) that the power of a municipality to regulate or license emanates from N.J.S.A. 40:52-1 and N.J.S.A. 40:52-2, and the right of a municipality to do so and to exact fees for revenue is dependent upon and limited by the power so conferred. However, the court did not designate the subsection of the above statutes which authorizes the licensing of coin-operated milk vending machines. Apparently there is no such provision included in N.J.S.A. 40:52-1.
*85 N.J.S.A. 40:52-2 gives the governing body the right to fix the fees for licenses, which may be imposed for revenue; to prohibit all unlicensed persons and places and vehicles, businesses and occupations from acting, being used or carried on, and to impose penalties for violations of licensing ordinances and to revoke any license for sufficient cause.
In Mayor & Council of City of Hoboken v. Bauer, 137 N.J.L. 327 (Sup. Ct. 1948), the ordinance provided, among other things, for the regulation and control of the use of automatic musical instruments and the like, and provided that such machines should not be installed without a license. The court held that the ordinance was in conflict with the Fourteenth Amendment of the United States Constitution and Art. I, par. 1 of the New Jersey Constitution (1844) because it did not set up any norm or standards for the supervision of licenses. However, the court said nothing about any statute which authorized the adoption of said ordinance. Apparently, this question was not raised.
N.J.S.A. 40:48-1(20) provides, in effect, that the governing body of every municipality may make, amend, repeal and enforce ordinances to regulate machinery, scenery, lights, wires and other apparatus, equipment or appliances used in all places of public amusement. Thus, a governing body is given the authority to regulate apparatus, equipment and appliances in all places of public amusement.
N.J.S.A. 40:48-2 provides as follows:
"Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this State or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law."
This section constitutes an express grant of broad general police powers to a municipality, and under it a municipality can take such action as it deems necessary for the good government, *86 order and protection of persons and property and the health and general welfare of the municipality, subject to constitutional and statutory limitations. Kirzenbaum v. Paulus, 51 N.J. Super. 186 (Law Div. 1958), affirmed 57 N.J. Super. 80 (App. Div. 1959).
Thus, in the event that an enumerated power is not deemed sufficient (such as N.J.S.A. 40:52-1 in this case), and provided the ordinance adopted is not contrary to the laws of this State or of the United States, by N.J.S.A. 40:48-2 a municipality may pass an ordinance as long as it is for any of the purposes set out therein. This section is an express grant of broad general police powers to muncipalities. Fred v. Mayor, etc., of Old Tappan, 10 N.J. 515 (1952). However, it is not a licensing statute.
In Fred the court said:
"The suggestion is made that the Legislature has provided other more specific methods of dealing with the problems arising from the removal of soil and that, therefore, an ordinance regulating such removal is inconsistent with these other methods. Admittedly when the Legislature has prescribed the procedure for dealing with specific local problems, a municipality is not free to deal with those problems without regard for the legislative prescription, Magnolia Development Co., Inc. v. Coles, supra, 10 N.J. 223, 227 (1952). In the instant case, however, we discern no other legislative scheme subverted by a regulatory ordinance of the type here involved." (at p. 521)
Applying this rule to the present case, it would seem that under N.J.S.A. 40:52-1 the Legislature has provided more specific methods of dealing with the power to license. However, in the instant case, under the provisions of N.J.S.A. 40:48-1(20), N.J.S.A. 40:49-2 and N.J.S.A. 40:52-1(f) there seems to be no legislative scheme subverted by a regulatory ordinance of the type here involved.
The New Jersey State League of Municipalities has furnished information to the effect that 71 municipalities had similar ordinances as of two years ago. The fact that they all have enacted juke box license ordinances should *87 be considered in determining the question of the validity of this ordinance. In re Hudson County, 106 N.J.L 62, 75 (E. & A. 1928). See also Presbyterian Church of Livingston v. Division of Alcoholic Beverage Control, 53 N.J. Super. 271 (App. Div. 1958); State v. Kelsey, 44 N.J.L. 1 (Sup. Ct. 1882); 2 Sutherland, Statutory Construction (2d ed.) sec. 477, p. 895. Among these municipalities are: Camden, Cranford, East Orange, Hoboken, Irvington, Jersey City, Kenilworth, Maplewood, Metuchen, New Brunswick, Paramus, Princeton, South Amboy, Scotch Plains, Trenton and Westfield.
Therefore, it would seem that under the provisions of N.J.S.A. 40:48-1(20), N.J.S.A. 40:48-2 and N.J.S.A. 40:52-1(f), the power of municipalities to license coin-operated music machines can be "spelled out."
II
Plaintiffs contend that section 7 of Elizabeth ordinance No. 260 is invalid and unconstitutional in that it arbitrarily limits the number of licenses. Section 7 provides:
"The number of music machines in the City of Elizabeth and all other amusement devices in which coins are inserted, shall be limited as follows: (a) in the case of music machines, licenses shall be issued for no more than two hundred fifty (250) machines, and (b) in the case of all other types of amusement and entertainment machines or devices, licenses shall be issued for no more than two hundred (200); provided, however, that nothing herein contained shall be deemed to prohibit the renewal of any existing license, the substitution of any licensed machine or transfer of a license for a machine from one premises to another pursuant to the provisions of this Ordinance."
Plaintiffs argue that this ordinance violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and further, that there is no statutory authority granting municipalities the right to place a limitation on licenses of this type.
*88 Juke boxes and similar machines placed in taverns, restaurants, dine-and-dance establishments, and other places of public resort are subject to police supervision and licensing under the police power. 8 McQuillin, Municipal Corporations (3d ed.), sec. 26.153, p. 400.
The constitutional provisions that any law concerning municipal corporations formed for local government shall be liberally construed in their favor has been declared fully applicable to a business and occupation licensing ordinance. Brough of Brielle v. Zeigler, 73 N.J. Super. 352 (Cty Ct. 1962). As stated supra, this constitutional provision states that the power of such municipal corporations includes not only those granted in express terms, but also those of necessary or fair implication or incident to the power expressly conferred or essential thereto and not inconsistent with or prohibited by the New Jersey Constitution or law.
Under this provision, does Elizabeth, which has the power to issue music machine licenses, also have the power to restrict the number of licenses issued under the necessary or implied powers incident to the powers conferred in furtherance of the police power?
The tendency in this State before the adoption of the 1947 Constitution was to prohibit the limitation of licenses without specific statutory authority. See McKim v. Village of South Orange, 133 N.J.L. 470 (Sup. Ct. 1945). N.J.S.A. 33:1-40, which limits the number of licenses to sell alcoholic beverages at retail and gives the governing body the right to enact by ordinance that no more than one retail license shall be granted, and N.J.S.A. 40:162A-2, which gives the governing body of any village in counties of the first class the right to limit the number of public scavenger licenses in the village to one or more in accordance with the needs and best interest of the village, were enacted before 1947.
It should be noted, however, that these two statutes give the authority to limit these types of licenses to one. This is vastly different from the present case where Elizabeth limits *89 the number of licenses to 200 and 250. Furthermore, if plaintiffs are correct in contending that section 7 violates the Equal Protection Clause of the Fourteenth Amendment, then N.J.S.A. 33:1-40 and N.J.S.A. 40:162A-2, which permit the adoption of ordinances limiting the number of certain types of licenses, are also a violation of that clause.
The Fourteenth Amendment is applicable to state statutes as well as municipal ordinances. 9 McQuillin, op. cit. (3d rev. ed.), sec. 26.191, p. 493, states that generally, under the power to regulate and license liquor vending places, a municipal corporation can limit the number of licenses to be issued to vendors and vending establishments. Town of West Hartford v. Willets, 126 Conn. 266, 5 A.2d 13 (Sup. Ct. Err. 1939); Gartland v. Talbott, 72 Idaho 125, 237 P.2d 1067 (Sup. Ct. 1951); State ex rel. Howie v. Common Council of City of Northfield, 94 Minn. 81, 101 N.W. 1063 (Sup. Ct. 1902); State ex rel. Dixie Inn v. City of Miami, 156 Fla. 784, 24 So.2d 705, 163 A.L.R. 577 (Sup. Ct. 1946). An ordinance limiting the number of licensed liquor outlets is a regulatory, as distinguished from a prohibitive, measure and it should be based on a determination by municipal legislative authorities of a policy in the public interest. An ordinance must be enacted or a formal regulation adopted and promulgated. 9 McQuillin, op. cit., sec. 26.191, p. 494; Borough of Fanwood v. Rocco, 33 N.J. 404 (1960).
Cutaio v. Board of Health of City of Elizabeth, 36 N.J. Super. 565 (App. Div. 1955), involved an ordinance which limited to 20 the number of licenses for poultry slaughter houses. The court said (at p. 569) that "We are not concerned with the validity of the numerical limitation and express no opinion on it."
Furthermore, in Borough of Fanwood v. Rocco, supra, the court stated:
"Indeed, even where the municipal governing body passes an ordinance limiting the number of taverns and package stores it may reasonably decline to issue a license beyond a number less than the maximum prescribed in the ordinance." (at p. 412) *90 And in Bumball v. Burnett, 115 N.J.L. 254 (Sup. Ct. 1935), the court held:
"Apart from this, and assuming the facts claimed, to wit, that the ordinance itself placed no limit on the number of licenses to be issued, and the resolution of council to grant no more, was adopted after prosecutor's application and one other were already filed, we see no illegality whatever in the refusal of a particular license, at least so long as the refusal is not shown to be fraudulent, corrupt, or inspired by improper motives. Nothing of the kind appears in this case. Prosecutor argues apparently that a liquor license is to be obtained and is obtainable on the same theory as a license to carry on, say a grocery business, demandable by any respectable citizen on payment of the prescribed fee: but that is not the case. The sale of intoxicating liquor is in a class by itself. Paul v. Gloucester County, 50 N.J.L. 585, 595. `No one has a right to demand a license; license is a special privilege granted to the few, denied to the many.' Id. 596. `There is no inherent right in a citizen to sell intoxicating liquors by retail. It is not a privilege of a citizen of the State of the United States.' Meehan v. Board of Excise Com'rs, 29 N.J.L.J. 370 [73 N.J. Law, 382], 64 Atl. Rep. 689. See, also, Hagan v. Town of Boonton, 62 N.J.L. 150.
One phase of the present argument for the writ seems to be that as the ordinance (as claimed) says nothing about the number of licenses to be issued, the borough council has no power to call a halt until, with a slate clean of pending applications, it ordains a limit, or at least fixes a limit by resolution: but we see no merit in this. If the ordinance had fixed one hundred as a limit, still the council, in its discretionary power to license or not to license, could stop short of that number at any point, or could license A and refuse B. As a matter of history, in this very county of Somerset a quarter of a century ago, when licenses were controlled by the Court of Common Pleas, and there was no legal limit on the number, that court announced that, in its opinion, there were enough licensed places in the county, and no more licenses would be granted until further order. No question of the legality of this action was ever formally raised." (at pp. 255-256)
Although the cases cited from New Jersey and other states apply principally to liquor licenses, the limitation of these licenses is a valid exercise of the police power, just as the limitation of licenses for juke boxes is a legitimate exercise of the police power. Such limitation is not prohibitory. In Gartland v. Talbott, supra, the court said:
*91 "A limitation of the number of licenses which will be issued for the sale of intoxicants within a municipality or within a given area is not of itself prohibitory, and is recognized as a legitimate regulation tending to promote public health, safety and welfare within the police power."
Furthermore, in State ex rel. Howie v. Common Council of Northfield, supra, the court held (at pp. 1063-1064) that the power given to council to regulate and control licenses to sell intoxicating liquor includes the power to do all that is deemed in the judgment of council for the best interests of the municipality and its inhabitants. It necessarily confers the power to limit the number of licenses to be granted when, in the judgment of council, the welfare of the city suggests such action. As the Northfield court said, if the authorities were required to license every applicant who complied with a prescribed set of conditions, the authority would be changed from one of regulation and control to one of taxation. See also State ex rel Hewlett v. Womach, 355 Mo. 486, 196 S.W.2d 809 (Sup. Ct. 1946); Landman v. Kizer, 195 Tenn. 13, 255 S.W.2d 6 (Sup. Ct. 1953). Were a municipality required to issue licenses to every applicant who complied with the standards, it is possible that this would create a situation which would confront the police with an impossible task of police inspection and control.
In view of the above authorities, it would seem that the power given to the governing body in the present case to limit the number of coin-operated music machines under section 7 of the ordinance is not of itself prohibitory and is a legitimate regulation tending to promote health, safety and welfare within the police power. If, in the judgment of that body, the best interests of the city require such regulation, this power to limit the number of licenses is a proper exercise of the police power.
The power to regulate gives authority to impose reasonable restrictions and restraints upon the activity or matter regulated. The power to regulate implies a power of restrictions and restraint, not only as to the manner of conducting *92 a specific business or other activity, but also as to the place in or upon which activity is to be conducted, 2 McQuillin, Municipal Corporations (3d ed.), sec. 10:26, p. 806, and this power to regulate is permissible under the police power and is ordinarily confined to such reasonable restraints upon the trade or business made the subject thereof as may be demanded by the public interest. N.J. Good Humor, Inc. v. Board of Com'rs of Borough of Bradley Beach, 124 N.J.L. 162, 170, 171 (E. & A. 1939).
As stated, the Fourteenth Amendment applies to municipal ordinances as well as state statutes. See Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949). However, R.S. 33:1-40 and N.J.S.A. 40:162A-2, were enacted before the 1947 Constitution was adopted with its provision for liberal construction of laws in favor of municipalities. Before its adoption, such laws were strictly construed. Before 1947 our courts held that reasonable doubt concerning the existence of the power of a municipality was resolved against the municipality. Meday v. Borough of Rutherford, 65 N.J.L. 645 (E. & A. 1900); Federal Shipbuilding & Dry Dock Co. v. City of Bayonne, 102 N.J. Eq. 475 (Ch. 1928), affirmed 104 N.J. Eq. 196 (E. & A. 1928). The courts also stated the rule that municipalities must be confined within the limits which a strict construction of statutory grants of powers to them will assign to them. Appeals of Jersey City, 23 N.J. Misc. 311 (Tax Dept. 1945). However, municipal ordinances carry a presumption of validity and when the power of a municipal corporation to accomplish a result is questioned, the municipality is favored under the Constitution of 1947, since municipalities not only have all powers expressly delegated to them, but also those powers which can be fairly implied by reference to the language expressly delegating powers.
Thus, where there are two possible interpretations of a statute or ordinance, the one which will uphold the law is to be adopted in preference to the one under which the law *93 will be unconstitutional. Adams Newark Theatre Co. v. City of Newark, 22 N.J. 472 (1956).
Therefore, it is the opinion of this court that section 7 of the ordinance does not violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and is a valid exercise of the police power.
III
Plaintiffs contend that since this court had on December 8, 1966 declared unconstitutional that provision of the local ordinance which excluded nonresident applicants for juke box licenses, the city was able to circumvent this decision by enacting section 7, which by limiting the number of licenses did in effect continue in operation the local merchants who had secured their licenses because they were residents of Elizabeth.
With reference to this question, the general rule is that an ordinance operates only prospectively as to licenses or permits when it contains no provision of exception or reservation against its application to existing licenses or permits. Accordingly, an ordinance passed after the granting of a license or permit does not affect it except when the ordinance does so by express provision or necessary implication. Generally, however, an ordinance which validly prohibits a certain business, activity or building, the prohibition beng within the police power of the city, can by its terms be made to operate retroactively with respect to outstanding licenses or permits where vested rights are not involved. However, an ordinance cannot operate retroactively to divest property rights that have accrued by virtue of substantial work done, expenditures made, or obligations incurred in reliance on a license or permit.
In the present case there is no provision of exception or reservation as to existing licenses. In fact, under the new ordinance these licenses are saved. Section 12 provides that all licenses issued under the prior licensing ordinance shall *94 continue in force and effect until their termination date, after which application for renewal licenses shall be made. Furthermore, it was conceded at the second oral argument of this matter that the holders of these licenses had acquired certain property rights which could not be divested.
An ordinance is presumed to be constitutional and valid until declared otherwise by the court. Hasbrouck Heights Hospital Ass'n v. Borough of Hasbrouck Heights, 15 N.J. 447 (1952); Kozesnik v. Montgomery Tp., 24 N.J. 154, 167 (1957); Moyant v. Borough of Paramus, 30 N.J. 528, 574 (1959); Local Board of Health, Berkeley Tp. v. Johnson, 73 N.J. Super. 384, 391, 392 (App. Div. 1962). In fact, there must be compelling evidence to overcome the presumption of validity that attaches to a municipal ordinance. City of Clifton v. Weber, 84 N.J. Super. 333, 339 (App. Div. 1964), affirmed 44 N.J. 266 (1965).
Under the circumstances, should licenses issued under an ordinance that is presumed to be valid, and while the presumption of validity exists, be revoked because the ordinance was declared unconstitutional at a later date?
This question has been answered adequately in Lang v. City of Bayonne, 74 N.J.L. 455 (E. & A 1906):
"I am unable to accept as sound the doctrine upon which it is rested, namely, that an unconstitutional law is void ab initio and affords no protection for acts done under its sanction. That it works injustice in its application to the citizen is apparent. The Flaucher case [Flaucher v. Camden, 56 N.J.L. 244] is a pregnant example of the truth of this assertion. The legislature had enacted a general law, making the unlicensed sales of intoxicating liquor a criminal offense, but legalizing such sales when made by a person holding a license from the proper authority. It then, by a subsequent statute, created the county board of license commissioners the proper authority to grant such licenses in the county of Camden. Flaucher applied to, and received from, this board a license to sell liquors at his saloon in the city of Camden. At that time the law creating the county board stood upon the statute book, apparently as valid, as much entitled to be respected and obeyed as the enactment which prohibited the sale of liquor without a license. And yet, notwithstanding that he scrupulously observed the law, as declared by the legislature, he was made a criminal by judicial decision, a decision *95 which in its operation and effect was as much ex post facto as any statute which makes criminal an antecedent act which violated no law at the time when it was done.
The vice of the doctrine of Norton v. Shelby County [118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178] as it seems to me, is that it fails to recognize the right of the citizen, which is to accept the law as it is written, and not to be required to determine its validity. The latter is no more the function of the citizen than is the making of the law. Each of these functions has been delegated by the constitution, the one to the judicial and the other to the legislative branch of the government. And it is to be observed that the judicial function of determining the validity of statutes is confined within a very narrow scope. Courts are not vested with the general supervision of legislation. They have received no authority from the people to inspect each statute, as it comes from the hands of the legislature, and declare whether or not it infringes constitutional limitations. The function of the judicial department with respect to legislation deemed unconstitutional is not exercised in rem, but always in personam. Allison v. Corker, 38 Vroom 596 [67 N.J.L. 601].
To require the citizen to determine for himself, at his peril, to what extent, if at all, the legislature has overstepped the boundaries defined by the constitution in passing this mass of statutes would be to place upon him an intolerable burden, one which it would be absolutely impossible for him to bear a duty infinitely beyond his ability to perform. In my opinion the provisions of a solemn act of the legislature, so long as it has not received judicial condemnation, are as binding upon the citizen as is the judgment of a court rendered against him so long as it remains unreversed." (at pp. 459-460)
Furthermore, while it has often been stated in general terms that an unconstitutional statute confers no rights, creates no liability and affords no protection, there are many well recognized exceptions to this general rule. An unconstitutional law should not be applied to work a hardship or impose a liability on one who has acted in good faith and relied on the validity of a statute before the courts have declared it invalid. Allen v. Holbrook, 103 Utah 319, 135 P.2d 242 (Sup. Ct. 1943); State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328 (Sup. Ct. 1953).
Courts have also held that equitable rights may be acquired though the statute is thereafter declared unconstitutional. Flournoy v. First National Bank of Shreveport, 197 La. 1067, 3 So.2d 244 (Sup. Ct. 1941); Chicot County *96 Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Missouri Utilities Co. v. City of California, 8 F. Supp. 454 (D. Ct. 1930), appeal dismissed 79 F.2d 1003 (8 Cir. 1935); Miller v. Dunn, 72 Cal. 462, 14 P. 27 (Sup. Ct. 1887); Wichita County v. Robinson, 155 Tex. 1, 276 S.W.2d 509 (Sup. Ct. 1954).
Thus, the effect of the new ordinance is to "save" the licenses now outstanding until their termination dates, but it does not require that new applicants or renewal applicants in the future be residents of Elizabeth. However, after the termination dates of all licenses now in effect, the total amount of new licenses and renewal licenses shall not exceed in number the limitations set out in section 7 of ordinance No. 260.
IV
Plaintiffs contend that the ordinance in question is void for the further reason that it is for the purpose of raising revenue and that the fees sought to be exacted are such as reveal their confiscatory nature. This court cannot agree that the ordinance is invalid merely because one of its functions is to raise revenue.
N.J.S.A. 40:52-2 states that:
"The governing body may fix the fees for all such licenses, which may be imposed for revenue, and may prohibit all unlicensed persons and places and vehicles, businesses and occupations from acting, being used, conducted or carried on; impose penalties for violation of ordinances providing for licenses, and revoke any license for sufficient cause and after notice and hearing."
In Salomon v. Jersey City, 12 N.J. 379 (1953), the court stated:
"In the light of all of the foregoing, we consider that the primary and overriding purpose of the Legislature in enacting R.S. 40:52-1 and R.S. 40:52-2 was to authorize municipalities to license and regulate, as police measures for the public health, safety, morals or welfare, the local businesses described therein, and only incidentally *97 to impose on the businesses thus licensed and regulated license fees for revenue which may, at least within reasonable limits, exceed the regulatory costs."
The following cases are illustrative of the liberal constructions rendered by the courts, whereby it has been held that municipalities have, under their general power to regulate, the power to levy license fees in part for revenue.
In Tayloe v. City of Wahpeton, 62 N.W.2d 31 (N.D. Sup. Ct. 1953), plaintiff sought to enjoin the city from enforcing an ordinance purporting to regulate and control the collection of garbage within the city. The District Court sustained a demurrer to the complaint and the Supreme Court, in affirming the decision, stated that in determining whether such an ordinance is a welfare, rather than a revenue measure, the test is "whether it has some relation to the public welfare, and whether such is in fact the end sought to be attained." The Court further stated:
"Ordinance providing for the collection and disposal of garbage was a welfare measure for the protection of public health, and not a measure for raising revenue, and fact that * * * city derived some revenue from the measure, did not change status of ordinance to that of a revenue measure." (Emphasis added)
In Jacobs v. Mayor, etc., of Baltimore, 172 Md. 350, 191 A. 421 (Ct. App. 1937), the sale and delivery of coal was regulated by license. The ordinance was held not to have been a revenue measure, but rather a regulatory measure. It is pertinent to note that the court said that the grant of power to the municipality is broad and comprehensive, and that there can be no question it possesses the corporate capacity to provide by ordinance for licensing and regulation of all kinds of business. The authority to impose a license fee may be employed as a regulatory measure or to produce revenue.
9 McQuillin, Municipal Corporations (3d ed.) sec. 26.30, p. 70, states that the view has been taken that authority to impose a license fee is authority to employ such a fee *98 either as a regulatory measure or to produce revenue. Nor does the fact that a license ordinance incidentally raises revenue affect its validity.
Gilbert v. Town of Irvington, supra, was an action contesting the validity of an ordinance establishing a license fee for coin-operated milk vending machines. The court held the ordinance void, but laid down a principle which should well be followed here. The court stated:
"* * * the license fee required by the duly enacted ordinance of the Town of Irvington is entitled to a presumption of reasonableness and the burden of proving otherwise rests with the plaintiffs." (at p. 435)
That being so, this court cannot agree with plaintiffs that Elizabeth is without the power to have enacted the ordinance in question.
Section 4 of ordinance No. 260 provides as follows:
"Before a license is issued for any of the coin operated devices covered by this ordinance, the applicant for such license shall first apply for and obtain an operator's license, the fee for which shall be (a) in the case of music machines, the sum of Two Hundred ($200.00) Dollars per year for an operator licensing and operating more than one (1) music machine, and a fee of One Hundred ($100.00) Dollars for an operator licensing and operating only one (1) music machine, and (b) in the case of all other types of amusement and entertainment machines or devices, the sum of Two Thousand ($2,000.00) Dollars per year."
There is little question in this court's mind that the fees sought to be exacted are reasonable and commensurate with the power of the city to regulate the business of juke boxes and to acquire revenue therefrom.
Olan Mills Inc. of Ohio v. Board of Commissioners, of City of Trenton, 40 N.J. Super. 168 (Law Div. 1956), involved an attack by plaintiff upon the validity of an ordinance imposing a license fee on itinerant photographers. The court held that it was unreasonable to subject plaintiff to a greater *99 license fee simply because it sent its negatives to an out-of-State location for developing. With regard to another contention of plaintiff, however, the court stated:
"Inasmuch as the license fee of $300 is imposed not only for purposes of regulation but also for revenue as stated in Ordinance 884, and as permitted by statute (R.S. 40:52-2), I cannot say that the fee is so excessive as to justify the conclusion that it is unreasonable, prohibitory or confiscatory. * * *
Furthermore, there is a presumption that the fee is reasonable in amount and the burden of showing to the contrary rests upon him who challenges it. I find that plaintiff has failed to carry that burden." (Emphasis added).
This court has not been shown that the license fees set out in the Elizabeth ordinance are unreasonable, confiscatory or exorbitant. In view of the authorities cited supra, this court is of the opinion that said fees are reasonable ones and are reasonably justified by the purposes for which the ordinance was enacted.
V
Plaintiff Dierickx Music, Inc. contends that the reversal of the conviction in the case of State v. Dierickx Vending Co. in the Union County Court (Docket No. 930), has the same effect as a mandamus to the extent that the city was required to issue licenses forthwith. That case resulted in the reversal of two convictions obtained in Elizabeth Municipal Court for violation of section 2, paragraph 1 of an ordinance entitled: "To Provide for the Licensing and Regulation of Coin Operated Music Machines." In a letter opinion dated December 8, 1966 this court held the residency requirement of the ordinance to be invalid and reversed because the evidence disclosed that the residency clause was the basis for the denial of the license application. The judgment reversing the convictions was entered by the court on January 6, 1967. Prior to the entry of that judgment ordinance No. 260 was introduced and passed on first reading on December 27, 1966.
*100 Mandamus is defined in Bouvier's Law Dictionary as an "extraordinary remedy in cases where the usual and ordinary modes or proceedings are powerless to afford remedies to the parties aggrieved, and when, without its aid, there would be a failure of justice." The question here is: What effect did the judgment of January 6, 1967 have?
Writs of mandamus and all other prerogative writs have been superseded by New Jersey Constitution (1947), Art. VI, sec. V, par. 4, which provides that "in lieu thereof, review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court as of right, except in criminal causes where such review shall be discretionary." In Nolan v. Fitzpatrick, 9 N.J. 477 (1952), it was held that the Supreme Court's primary objective, in exercising the jurisdiction so conferred by providing, through rules of court, for proceedings in lieu of prerogative writs, was to safeguard individual rights against public officials and governmental bodies while at the same time avoiding defects of procedure that had led to criticism.
Thus, a procedure does exist for reviewing the action of a license inspector in refusing to grant a license or permit to one entitled to it. The jurisdiction for a proceeding in lieu of prerogative writs is in the Superior Court. A reversal of a conviction on an appeal from a municipal court cannot operate as a mandamus to compel the issuance of a liecnse or permit forthwith.
The ordinance in effect on the date of the hearing of this proceeding in lieu of prerogative writs governs the proceeding except with respect to rights that have vested under the ordinance existing prior to the hearing. See Socony-Vacuum Oil Company, Inc. v. Mt. Holly Tp., 135 N.J.L. 112 (Sup. Ct. 1947). That case raises the question of whether plaintiff was entitled to a writ of mandamus compelling the township to issue a building permit for construction of a gasoline service station. A zoning ordinance was passed putting the property in question in a residential zone. Plaintiff based its claim on the assertion that it was *101 the law prevailing at the time it applied for the permit or at the time it obtained the rule to show cause that controlled. There was no zoning in effect at either time. The township contended that the law at the time of determination of the case was controlling. The court said:
"Moreover, in my opinion, there can no longer be any question as of the time when the status of the applicable law controls. It is neither the status of the law prevailing at the time of the application for the permit nor the status of the law prevailing at the time of the application or allowance of the rule to show cause. It is the status of the law prevailing at the time of the decision by the court that is controlling. [Citation omitted]
And just as a change in the law between a nisi prius and an appellate decision requires the appellate court to apply the changed law, so, by like token, a change of law pending an administrative hearing or act must be followed in relation, as here, to a permit for the doing of a future act. Otherwise the administrative body, here the building inspector whose acts are subject to appeal to or review by this court, would issue a permit contrary to the existing legislation. [Citation omitted]
While the power to issue a writ of mandamus is, as frequently stated by our courts, a discretionary power, the exercise of that power is governed and controlled by well established principles. The discretionary power must not be arbitrarily or capriciously exercised. It must be judicially exercised. * * *" (at p. 117)
In the present action by Dierickx Music, Inc., there is no dispute about the fact that ordinance No. 260 is in effect on the date of this hearing. The ordinance is therefore controlling except with respect to any rights that may have vested in plaintiff under the law existing prior to the hearing. There is no dispute about the fact that no license has ever been issued to plaintiff under the ordinance or the prior ordinance. Plaintiff, therefore, does not have the vested rights of the holder of a license duly issued under an earlier ordinance. State v. Dierickx Vending Company was an appeal from convictions in Elizabeth Municipal Court. No proceeding prior to this one was ever instituted by plaintiff to compel the license inspector of Elizabeth to issue a license to plaintiff.
*102 Plaintiff seeks to compel the issuance of a license on the basis of the fact that it made a prior application under an ordinance which did not limit the number of music machines permitted in Elizabeth. Its theory, apparently, is that since it made application under the prior ordinance it is entitled as of right to the issuance of a permit now, although the existing ordinance does not permit such issuance since the maximum number of licenses issued or renewable has already been exceeded.
In Rohrs v. Zabriskie, 102 N.J.L. 473 (Sup. Ct. 1926), plaintiff applied to defendant building inspector for a permit to erect a five-story apartment. The building inspector refused to issue the permit on the grounds that the zone prohibited such structure. The board of adjustment refused to modify the action of the building inspector. Thereafter the governing body of the municipality passed an amendment to the building ordinance and prohibited apartments of more than three stories anywhere in the municipality unless the apartment was of fireproof construction. Plaintiff brought an action to compel the issuance of the building permit on the basis that the application and review by the board of adjustment was made prior to the amendment to the building ordinance. The court held that the amendment was a valid exercise of police power, and it further held that the court would not issue a mandamus directing the municipality to grant a permit for erection of a building which was not permitted under the ordinance in effect on the date of the hearing.
In the present case the Elizabeth City Council his passed, and the mayor has signed, an ordinance which limits the number of licenses that can be issued for music machines. This court is bound by the terms of that ordinance.
Municipal ordinances are cloaked with a strong presumption of constitutionality. Roe v. Kervick, 42 N.J. 191, 229 (1964). One of the basic functions of government is to safeguard the health, safety and welfare of the people. Jones v. Haridor Realty Corp., 37 N.J. 384 (1962). The *103 wisdom of the Legislature as to the means it selects is not subject to review or interference by the courts except in the protection of fundamental constitutional rights. Gundaker Central Motors v. Gassert, 23 N.J. 71, 81 (1956). The judiciary does not pass upon the wisdom of a municipal ordinance nor does it nullify decisions of a governing body on the subject of local welfare merely because a debatable issue is presented. Fred v. Mayor, etc., of Old Tappan, supra.
In Marangi Bros. v. Board of Commissioners of Village of Ridgewood, 33 N.J. Super. 294, 301 (App. Div. 1954), the court said that in considering municipal measures designed to deal with problems of public health, under R.S. 40:48-2, N.J.S.A. 40:52-1(c) and R.S. 40:66-1, regard must be had for the presumptive validity already mentioned, and also for the doctrine that the governing body is entitled to wide latitude in its efforts at regulation; and that the enactment finally issued should not be disturbed unless palpably unreasonable or in conflict with some superior statutory or constitutional limitation. Dover Tp. v. Witt, supra, 7 N.J. Super. 259. And even more specifically here, in applying the various sections of the Home Rule Act, we must be mindful that the Legislature has directed a most liberal construction policy. R.S. 40:42-4 states that
"In construing the provisions of this subtitle, all courts shall construe the same most favorably to municipalities, it being the intention to give all municipalities to which this subtitle applies the fullest and most complete powers possible over the internal affairs of such municipalities for local self-government."
Nor can we lose sight of the mandate in the 1947 Constitution, Art. IV, sec. VII, par. 11, for liberal construction of legislation concerning municipal powers, as stated supra.
For the reasons set out above, the complaints will be dismissed and judgments entered for defendants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620072/ | 955 So. 2d 1206 (2007)
George W. BIERLIN, Appellant,
v.
Richard LUCIBELLA, Appellee.
No. 4D06-1820.
District Court of Appeal of Florida, Fourth District.
May 9, 2007.
*1207 C. Bryce Albu and L. Martin Reeder, Jr. of Reeder & Reeder, P.A., Jupiter, for appellant.
Norman Malinski of the Law Offices of Norman Malinski, P.A., Aventura, for appellee.
PER CURIAM.
George Bierlin appeals the denial of motions for attorney's fees under Florida Statutes section 57.105. We reverse.
Richard Lucibella filed suit against Bierlin for an injunction under Florida Statutes section 784.046, addressing stalking (along with one other count that is not relevant to this appeal). Lucibella alleged that Bierlin directed mail, magazine subscriptions, and other published material to him, addressing it to "Dick H. Lucibella" and "D. Head Lucibella," over a period of six months which ended prior to the filing of the complaint.
Bierlin filed a motion to dismiss Lucibella's complaint for failure to state a cause of action, because the injunction count did not meet the statutory requirements for pleading under section 784.046 (including a sworn petition, the specific contents of the petition, and the form of the petition).
The filing of complaints and motions to dismiss went on until the third amended complaint (and until a fourth amended complaint on the other count), after which the trial court dismissed the injunction count and complaint with prejudice for failure to state a cause of action due to non-compliance with the pleading requirements of section 784.046. During the process of filing complaints and motions to dismiss, Bierlin also filed two motions seeking attorney's fees under section 57.105, and the trial court retained jurisdiction to rule on these motions in the order of dismissal.
Thereafter, Lucibella appealed the order of dismissal in Case No. 4D06-86, arguing that the pleading requirements of section 784.046 apply only when the petitioner is seeking an ex parte injunction. While that appeal was pending, the trial court considered Bierlin's section 57.105 motions, and Lucibella contended that the motions should be denied because he was not seeking an ex parte injunction. The trial court denied Bierlin's section 57.105 motions, concluding that the failure to state a cause of action alone was not a sufficient basis for section 57.105 attorney's fees and that Lucibella's complaints were "not so baseless and completely untenable as to be frivolous." Bierlin appealed the section 57.105 order in this case. This Court then disposed of the order of dismissal appeal by per curiam affirmance, see Lucibella v. Bierlin, 939 So. 2d 111 (Fla. 4th DCA 2006), thereby rejecting Lucibella's ex parte injunction argument, and granted Bierlin's appellate motion for section 57.105 attorney's fees.
Trial court orders on motions for attorney's fees under section 57.105 are reviewed to determine whether the trial court abused its discretion on the issue of whether the complaint included justiciable *1208 issues of fact or law (because an award of attorney's fees becomes mandatory if the complaint included no justiciable issues, see Morton v. Heathcock, 913 So. 2d 662, 668 (Fla. 3d DCA 2005)). See Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d 615 (Fla. 4th DCA 2006).
Section 57.105 provides for an award of attorney's fees when a party or his counsel knew or should have known that a claim was not supported by material facts or then existing law (with an exception for good faith arguments to change existing law). Bierlin contends that an award of section 57.105 attorney's fees was required in this case, because Lucibella repeatedly failed to meet the statutory pleading requirements for an injunction under section 784.046 in four separate complaints. See Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So. 2d 709 (Fla. 4th DCA 2004)(section 57.105 attorney's fees appropriate where party failed to state cause of action by raising identically-flawed claims through the third amended counterclaim). Lucibella responds that the failure to state a cause of action alone is not a sufficient basis for an award of section 57.105 attorney's fees, and that he was asserting a good faith argument for limiting the existing law regarding pleading requirements to ex parte injunctions.
We conclude that the trial court abused its discretion by finding justiciable issues of fact or law where none were present and denying Bierlin's section 57.105 motions. This case involved more than a dismissal for failure to state a cause of action. Rather, it involved a dismissal for failure to state a cause of action after four nearly identical attempts to do so and without presenting a justiciable issue of fact or law. Moreover, no cause of action could ever be stated in the form which Lucibella employed due to its non-compliance with the clear and mandatory statutory requirements of section 784.046. Additionally, Lucibella never asserted below that he was attempting to change the law to limit the statutory requirements to ex parte injunctions. Furthermore, it is telling that this Court granted section 57.105 attorney's fees on appeal of the dismissal order in Case No. 4D06-86. Therefore, we reverse and remand for the entry of an award of section 57.105 attorney's fees against Lucibella.
Reversed and Remanded.
GUNTHER, POLEN and HAZOURI, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620064/ | 955 So. 2d 612 (2007)
Mitchell LADSON, Appellant,
v.
STATE of Florida, Appellee.
No. 2D05-1116.
District Court of Appeal of Florida, Second District.
April 20, 2007.
James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
*613 Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.
EN BANC
PER CURIAM.
Mitchell Ladson appeals his convictions and sentences for forgery, uttering a forged instrument, and grand theft. We affirm without discussion Ladson's convictions. We also affirm the sentences imposed but write to address Ladson's challenge to one of the conditions of his probation. Condition eight of the probation order provides: "You will submit to and pay for random testing as directed by the Officer or Professional staff of the treatment center where you are receiving treatment to determine the presence of alcohol or controlled substances." Ladson's appellate counsel filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) seeking to strike this condition based on the argument that it is a special condition that the trial court failed to orally pronounce. The trial court denied relief stating: "Pursuant to 948.031(k), this request is DENIED as it is a standard condition."
The "submit to" portion of this condition is a standard condition that need not be orally pronounced. See Diaz v. State, 691 So. 2d 589, 590 (Fla. 2d DCA 1997). However, the "pay for" portion is a special condition that must be orally pronounced. See State v. Williams, 712 So. 2d 762, 763 (Fla.1998). Such conditions have previously been stricken when challenged on appeal. See, e.g., Crowley v. State, 813 So. 2d 1065 (Fla. 2d DCA 2002); Miller v. State, 809 So. 2d 101 (Fla. 2d DCA 2002); Torres v. State, 712 So. 2d 1169 (Fla. 2d DCA 1998); Carter v. State, 787 So. 2d 193 (Fla. 1st DCA 2001). However, a defendant is able to raise an objection to such a condition by filing a motion pursuant to rule 3.800(b). Under this rule
"a defendant has the opportunity to interpose a substantive objection to probation conditions contained in the written order even if no contemporaneous objection is made at the sentencing proceedings. Therefore, procedural due process is satisfied without the need to orally pronounce otherwise proper special probation conditions."
Grubb v. State, 922 So. 2d 1002, 1003 (Fla. 5th DCA 2006) (emphasis added) (quoting State v. Joly, 885 So. 2d 921, 923 (Fla. 5th DCA 2004)). Thus, Ladson cannot claim a violation of his due process right to notice and an opportunity to object on appeal because he had the opportunity to assert in a rule 3.800(b) motion any substantive objection to the portion of the condition that requires oral pronouncement. Because Ladson's objection was procedural only and he raised no substantive basis to strike the condition, we affirm.
We recognize that this court continued to strike unpronounced conditions subsequent to the promulgation of rule 3.800(b).[1]See, e.g., Martinez v. State, 841 So. 2d 632 (Fla. 2d DCA 2003); Crowley, 813 So. 2d 1065; Miller, 809 So. 2d 101. However, we are persuaded by Grubb that we granted relief in those cases improvidently and, therefore, recede from Martinez, Miller, Crowley, and any other case in which we struck unpronounced conditions even though the appellant was able to challenge those conditions by the rule 3.800(b) procedure.
FULMER, C.J., and ALTENBERND, WHATLEY, NORTHCUTT, *614 CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, KELLY, CANADY, VILLANTI, WALLACE, and LaROSE, JJ., Concur.
NOTES
[1] See Amendments to Fla. Rules of Criminal Procedure 3.111(e) & 3.800 & Fla. Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So. 2d 1015 (Fla.1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588138/ | 205 P.3d 992 (2009)
STATE of Washington, Respondent,
v.
Osadebe Mordi ANENE, Appellant.
No. 37374-2-II.
Court of Appeals of Washington, Division 2.
April 28, 2009.
Catherine E. Glinski, Attorney at Law, Manchester, WA, for Appellant.
Michael C. Kinnie, Attorney at Law, Vancouver, WA, for Respondent.
PART PUBLISHED OPINION
VAN DEREN, C.J.
¶ 1 While Osadebe Anene lay comatose and incompetent, the trial court denied his counsel's *993 motion for a mistrial. A jury subsequently convicted him of first degree child rape and two counts of first degree child molestation for sexual acts committed against his daughter, CJA.[1] Anene appeals, arguing that the trial court abused its discretion because it (1) failed to conduct a competency evaluation when Anene lapsed into a coma on the third day of trial and (2) admitted propensity evidence. We reverse the convictions and remand for a new trial.
FACTS
¶ 2 CJA was born on October 9, 2000. Her sister, SA, was born on March 2, 1990. On October 24, 2005, Child Protective Services (CPS) removed CJA and SA from Anene's home and placed them in foster care. The State charged Anene with one count of first degree child rape (count 1) and two counts of first degree child molestation (counts 2 and 3). All charges were based on his alleged abuse of CJA.
¶ 3 At trial, both girls testified to numerous acts of child molestation or rape by Anene. In addition, a CPS social worker; a CPS investigator; Vancouver Police Department Investigator Steve Norton; the girls' foster mother; and Dr. John Stirling, a pediatrician formerly employed at the Vancouver Clinic, testified. Dr. Stirling's "subspecialty interest ... is in child maltreatment, in neglect and abuse issues." VI-A Report of Proceedings (RP) at 407. Each testified to the girls' statements implicating Anene as the perpetrator of significant child molestation or rape. Anene's wife and his eldest son also testified. Their testimony related to Anene's alleged acts of domestic violence against his wife, his son, and SA.
¶ 4 On the third day of trial, Anene did not appear at the scheduled start time. The trial court noted the following on the record:
This is the third day of trial.... It's now 9:35 A.M. Yesterday I'd made an intentional direction to the attorneys and to the parties, including the defendant, to be here at five minutes to 9 so that we could start the trial at 9:00. It's a half hour past that time and the defendant has not appeared.
VII-A RP at 517. The trial court explained that Anene's attorney "believed [Anene] would be here and has no knowledge of why he isn't here, and has been unable to reach him by cell phone." VII-A RP at 517. The trial court also said:
I don't know if the defendant's absence is voluntary or involuntary. We do know that he knows of the time and place and that he's made every other court appearance in a timely fashion.
If we proceed under the assumption that his absence is voluntary, then we have the right to conclude the trial.
If, however, it later turns out that we commenced trial without him and his absence was involuntary, then any proceedings hereafter would be subject to a motion for new trial.
VI1-A RP at 518.
¶ 5 The prosecutor asked that the trial continue in Anene's absence "because we have flown people from Texas" but noted that they would proceed
understanding that if [Anene] came forward at a later date with a viable, supportable explanation for his absence, such as car accident or some other reasonable cause, that we would have to restart and retry the case.... But given the fact that he has not called counsel, that he has not appeared for over a half an hour after the Court's direction, that he has been appearing on a regular basis prior to this date, I think it's fair to assume that he's voluntarily absenting himself.
VII-A RP at 518-19.
¶ 6 The trial court recessed until 10:00 am. In chambers, the prosecutor stated:
I had placed a phone call to Rex Gunderson, who accompanied theof the Vancouver police department, with Investigator Steve Norton, who went to [Anene's] registered address. They found his car there.
Theythere's no response at the door. They contacted the manager and discovered *994 that Mr. Anene had attempted suicide this morning and has been transported to Southwest Washington Medical Center.
VII-A RP at 520-21.
¶ 7 The parties then returned to the courtroom and the trial court asked the prosecutor how he wished to proceed. The prosecutor responded:
I don't know the extent of the injuries he inflicted upon himself or the method or manner of injuries that he inflicted upon himself to know how soon he will get out ofor if he will get out of [the] medical facility.
It certainly does appear that he did an intentional act that he knew would cause his voluntary non-appearance at trial.
VII-A RP at 523.
¶ 8 The prosecutor's cellular telephone rang and he apparently spoke to Gunderson, who was at the hospital. Following the call, the prosecutor reported:
That was Sergeant Gunderson ... the information he's received is at 7 A.M. [Anene] called on an overdose of an unknown substance. They found him at his home in his military outfit in bed with his military hat on and a Bible on his chest.
[Anene] was lost, that is, his heart stopped beating, in the ambulance on the way to the hospital. They revived him in the ambulance on the way to the hospital.
And they do not know his status as to his survivability at the hospital.
VII-A RP at 525-26. The trial court said, "All right, well, thank you, that gives us a little more information. I'm not going to make any assumptions that he'll be available for this trial the next day or two." VII-A RP at 526.
¶ 9 The prosecutor again asked to proceed with the trial in Anene's absence, arguing that Anene was voluntarily absent:
[C]learly Mr. Anene took medication intending to overdose and kill himself.
He clearly knew that that would absent himself from the trial. Where we have an indication that the defendant is intentionally absenting himself from the trial, I think it would be fair given the fact that the State has individuals flown from Texas present who are scheduled to fly back out tomorrow, and especially where we do not know his status, his mental status, his health status and what his release status is, to proceed with the trial to finish the testimony and allow the matter to go to jury verdict.
VII-A RP at 526-27.
¶ 10 Anene's attorney responded, "I would prefer to wait till ... Major Anene can be here in attendance so that he can further with his assistance of his defense for hisfor his case." VII-A RP at 527. The trial court responded:
The problem is, we don't know if that will occur soon or ever. We have jeopardy attached; we have a jury here that's heard two-thirds of the case and witnesses available, though the fact that they're from Texas and have flights back and all that, of course, is an inconvenience, but isn't determinative.
The rule clearly provides that a person who intentionally absents himself from the proceedings, and that's the conclusion I'm making from hearing this description of him wearing his hat in bed. Obviously he just didn't lay down and take a nap and accidentally take a few pills, he was laying in bed with his uniform and his hat, fully regaled in his military uniform with a Bible on his chest.
It shows, if those facts are true, and I have no reason to dispute them or disbelieve them, it indicates he intended not to appear and he voluntarily absented himself from the proceedings.
RP (Sept. 26, 2007) at 527-28.
¶ 11 The trial court ultimately ruled that
we've got a jury that has not reached a verdict, we've got witnesses who have yet to testify, we've got scheduling, we've got other considerations than simply waiting for the defendant to show up to take the verdict. My conclusion is we'll proceed with the trial. *995 VII-A RP at 529. The trial proceeded and the trial court determined that it would not mention Anene's absence to the jury.[2]
¶ 12 After the prosecutor rested his case that same afternoon, Norton gave a note to the trial court that read, "Prognosis extremely poor. Intubated and comatose." The court asked, "Three to five days before they'll know anything"? It then recognized that "he's certainly not available to court for at least three to five days." VII-A RP 588-89. Nevertheless, the trial court concluded, "[W]e can proceed to verdict without a defendant"[3] and noted that CrR 3.4(b) "specifically so provides."[4] VII-A RP at 590.
¶ 13 Anene's counsel moved for a mistrial
on the grounds that the defendant was to be the only witness in defense of his case, and therefore based on that fact and that the defendant is currently comatose ... proceeding with this case would be highly prejudicial to the defendant....
.... In addition, based on the fact that the defendant allegedly attempted suicide this morning, his mental capacity to stand trial now comes into issue.
VII-B RP at 600-01.
¶ 14 The prosecutor repeated his argument that Anene had voluntarily absented himself from trial, thus allowing the trial to proceed in his absence, stating:
I believe that the defendant made a voluntary choice to ingest pills that he knew or should have known, intentionally took those pills, knowing or should have knowing [sic] that he was not intending to appear at the trial.
I think his intent was to kill himself, and therefore I believe he voluntarily absen[t]ed himself from the trial.
VII-B RP at 601. The prosecutor also argued that Anene's defense counsel had verified that Anene attempted suicide when he argued Anene's mental incapacity.
¶ 15 The trial court took an offer of proof through Norton who testified that he was the investigating officer on the case and that he arrived at Anene's residence at 9:30 am that morning. "Sergeant Gunderson checked the residence. The door was unlocked in front, both the windows were open. At that time we felt it was necessary to enter the residence, so we called patrol for backup." Norton said that the patrol officer "informed us at that time that they had had an early morning call, approximately 0700 hours, or before daylight, involving a suicide attempt and Mr. Anene had been transported to Southwest Washington Medical Center." VII-B RP at 603. Norton then went to the hospital and talked with Dr. Stump, who told him that
they had to work on Mr. Anene for an hour and a half just to get him stabilized.
... He was comatose at this time. He was intubated, on a respirator, and it would be three to five days before they'd know if he was gonna get better or get worse or pass away.
VII-B RP at 605. Norton did not observe Anene while at the hospital.
¶ 16 Based on this testimony, the trial court ruled:
I find that information, although hearsay, to be highly reliable, and my determination is that a mistrial is not appropriate for the reason that the defendant voluntarily chose not to participate in these proceedings after being here for two days, and the court rule, I think it's CrR 3.4(b), specifically permits the Court once trial has begun to finish a trial for the obvious *996 reason that a person, a defendant, cannot see that things are going poorly at trial and then terminate the proceedings by voluntarily absenting him or herself from the proceedings.
Certainly it's an unfortunate situation, and it's a situation totally self-made by the defendant. No one can blamebe blamed. And if the prejudice that inures to his absence results, it's a choice he made.
VII-B RP at 606-07. The trial court then denied Anene's motion for a mistrial. The trial court called in the jury and the defense rested without presenting any evidence.
¶ 17 During closing arguments, the prosecutor pointed to Anene's absence from trial without telling the jury the reason for his absence:
Now, there's one glaring thing that we can't ignore. And that's where is Mr. Anene? Certainly sitting here you must have noticed that he's gone and he is not here. And in noticing that he's gone and is not here when he has appeared for the first part of the trial, you can consider whether or not his absence is evidence, circumstantial evidence, because we have no direct evidence, but circumstantial evidence of a consciousness of guilt. Where's Mr. Anene?
VII-B RP at 630-31.
¶ 18 The jury returned guilty verdicts on all three counts. The jury also returned a special verdict, finding that Anene "use[d] his position of trust or confidence to facilitate the commission of the offenses" and that he "kn[e]w that the victim of his crimes was particularly vulnerable or incapable of resistance." VII-B RP at 647-48.
¶ 19 Four months later, on January 25, 2008, the trial court entered an order finding Anene competent to stand trial and "competent to participate and understand his sentencing in the above-entitled cause." CP at 113. The order was
based upon the evaluation submitted by C. Kirk Johnson, Ph.D indicating that Dr. Johnson met with Mr. Anene on 12/21/07 and 12/26/07 at Southwest Washington Medical Center where he was a patient and on 1/4/08 at the Clark County Jail. This evaluation was to determine defendant's competency to participate in his sentencing.
CP at 113.
¶ 20 On February 8, 2008, Anene appeared for sentencing. He had been in a coma for several months and had suffered brain damage and partial blindness. The trial court noted that Anene "ha[d] little or no recollection of that trial" but that Anene had had the opportunity to listen to a recording of the trial. VIII RP at 654. Anene's counsel then stated:
Mr. Anene is a shell of the man he was at trial several months ago.... [T]hrough an overdose of medication, he was in a coma for several months. When he came to, he... had a tremendous loss of recall of memory, including this entire trial, and he has suffered ... from blindness.
....
... I don't believe that an exceptional sentence, which is within your discretion, would serve any purpose at this point, Your Honor, due to the amount of suffering he had, and I would ask you to sentence Mr. Anene within the standard range.
VIII RP at 656-57.
¶ 21 Anene explained that he did not remember the proceedings but that he respected the judicial system. He did not admit or deny attempting to commit suicide but he said, "We take a lot of medication prior to going to war.... I think some of those medications were also experimental, and I attribute that to my complete memory collapse." VIII RP at 658.
¶ 22 The trial court ruled that "to impose a sentence that he deserved prior to his brain damage would be inappropriate, I think." VIII RP at 667. It refused to impose an exceptional sentence and, instead, sentenced Anene to 180 months in prison, within the standard range.
¶ 23 Anene appeals.
ANALYSIS
¶ 24 Anene argues that the trial court violated his due process rights when it failed *997 to order a competency evaluation before continuing the trial in his absence. Anene also argues that the trial court denied him a fair trial when it admitted propensity evidence of prior sexual abuse against SA and testimony from SA and Anene's wife and son about alleged acts of domestic violence.
I. Proceeding With Trial During Defendant's Incompetence
¶ 25 Anene argues that the trial court violated his right to due process and Washington law when it failed to order and consider a competency evaluation before it continued his trial in his absence. We address this issue, not in light of whether a competency evaluation was necessary, but because Anene was clearly incompetent while he was unconscious. Rather, we consider whether the trial court denied Anene's due process rights when it ordered that the trial proceed while Anene was in a coma and obviously incompetent to assist counsel or participate in his trial on these serious charges.[5]
¶ 26 Here, the trial court did not abuse its discretion in failing to order a competency evaluation because Anene was comatose, making an evaluation superfluous. But the trial court relied solely on CrR 3.4(b) in ordering the trial to continue in Anene's absence. In this, the trial court erred. The issue is whether, under the circumstances, proceeding with the trial when Anene's return to consciousness was doubtful and not foreseen for at least several days violated RCW 10.77.050 and Anene's due process rights.[6]
B. Due Process Right to be Competent at Trial
¶ 27 "The United States Supreme Court has held that the Fourteenth Amendment's due process clause prohibits the conviction of a person who is not competent to stand trial." In re Pers. Restraint of Fleming, 142 Wash.2d 853, 861, 16 P.3d 610 (2001). Washington law provides even greater protection under RCW 10.77.050, which states, "No incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues." See also Fleming, 142 Wash.2d at 862, 16 P.3d 610. The test for competency to stand trial is "if the defendant has the capacity to understand the nature of the proceedings against him and to assist in his own defense." State v. Hahn, 106 Wash.2d 885, 895, 726 P.2d 25 (1986).
¶ 28 Drope v. Missouri mandates the outcome in this case. 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). Drope attempted suicide on the second day of his trial. When the trial court "directed counsel to proceed," Drope's counsel moved for a mistrial, expressing "the difficulty of proceeding without a client." The trial court denied the motion, stating that "the difficulty was brought about by [Drope]." Drope, 420 U.S. at 166, 95 S. Ct. 896. The trial court did not order a competency evaluation. See Drope, 420 U.S. at 166, 95 S. Ct. 896.
¶ 29 In reversing Drope's conviction, the United States Supreme Court declined to determine whether a suicide attempt alone "create[s] a reasonable doubt of competence to stand trial"[7] but it found significant that *998 the defendant "was absent for a crucial portion of his trial." Drope, 420 U.S. at 180-81, 95 S. Ct. 896. It also found that Drope's absence
bears on the analysis in two ways: first, it was due to an act which suggests a rather substantial degree of mental instability contemporaneous with the trial; second, as a result of [Drope's] absence the trial judge and defense counsel were no longer able to observe him in the context of the trial and to gauge from his demeanor whether he was able to cooperate with his attorney and to understand the nature and object of the proceedings against him.
Drope, 420 U.S. at 181, 95 S. Ct. 896 (citation omitted).
¶ 30 Here, Anene's defense counsel moved for a mistrial when Norton confirmed Anene's comatose condition. Anene was thereafter absent for crucial portions of his trial after the trial court denied the mistrial motion. His absence abrogated his defense since he was the only witness to be called. He also was unable to assist during cross-examination of the State's remaining witnesses.
¶ 31 Norton's testimony established Anene's incompetence. The trial court was aware that Anene was in a coma and, therefore, unable to participate in his trial. It also knew that Anene likely attempted suicide, "an act which suggests a rather substantial degree of mental instability." Drope, 420 U.S. at 181, 95 S. Ct. 896. Furthermore, Anene's trial counsel brought the competence issue to the trial court's attention. See Drope, 420 U.S. at 176-77, 95 S. Ct. 896 (defense counsel's mere mention of the defendant's mental problems was sufficient to bring the issue of competency to trial court's attention).
¶ 32 Anene was clearly unable to assist in his own defense since he was not present and was unconscious in the hospital. There was no need for a competency evaluation because it was clear that Anene was incompetent to stand trial due to his inability to assist in his own defense. See Hahn, 106 Wash.2d at 895, 726 P.2d 25. Therefore, the trial court's decision to proceed with the trial in Anene's absence clearly violated Anene's due process rights. We hold that the trial court erred in proceeding with the trial when faced with Anene's obvious incompetence. We reverse his conviction and remand for a new trial.
¶ 33 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040.
We concur: ARMSTRONG and HUNT, JJ.
NOTES
[1] We refer to the victims by their initials to protect their rights as minors under RCW 7.69A.030(4).
[2] After the jury returned its verdict, the trial court told the jury, "Major Anene[] tried to take his life today." The trial court commented that "once those girls testified, their testimony was very powerful, it was very compelling and certainly credible, and he saw the handwriting on the wall.... So he took some pills this morning and he's in the hospital now." VII-B RP at 648-49.
[3] The trial court cited State v. Rice, 110 Wash.2d 577, 757 P.2d 889 (1988), a capital case in which the Washington Supreme Court held that where a defendant attempted suicide "pending receipt of the verdict," it was harmless error to proceed to the verdict in the defendant's absence. VII-A RP at 589.
[4] The rule states, in part, "The defendant's voluntary absence after the trial has commenced in his or her presence shall not prevent continuing the trial to and including the return of the verdict." CrR 3.4(b).
[5] The State argues that "[a] defendant is presumed to be competent to stand trial, and the party claiming incompetence bears the burden of proving that the defendant is incompetent by a preponderance of evidence." Br. of Resp't at 12. It further argues that the trial court should have a "wide measure of discretion" because it was able to observe the defendant and because Anene's defense counsel failed to raise the issue of competency throughout the initial discussion of Anene's absence from trial. Br. of Resp't at 13. It maintains that there were no indications that Anene was incompetent other than the suicide attempt. The State also notes that Anene denies that he attempted suicide in his statement of additional grounds for review. RAP 10.10. The State's arguments ignore the fact that it was readily apparent to the trial court that Anene was comatose, intubated, and that his survival was in question when it ruled that the trial could proceed in his absence.
[6] In fact, Anene was apparently unconscious for three and a half months.
[7] In Drope, there were additional factors indicating the need for a competency evaluation. First, Drope's trial counsel expressed concern about Drope's mental stability before trial. Second, Drope's wife expressed concern about his behavior, and, third, Drope's wife reported that Drope attempted to choke her to death before trial. Drope, 420 U.S. at 165-66, 95 S. Ct. 896. But unlike Anene, there was no indication that Drope was comatose during trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619646/ | 152 So. 2d 272 (1963)
STATE of Louisiana through the DEPARTMENT OF HIGHWAYS
v.
Edward D. RAPIER, Trustee for Lagonda Trust.
No. 5805.
Court of Appeal of Louisiana, First Circuit.
March 29, 1963.
Rehearing Denied May 3, 1963.
Certiorari Granted June 14, 1963.
*273 D. Ross Banister, Glenn S. Darsey, Brunswig Sholars and Ben C. Norgress, by Ben C. Norgress, Baton Rouge, for appellant.
Aycock, Horne, Caldwell & Coleman, by Jack C. Caldwell, Franklin, for appellee.
Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.
LANDRY, Judge.
Plaintiff-appellant, The State of Louisiana, Through the Department of Highways, predicates its appeal herein on the alleged excessiveness of the trial court's award of compensation to defendant-appellee, Edward D. Rapier, Trustee for Lagonda Trust, for 48.468 acres of land belonging to defendant, situated in St. Mary Parish and expropriated by plaintiff-appellant for highway purposes.
Pursuant to constitutional and statutory authority, appellant deposited in the registry of the trial court the sum of $11,000.00 as compensation for defendant's property expropriated for construction of a controlled access, divided highway constituting a relocation of that portion of U. S. Highway 90 between the City of Berwick and the Wax Lake Outlet Bridge, St. Mary Parish. The lower court rendered judgment in favor of defendant landowner in the sum of $79,099.80 less the deposited sum of $11,000.00 or the amount of $68,099.80. The sole issue presented by this appeal is the alleged gross excessiveness of the trial court's award of compensation for the property taken. No question of severance damages has been presented by appellee.
The property in question is situated approximately five miles west of the twin cities of Morgan City and Berwick which lie on the east and west sides, respectively, of Berwick Bay, and approximately one mile east of the Town of Patterson, St. Mary Parish, on a comparatively narrow strip of twisting high land varying in width from one to four miles and known as the *274 Teche Ridge. The record reveals that Teche Ridge lies between the gulf marshes on the south and Six Mile Lake, Flat Lake, Lake Palourde and certain inaccessible swamps to the north. It is undisputed that lands situated on Teche Ridge have become valuable in recent years due to the scarcity of high lands in the vicinity of Morgan City and Berwick. The record reveals that for some years preceding the taking of defendant's property, high lands in the area have been very much in demand and eagerly sought after for use for industrial as well as residential subdivision purposes. In this regard it is conceded that the Morgan City-Berwick area has become highly industrialized because of revived and increased interest in certain industries such as off shore oil drilling, maritime pursuits and commercial fishing. It further appears that because of the industrial and population influx high land has been at a premium and it has become necessary to drain and reclaim swamps and marshes to fulfill the growing industrial and residential needs of the area.
The parcel of land expropriated by appellant consists of a strip 300 feet in width and several thousand feet in length running in an easterly-westerly direction and comprising a portion of a tract containing 610 acres fronting on old U. S. Highway 90. The entire 610 acre tract owned by defendant is known as Bayou Vista. More than one half of Bayou Vista, namely, the northern portion thereof, was developed by defendant into Bayou Vista Subdivision, a residential subdivision, prior to institution of the present suit. The strip expropriated by plaintiff is situated on the southern portion of the undeveloped area to the south of Bayou Vista Subdivision and is bounded on the south by the Southern Pacific Railroad right-of-way except on the east end where the expropriated right-of-way turns northerly. It is conceded that the acreage taken is comprised of two areas of slightly different character which were considered separately for purposes of valuation by the expert witnesses who appeared on behalf of the litigants. The western 9.642 acres of the expropriated strip (referred to by the appraisers and hereinafter sometimes designated by the court as "the 10 acre tract") was cleared land in cultivation in that defendant was utilizing same for the growing of sugar cane. The remaining 38.826 acres (hereinafter sometimes referred to as the "38 acre tract") was wooded. Subject property is shown to be located a distance ranging from 366 feet to approximately 2000 feet south of that portion of Bayou Vista actually subdivided and developed by defendant prior to plaintiff's filing the present action.
The record reveals that several years prior to commencement of this expropriation proceeding, defendant commenced development of Bayou Vista as a residential subdivision. Commencing at the northern portion of the 610 acre tract fronting on old U. S. Highway 90, defendant began clearing the land and subdividing portions thereof into residential building plots. Notwithstanding the relatively high elevation of defendant's land situated on Teche Ridge, it was necessary to install drainage facilities to convert the land into use for residential subdivision purposes. In this regard, the evidence is uncontradicted to the effect that drainage is a problem in this entire area due to proximity to the gulf and the relatively low and flat character of land in the general vicinity. To render Bayou Vista suitable for residential subdivision purposes, defendant constructed an elaborate system of canals and levees surrounding the entire 610 acre tract to both drain Bayou Vista from waters within as well as prevent the flow of water onto defendant's said land from adjoining properties. In addition to the system of canals and levees (which involved an expenditure of several thousand dollars) defendant constructed a pumping station adjacent to the railroad which bounds Bayou Vista on the south. The record shows that the aforesaid pumping station, consisting of three pumps having a discharge capacity of 30,000 gallons per minute each, was installed at a cost to defendant of more than $68,000.00 and was *275 considered more than adequate to drain the entire 610 acres. It is likewise undisputed that defendant was in the process of selling the entire 610 acre tract by continuously subdividing additional portions into residential homesites by clearing the land, constructing streets and installing utilities.
The principal issue presented upon this appeal is whether the learned trial judge erred in considering the best and highest use of the ten acre tract to be industrial purposes and the best and highest use of the 38 acre tract to be residential subdivision development and fixing its value on that basis. Appellant maintains that the best and highest use of the 10 acre tract is industrial purposes and that the remaining 38 acre tract is in effect swamp lands unsuitable for residential use. On the contrary, appellee contends the best and highest use of its property was as found by the trial court.
It is the settled law of this state that the compensation to be awarded in an expropriation proceeding is the market value of the property taken, market value being that price agreed upon at a voluntary sale between a willing and informed buyer and a willing and informed seller under usual, ordinary and normal circumstances. State of Louisiana Through Department of Highways v. Central Realty Investment Company, 238 La. 965, 117 So. 2d 261.
Likewise, it is established law that the true value of a landowner's property expropriated for public purposes is its market value as of the date of the expropriation proceedings in the condition in which it then stood and existed. State v. Landry, 219 La. 721, 53 So. 2d 908.
Market value as the term is used in expropriation proceedings means the value of the land taken considered in the light of its best and highest use. Best and highest use means the most favorable use to which property may reasonably be put in the not too distant future. Potential residential subdivision or industrial use, to serve as the basis of establishing market value in an expropriation proceeding must be shown to be reasonably prospective, as distinguished from remotely prospective to remove such potential use or classification from the realm of guesswork, speculation and conjecture. If such potential future use is shown within the reasonably near future, the owner is entitled to compensation on the basis of such use notwithstanding the property is not being utilized for such use at the time of taking. Central Louisiana Electric Co. v. Harang, La.App., 131 So. 2d 398; Plaquemines Parish School Board v. Miller, 222 La. 584, 63 So. 2d 6.
In expropriation cases the landowner bears the burden of proving his claim to a legal certainty and by a preponderance of evidence. State, Through Department of Highways v. Levy, 242 La. 259, 136 So. 2d 35.
With the foregoing applicable principles of law in mind, we shall proceed to an analysis of the evidence adduced in support of the contentions of the respective parties regarding the market value of defendant's lands.
Three witnesses testified on behalf of appellant, namely: J. Louis Blouin, Arthur Fleming and State Senator Lee Firmin. Mr. Blouin appraised the 10 acre tract at $1,000.00 per acre and the 38 acre tract at $35.00 per acre. Mr. Fleming valued the 10 acre parcel at $750.00 per acre and the remaining 38 acres at $75.00 per acre. Senator Firmin estimated the worth of the 10 acre tract at $600.00 per acre and the 38 acre tract at $35.00 per acre.
Defendant produced five appraisers, namely: Ned Russo, John Edwin Kyle, Jr., Edward Rapier, Stanley M. Lemarie and Michael Hebert. Mr. Russo and Mr. Kyle appraised the entire tract at $1,250.00 and $1,800.00 per acre, respectively. Mr. Rapier valued the 10 acre tract at $3,000.00 per acre and the 38 acre plot at $2,000.00 per acre. Mr. Lemarie valued the 10 acres of industrial *276 land at $2,500.00 an acre and the 38 acre residential tract at $1,650.00 per acre. Mr. Hebert appraised the 10 acre plot at $3,000.00 per acre and the remaining 38 acres at $1,633.00 an acre.
In reaching the conclusion that the best and highest use of the 10 acre tract was industrial purposes while that of the remaining 38 acres was residential subdivision development, the learned trial judge rejected in toto the testimony of defendant's appraisers, Russo and Kyle, because of their failure to consider any difference between the 10 acre tract and the 38 acre tract, and their classification of the entire property as best suited for potential residential development.
The trial court also disregarded the appraisal of defendant's expert, Edward Rapier, because Mr. Rapier's estimates were considered excessive. In this regard the trial court's written reasons for judgment contain the following: "The court concedes Mr. Rapier is thoroughly qualified as an expert appraiser, but believes his figures are too high." In addition, our learned brother below stated:
"As I said in the other case between these same parties, the Court considers Mr. Stanley M. Lemaire the best qualified and most experienced of all the appraisers who testified. Mr. Lemaire used good comparables (best approach), personally inspected the property and gave clear and convincing testimony that his valuation of the two tracts amounted to $88,000.00. But, as defendant alleged in his supplemental answer that the market value of the property was $87,300.00, the Court reduces Lemaire's appraisal to said sum of $87,300.00.
"The Court also considers Mr. Michel Hebert to be well qualified for appraising this particular property. His valuation, using comparables, amount to $70,899.61.
"`The testimony of each expert should be given effect if that testimony is well reasoned and sincere.' State [Through Department of Highways] v. Boyer, 1961, [La.]App., 130 So. 2d 738, 744."
Mr. Blouin, testifying on behalf of appellant, stated he first saw subject property in September, 1958, and again on May 16, 1961, the day before trial of this matter. His inspection, conducted from the railroad right of way which bounds the expropriated property on the south, revealed the land to be inundated from which he concluded the property to be swampland. He noted that the 38 acre tract was covered with trees consisting of cypress, willow, dogwood and some oaks with considerable undergrowth of palmetto. Blouin considered the 38 acre tract to have no economic use. In appraising the 38 acre tract he was unable to find comparable sales of swamp land in which minerals were reserved to the owner (it being conceded appellant permitted appellee herein to reserve all mineral rights to subject property), therefore, Blouin compared prices paid for certain utility rights-of-way for properties situated east of Houma, Terrebonne Parish, on similar property as well as some canal rights-of-way. None of the so-called comparables relied upon by Blouin were introduced in evidence or identified with any degree of certainty. On the foregoing basis, Mr. Blouin considered the value of the 38 acre tract to be $35.00 per acre.
Regarding the 10 acre tract, Mr. Blouin considered its best and highest use to be a continuation of the development of the nearby existing Bayou Vista Subdivision. He also considered that its use for residential development exceeded its value for industrial purposes. He distinguished the 10 acre tract from property immediately to the west thereof, which latter property he considered industrial, because the adjacent property abutted land previously sold by defendant to Cameron Iron Works and devoted by that concern to light industrial *277 use whereas the 10 acre tract in question merely touches the property of Cameron Iron Works on a corner. In addition, Blouin considered that the property lying to the west of the 10 acre tract was more accessible to present U. S. Highway 90 because it could be reached without passing through a developed subdivision whereas the 10 acres in question could obtain access to the existing highway only by passing through the developed portion of Bayou Vista Subdivision to the north. In computing the value of the 10 acre tract, Blouin considered its value as developed property would be $5,000.00 per acre. Deducting therefrom an estimated development cost of $2250.00 per acre and a percentage for reduction in residential value resulting from its proximity to the railroad, he concluded the market value of said 10 acres to be $1,000.00 per acre. Blouin's inspection revealed the presence of canals, levees and the pumping station but he was not aware they affected the drainage of subject property.
Mr. Fleming, a real estate appraiser and manager of a savings and loan association, testifying on behalf of appellant, stated that in appraising subject property he considered the following comparables:
(1) A sale of 10.56 acres for approximately $3000 an acre from Lagonda to Cameron Iron Works, adjacent to the subject property, which he distinguished on the basis that the Cameron Iron Works property fronted on old U. S. Highway 90 and had access to it for a considerable distance.
(2) The sale of a residential lot in downtown Patterson on February 1, 1958, for $1000, converted by computation to $3300 per acre.
(3) The sale on July 7, 1955, of 42 acres five miles from Thibodeaux near St. Nicholas College on the Bayou Lafourche road to Raceland for $236 per acre. He considered this property similar to the expropriated property. He noted that since the property was sold it has been subdivided and developed with shell streets.
(4) A sale on February 8, 1957, of 35 acres, two miles from Thibodeaux on the East side of Bayou Lafourche, at a price of $431.42 per acre.
(5) A sale of 67 acres on the right or West bank of Bayou Lafourche for $317.56 per acre, dated May 25, 1953.
(6) A sale of 50.02 acres for $50,000 of property East of Morgan City on Highway 90 backing up to Lake Palourde.
Predicated upon a United States Department of Agriculture Soil Survey map, reflecting a survey made from 1948-1952, a copy of which was introduced herein, Fleming considered subject property to be swamp land. Fleming deduced that the best and highest use of the 10 acre tract was for residential development whereas he deemed the 38 acre parcel suitable for agricultural purposes provided it were cleared and properly drained. In addition, Fleming stated that he knew of no property in St. Mary Parish sold for residential subdivision purposes within the past 10 years for as little as $750.00 per acre, although he was cognizant of one sale for $1,000.00 per acre for such purpose and another for $2,000.00 per acre for subdivision development.
Ned Russo, whose business is that of insurance agent and realtor, appraised the entire property taken at the sum of $1,250.00 predicated upon sales of lots by defendant in the then existing Bayou Vista Subdivision. Although his appraisal was made on the day of the trial, it was founded upon sales by defendant prior to institution of suit by plaintiff on November 17, 1959. Mr. Russo was aware of the drainage facilities installed by defendant and considered the property well drained. In arriving at his estimate of value, he also took into consideration the cost of clearing the wooded area. His testimony likewise reveals that the practice of constructing protection levees, providing drainage canals and installing pumping facilities in order to convert lands for residential subdivision *278 purposes is not at all unusual in the Morgan City-Berwick area.
Testifying on behalf of defendant, Mr. John Edwin Kyle, Jr. stated that he is Vice-President and general manager of Kyle-Taylor Lumber Company, secretary and treasurer of Lawrence Construction Co., and secretary and treasurer of Precision Excavators, both of which latter corporations engage in the business of developing residential subdivisions. He related the history of the development of Golden Farms Subdivision, a residential development near the outskirts of Berwick. It appears that a company organized by Kyle purchased a 40 acre tract of land which he described as "anywhere from damp to a foot and a half of water on it" for a price of $1500.00 per acre. The installation of a pump and other drainage facilities at a cost of $12,000.00 made possible the sale of lots aggregating a gross return in excess of $500,000.00. According to Kyle, Golden Farms Subdivision and Bayou Vista Subdivision are the only two subdivisions constructed in recent years west of the Atchafalaya River and east of Patterson, Louisiana. Kyle stated further that the facilities installed by defendant to drain Bayou Vista were adequate to permit residential development of subject property in its entirety.
Defendant called as its expert witness Mr. Stanley M. Lemarie, senior partner in the real estate firm of Leo Fellman & Company of New Orleans, Louisiana. Mr. Lemarie, who possesses a most impressive record of qualifications and experience in the field of real estate and realty appraisals, testified that, in his opinion, the best and highest use of the 10 acre tract was for light industrial and commercial purposes. His determination in this regard was based upon the proximity of the 10 acre parcel to the property of Cameron Iron Works to the west and also because the said 10 acre tract was separated by a railroad spur from another tract also classed as industrial property. Mr. Lemarie considered the 38 acre tract best suited for residential subdivision development and determined its raw acreage value by comparison with the sales of several subdivision tracts in the general vicinity, including Bayou Vista and also upon consideration of the cost of developing land in the area. He examined subject property and its drainage system and observed the pumps in operation. At the time of his examination of the property he discerned no standing water.
Mr. Michael Hebert, of Franklin, Louisiana, whose business is that of insurance and real estate, appeared on behalf of defendant and appraised the 10 acre tract separately from the remaining 38 acres although in his opinion the best and highest use of the entire property taken was for residential subdivision development. In evaluating the 10 acre parcel, Mr. Hebert computed the developed acreage value to be $3795.00 per acre from which he deducted development costs in the aggregate of $787.00 per acre in which manner he arrived at a net value of $3008.00 per acre. Regarding the 38 acre tract he determined the developed value to be $2970.00 per acre, less development cost in the sum of $1337.00 per acre, leaving a net valuation of $1633.00 per acre. In determining developed acreage values, he considered the market value of lots in the vicinity and adjusted for expected profit and other value influencing factors such as the relative position of the property with regard to the highway and the railroad. Mr. Hebert stated that he inspected the property in April, 1960 and January, 1961, and on both occasions found the land to be dry and well drained.
Mr. Edward Rapier, Trustee for Lagonda Trust, defendant herein, testified that as part of a long range plan conceived in 1955 or early 1956, a pumping station with a capacity to accommodate three pumps was constructed and completed in 1957. As part of the owners' over-all plan for development of Bayou Vista the property was leveed off from adjoining lands on the east to prevent water from flowing from said adjoining properties onto the drained lands of defendant. As a further part of the development plan, an existing canal running *279 along the north side of the railroad was cleaned to facilitate the flow of water therein. Subsequently, lateral drains were dug by hand and existing levees cut to provide outlets to other canals dug by defendant. The purpose of said facilities was to drain the property to render it suitable for residential purposes as a continuation and extention of the existing subdivision. The entire plan is shown to have been conceived and virtually completed before defendant had any knowledge of the proposed highway relocation which gave rise to the instant suit. Mr. Rapier conceded that since lateral drains had not been dug and streets had not yet been laid out in the area adjacent to the railroad it was possible that there might be some water standing on the property particularly in the wooded portion thereof.
Mr. Theodore F. Kramer, Civil Engineer and surveyor, of Franklin, Louisiana, testified that he is head of a consulting engineering firm which planned and supervised the development of defendant's property including the Bayou Vista Subdivision roads and the extensive drainage system hereinbefore explained. He stated that the portion of Bayou Vista Subdivision property between old Highway 90 and the railroad comprised approximately 610 acres, under levee and drained by a system of five canals, the total system being capable of draining an area of 2000 acres or three times the required capacity. All canals incident to the system were constructed at defendant's expense. He confirmed that the pumping station consisted of three 42 inch cascade pumps with discharge capacity of 36 inches each and each being powered by a 128 horsepower engine operating at 1300 rpm. He likewise corroborated the discharge capacity of each pump to be 30,000 gallons per minute. According to Kramer, the pumping facility is capable of draining the water from a six-inch rain per acre falling within a period of 24 hours. The system was additionally designed, intended and capable of draining an additional 200 acres of land belonging to defendant and situated on the south side of the railroad which said 200 acres defendant intends to develop at a future date.
It is the settled jurisprudence of this state that in cases involving expropriation of lands for public purposes, the opinion evidence of expert witnesses regarding the value of the land involved should be given effect when it appears to be well grounded from the standpoints of sincerity and good reasoning. Domino v. Domino, 233 La. 1014, 99 So. 2d 328; Housing Authority of New Orleans v. Boudwine, 224 La. 988, 71 So. 2d 541. It is likewise the law of this state that opinions of expert witnesses regarding the value of property expropriated for public use are not acceptable and will not be considered when not well grounded. Town of Slaughter v. Appleby, 235 La. 324, 103 So. 2d 461.
From the foregoing analysis of the testimony of the witnesses, it is apparent that appellant's witnesses, in classifying the 38 acre tract as swamp land, utterly failed to take into consideration the elaborate drainage and levee system installed by defendant to drain and protect subject property from overflow. In this regard Blouin's testimony shows that he observed the pumping station and the canal adjacent to the railroad but did not consider that such facilities were part of a system intended to drain defendant's property. Mr. Fleming's testimony is to the effect that he did not even observe the pumping station. Upon cross examination by counsel for appellee, however, Blouin conceded that if the 38 acre tract were in fact drained that it would have potential subdivision value whereas Fleming conceded the land, if drained and cleared, would be best suited for agricultural pursuits.
By stipulation appellant's third appraiser, Senator Lee C. Firmin, valued the 10 acre tract at $600.00 per acre and the 38 acre tract at $35.00 per acre. Obviously his valuation failed to consider the property to be adequately drained and protected by levees.
*280 In view of appellant's witnesses overlooking the salient fact that subject property lay within an elaborate and expensive protective and drainage system designed, installed and constructed entirely at the expense of its owners with the view of developing subject property for sale as a residential subdivision we believe the trial court properly rejected their testimony. Full inquiry and diligent inspection and examination would have revealed that the property in question had been and was being developed for residential purposes in accordance with carefully laid plans which commenced and were undertaken prior to the present expropriation and were in no way related thereto or affected thereby. We are not here concerned with the mere possibility of converting raw acreage into a residential subdivision at some future, undetermined date so remote, uncertain and removed as to make such use of the property purely speculative and conjectural. The evidence in the case at bar clearly reveals that for several years prior to the present taking, defendant had embarked upon a provisional plan and project designed to convert its property into residential subdivision plots. At the time of the present taking more than one-half of the entire 610 acre tract had been so developed and improved. As herein previously stated, a portion of the property herein taken, lay within 400 feet of other portions of defendant's property already subdivided and converted into residential sites. The development with which we are herein concerned was conceived and the execution thereof commenced prior to the instant taking. The record reflects that the best and highest use of the 10 acre tract is light industrial and that of the 38 acre tract is residential subdivision adaptability. It further appears that such potential use of subject property is so immediately prospective and shown with sufficient certainty as to remove such potential use from the realm of conjecture, speculation or mere possibility. It follows, therefore, that defendant landowner is entitled to compensation predicated upon the best and highest use of its said property as hereinabove determined. Plaquemines Parish School Board v. Miller, 222 La. 584, 63 So. 2d 6.
Disregarding the testimony of defendant's witness, Rapier, (as our learned brother below did), it appears there is little difference in opinion among the remaining experts regarding the value of the property in question. Mr. Kyle, however, predicated his estimation of value on what he would be willing to pay for the propertya totally unacceptable criterion. Mr. Russo did not fully explain the manner in which he arrived at his appraisal. For these reasons our learned brother below disregarded the testimony of these witnesses and in so doing, he was eminently correct. Louisiana Highway Commission v. Grey, 197 La. 942, 2 So. 2d 654; Domino v. Domino, 233 La. 1014, 99 So. 2d 328.
Our careful consideration of the record convinces us the learned trial court has painstakingly and correctly analyzed the evidence adduced herein. Admittedly the compensation awarded defendant herein represents a vast and unprecedented increase in the amount deposited by plaintiff incident to an expropriation proceeding instituted pursuant to the constitutional and statutory provisions which authorize actions of the present nature. The record in the present case, however, establishes that the comparatively negligible valuations placed upon subject property by plaintiff's appraisers resulted from their failure to realize and discover that the property in question lay within an area which had been developed to the point that it was properly and adequately drained and protected from overflow thereby rendering it suitable, adaptable and desirable for residential subdivision development.
In arriving at a valuation of $79,099.80, our esteemed brother below reduced Mr. Lemarie's appraisal from $88,000.00 to the sum of $87,300.00 (the amount prayed for by defendant in answer to plaintiff's petition for expropriation). Using the aforesaid reduced figure he added it to Hebert's *281 appraisal of $70,899.61, divided by two the sum thus produced and accepted the resulting figure as the value of defendant's property. The record in the present case is abundantly clear that in establishing the value of defendant's property, our able brother below did not resort to averaging appraisals merely as a matter of convenience and expediency. On the contrary, it clearly appears that the learned trial court meticulously and carefully considered the testimony of each and every appraiser who testified herein. After determining which testimony he would consider and which he elected to reject, he correctly concluded the testimony of Lemarie and Hebert to be reasonable and well founded and on this basis accepted their appraisals of the property involved. In so doing, he gave due and proper consideration to the testimony of all witnesses and particularly those upon whose testimony he relied in reaching his ultimate conclusion.
For the reasons hereinabove set forth, the judgment of the trial court is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619683/ | 980 S.W.2d 849 (1998)
Jay F. MORITZ, Cheryl L. Van Cleave, Ron Mitchell Levine, Will Cabler, Anita Gonzalez, Jesus Mendoza, Felipe Calzada, Lauro Montalvo, Ronald Bruner, Michael Ludwig, Simon Rubinsky, Rudolfo Casias, Luis Camilli, and Allicia Euresti Holloway, Appellants,
v.
Clifford BUECHE and Mary Bueche, Appellees.
No. 04-98-00350-CV.
Court of Appeals of Texas, San Antonio.
October 7, 1998.
*851 Jerry R. Tucker, Sr., Spring Branch, for Appellant.
Richard J. Karam, Law Offices of Richard J. Karam, San Antonio, for Appellee.
Before HARDBERGER, C.J., and RICKHOFF and STONE, JJ.
OPINION
HARDBERGER, Chief Justice.
NATURE OF THE CASE
Appellants, who are fourteen former students of the now-defunct San Antonio School of Law (the "Students"), appeal an order granting summary judgment in favor of appellee, Clifford Bueche ("Bueche").[1] The motion was brought, in part, under rule 166a(i) of the Texas Rules of Civil Procedure. We hold that the Students pointed out evidence in their response that raised a genuine issue of material fact on the elements of their claims challenged in the summary judgment motion. We reverse the trial court's judgment.
FACTS AND PROCEDURAL HISTORY
In 1993, the Students enrolled in the newly formed San Antonio School of Law, allegedly managed by Ken Bueche and his wife, Joan. Clifford Bueche is Ken Bueche's father. According to their pleadings, the Students were told at enrollment that the school would qualify them to take the Texas Bar Examination and that, within a year, the school would be qualified to award a juris doctor (J.D.) degree. The Students charge that Ken, Joan, and Bueche represented that lawbooks had or would be purchased, that the Bueche family would erect a building to house classrooms, and that professional faculty and a full-time dean would be hired. Initially, the Students raised negligence, gross negligence, estoppel, and breach of contract claims, as well as DTPA and fraud claims. The case was eventually narrowed to the DTPA and fraud causes of action.
In his Second Amended Original Answer, Bueche made a general denial of all claims against him and raised several affirmative defenses: failure of consideration, statute of frauds, and the statute of limitations on punitive damages. Bueche also filed a motion for summary judgment, arguing that the Students failed to establish that Bueche had made any misrepresentations regarding the management or financing of the school. Bueche also argued that the Students had not established their status as consumers under the DTPA. Finally, Bueche asserted that the statute of frauds barred the Students' claims. In support of this motion, Bueche filed an affidavit denying any connection to the school other than a natural interest in his son's business.
The Students filed a joint response. Attached to the response were the affidavits of four of the Students, Jay Moritz, Ronald Bruner, Lauro Montalvo, and Simon Rubinsky. Each affidavit stated that Bueche made representations regarding the financing of the school, the purchasing of books, and/or the management of the school in general.
The trial court granted Bueche's motion for summary judgment, and the Students appeal in one point of error, arguing that genuine issues of material fact remain.
*852 STANDARD OF REVIEW
We must initially resolve a dispute regarding the proper standard of review to be applied in this appeal. Bueche argues that the summary judgment should be reviewed under the standards governing the new no-evidence summary judgment rule. See TEX.R. CIV. P. 166a(i). The Students contend that the relevant portion of Bueche's summary judgment motion was based on the traditional summary judgment rules, and the judgment should be reviewed accordingly. See TEX.R. CIV. P. 166a(a), (b).
The motion for summary judgment is divided into several parts. Parts one and two provide a statement of the facts of the case and a description of the evidence provided in support of the motion. Part two concludes with a reference to the standard to be applied in a traditional summary judgment motion, stating: "All of said Summary Judgment evidence shows that there is no genuine issue as to any material fact and Movants are entitled to Summary Judgment as a mattter of law and that Plaintiffs take nothing by their action."
Part three is entitled "Specific Grounds for Summary Judgment." This part addressed only the claims of common law fraud and DTPA violations. In this part, Bueche argued that the Students "failed to establish the necessary elements" of these claims. With regard to the fraud claim, Bueche asserted that the Students failed to offer any evidence that Bueche made a material misrepresentation. With regard to the DTPA claim, Bueche asserted that the Students failed to establish that they were consumers. Finally, Bueche asserted that any purported promise was not in writing and was unenforceable under the statute of frauds.
Part four of the motion for summary judgment is entitled, "Summary Judgment Pursuant to Rule 166a(i)." In this part, Bueche argued that no evidence supported Moritz's claims of negligence, gross negligence, estoppel, breach of contract, and fraudulent conveyance. This portion of the motion does not deal with the fraud and DTPA claims.
The Students argue that, because of the bifurcated nature of the summary judgment motion, the motion as to the DTPA and fraud claims could not have been granted under 166a(i) and must be reviewed as a traditional summary judgment. The implication of this argument is that the new Rule 166a(i) must be specified as the basis of summary judgment. There is merit to demanding such specificity since the trial court should be informed as to the nature of the movant's burden when deciding a motion for summary judgment. Bueche confused this issue by reciting the traditional summary judgment standard in one section and including a specific section exclusively referring to Rule 166a(i). However, since Bueche argued that the Students failed to establish a specific element of their fraud and DTPA claims, we believe the motion should be construed as a motion based on the absence of evidence to support an essential element of these claims. Since the statute of frauds is an affirmative defense, we review that issue under our traditional summary judgment standard.
Under traditional summary judgment standards, a party moving for summary judgment has the burden of establishing as a matter of law that no genuine issue of material fact exists as to one or more essential element of the plaintiff's cause of action or, if the motion is based on an affirmative defense, that the defense is established as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). If the defendant meets this burden, the plaintiff must then raise a genuine issue of material fact on that element or must produce evidence raising a genuine issue of material fact in avoidance of the affirmative defense. Gonzalez v. Harlingen, 814 S.W.2d 109, 112 (Tex.App.Corpus Christi 1991, writ denied).
On reviewing a summary judgment, an appellate court accepts as true all evidence supporting the non-movant. Nixon, 690 S.W.2d at 549. All inferences are indulged in favor of the non-movant and all doubts are resolved in his favor. Id. Where, as here, the trial court does not state the grounds for granting the motion, and several grounds are provided, the reviewing court must determine if any of the grounds would support the *853 judgment. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).
We apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.San Antonio 1998, pet. filed); Judge David Hittner & Lynne Liberato, No-Evidence Summary Judgments Under the New Rule, in STATE BAR OF TEXAS PROF. DEV. PROGRAM, 20 ADVANCED CIVIL TRIAL COURSE D, D-5 (1997). We look at the evidence in the light most favorable to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Moore, at 269; Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, ___ U.S. ___, 118 S. Ct. 1799, 140 L. Ed. 2d 939 (1998). A noevidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Moore, at 269; TEX.R. CIV. P. 166a(i). Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Havner, 953 S.W.2d at 711.
DISCUSSION
Common Law Fraud
In his motion for summary judgment, Bueche argued that the Students had not established their common law fraud cause of action. The elements of that cause are: (1) a material misrepresentation; (2) that was false; (3) that the speaker made knowing of its falsity or made recklessly, without knowledge of its truth; (4) that the speaker intended the plaintiff to act upon; (5) that the plaintiff relied upon; and (6) that injured the plaintiff. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex.1990), cert. denied, 498 U.S. 1048, 111 S. Ct. 755, 112 L. Ed. 2d 775 (1991). Bueche argued that the Students did not establish that he made misrepresentations or that statements made by his son amounted to material representations by him. Further, according to Bueche, the pleadings did not establish that his son had his authorization to make any statements about his involvement, assuming such misrepresentations were made.
Since Bueche stated the element of the Students' fraud claim as to which there was no evidence in his motion and attached his affidavit in which he asserts that he made no misrepresentations, the trial court was required to grant the motion unless the Students pointed out evidence that raised a genuine issue of material fact on the challenged element. TEX.R. CIV. P. 166a(i). The Students were not required to "marshal [their] proof; [their] response need only point out the evidence that raises a fact issue on the challenged elements." Comment1997, TEX.R. CIV. P. ANN. 7 (Vernon Pamph.1998).
We find that the Students' response pointed out evidence that raised a genuine issue of fact. Attached to the Students' response are the affidavits of four of the Students, asserting that: (1) Bueche had shown them lawbooks he claimed to have purchased for the school; (2) Bueche knew his son was telling others that Bueche was helping to support the school financially; (3) in his son's absence, Bueche was available to answer questions about the school; (4) Bueche never disavowed involvement with the operation of the school; (5) they had seen Bueche, with his son, looking over charts and diagrams regarding the school; (6) some of the Students' tuition checks were delivered to Bueche's business, Elegant Marble Imports; (7) registration was accomplished through the Elegant Marble facilities; (8) Elegant Marble Imports appeared to be providing facilities and personnel for the school; and/or (9) Bueche had stated that he and the Bueche family, with their family business, were providing financial support to the school and would help purchase or lease facilities for classrooms. One affidavit stated that, at a social function, Bueche personally thanked the affiant for participating in the *854 organization of the school. Bueche told the affiant that he personally wanted to make the school succeed and that Bueche appreciated the affiant's support. Each of the affiants declared that, based on these facts, he was "convinced" that Bueche was a "key financial management figure" in the school.
Bueche filed objections to these affidavits, and he asks this court to consider the objections as evidence supporting the summary judgment. The objections are that the affidavits, insofar as they contain statements made by Ken Bueche, are inadmissible hearsay; that statements that Bueche knew his son was telling others that he was helping to finance the venture are conclusory and based on opinion and that they attempt to describe Bueche's state of mind; that the allegation that Bueche "appeared to be" helping with the purchase of books and equipment and assisting in the management of the school was conclusory and based on opinion; and that the statements that the affiants were convinced that Bueche was involved in the finance and management of the school were conclusory.
That an affidavit contains inadmissible hearsay is a waivable defect. Einhorn v. LaChance, 823 S.W.2d 405, 410 (Tex. App.Houston [1st Dist.] 1992, writ dism'd w.o.j.), cert. denied, 517 U.S. 1135, 116 S. Ct. 1420, 134 L. Ed. 2d 544 (1996). While Bueche filed objections to the affidavits, he did not obtain a ruling on those objections. See Utilities Pipeline Co. v. American Petrofina Marketing, 760 S.W.2d 719, 723 (Tex.App. Dallas 1988, no writ) (requiring written ruling on summary judgment evidentiary objections). Therefore, they are waived. See TEX.R. CIV.EVID. 802. Statements that Bueche and his son were "discussing" plans are not hearsay, unless Ken Bueche's words or the substance of those words are repeated. See TEX.R. CIV. EVID. 801(d) (hearsay is statement of another, offered to prove truth of matter asserted). These allegations report that discussions took place; they do not report the content of such discussions.
A conclusory statement in an affidavit has been held to be a defect in substance rather than a defect in form and is therefore not waivable. See Progressive County Mut. Ins. Co. v. Carway, 951 S.W.2d 108, 117 (Tex.App.Houston [14th Dist.] 1997, writ denied); Harley-Davidson Motor Co., Inc. v. Young, 720 S.W.2d 211, 216 (Tex.App. Houston [14th Dist.] 1986, no writ); Timothy Patton, Summary Judgments in Texas 76 (1992). Because we find that the affidavits raise sufficient fact issues regarding Bueche's own alleged misrepresentations, we do not decide whether they sufficiently raise the issue of apparent or actual authority. Assuming without deciding that those statements describing such authority are conclusory, we do not find this defect to be fatal. Even if some statements in an affidavit are conclusory, a reviewing court may find remaining factual assertions that are sufficient to defeat summary judgment. Marshall v. Sackett, 907 S.W.2d 925, 933 (Tex.App. Houston [1st Dist.] 1995, no writ).
We do not agree that the statements regarding what Bueche "appeared" to be doing are conclusory. Those statements are based on the factual assertions that Bueche kept textbooks at his business, accepted tuition payments at his place of business, acted with authority when his son was absent, and made various representations to students regarding the school. We agree that what the affiants were "convinced of" is irrelevant without factual assertions supporting their convictions. However, we find such assertions present.
These affidavits directly refute the evidence presented by Bueche that he made no misrepresentations regarding the school. The alleged misrepresentationsthat books and facilities would be furnished for the school and that, implicitly, the school had sound financial backingwere of the sort that a prospective student might rely upon. Although the response only contained affidavits from four of the Students, we find that the affidavits satisfied the burden imposed on each of the Students to point of evidence raising a fact issue on the challenged element of the absence of misrepresentations. Bueche contended that there was no evidence that he made misrepresentations, and the affidavits raise a fact issue as to whether he did. Each Student was not required to prove that Bueche made misrepresentations to that *855 Student since Bueche only challenged whether he made material misrepresentations at all.
DTPA
Bueche's summary judgment motion also contended that the Students failed to establish the requisite elements of their DTPA claim. See TEX. BUS. & COM.CODE ANN. § 17.46(b)(2), (3), (5), (7), (9), (23), and § 17.50(a)(1), (2), (3) (Vernon Supp.1998). Those elements are: (1) that the plaintiff is a consumer; (2) that the act was a producing cause of actual damages; and (3) that the act was prohibited by section 17.50(a)(1-4) of the Texas Business and Commerce Code. Bueche argued that the Students could not be consumers visvis him, because his son owned and operated the school and sold the services of the school. He stated there was no allegation that he authorized any statements made by his son. Bueche argued that any representation by his son reflected nothing more than Bueche's intent to donate money to the school. According to Bueche, a donation is not considered a purchase for purposes of the DTPA.
A consumer under the DTPA is one who "sought or acquired by purchase or lease." TEX. BUS. & COM.CODE ANN. § 17.45(4) (Vernon 1987 and Supp.1998). To come within this definition, the plaintiff must have sought or acquired goods or services by purchase or lease, and those goods and services must be the basis of the complaint. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 539 (Tex.1981). A gratuitous act is not a purchased good or service under the Act. Longview Sav. & Loan Assoc. v. Nabours, 673 S.W.2d 357, 362 (Tex.App.Texarkana 1984), aff'd on other grounds, 700 S.W.2d 901 (Tex.1985).
While here, too, Bueche met his summary judgment burden by asserting that the Students failed to establish their status as consumers, an essential element of their DTPA claim, we find that the four affidavits filed in response to Bueche's motion raise issues of fact that should be determined by a jury. The affiants assert that Bueche's business, Elegant Marble Imports, was used for registration purposes. At least one of the affiants states that he mailed his tuition checks to that business. Another states that Bueche was personally grateful for the affiant's enrolling in the school. These statements raise a fact issue about whether the Students were consumers of services offered by Bueche.
The case cited by Bueche to support his claims that he was doing no more than donating money to the school is inapposite to this case. See Nabours, 673 S.W.2d at 362. In Nabours, the court of appeals determined that the appellee was not a consumer within the meaning of the DTPA because he had not paid consideration to the appellant. Id. at 362. Instead, the appellee had merely asked the appellant for consent to purchase a home, and that consent was gratuitous. Id.
In this case, the Students argue that registration and at least some payment of tuition was accomplished through Bueche's business. Whether Bueche gratuitously donated money to his son's enterprise is not dispositive of our inquiry into whether the Students were consumers; clearly they were. The Students need not be in contractual privity with Bueche in order to be consumers. See Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705, 707 (Tex.1983); Inglish v. Union State Bank, 911 S.W.2d 829, 834 (Tex.App.Corpus Christi 1995), rev'd on other grounds, 945 S.W.2d 810 (Tex.1997); Allied Towing Serv. v. Mitchell, 833 S.W.2d 577, 581 (Tex.App.Dallas 1992, no writ). Consumer status under the DTPA is defined by the plaintiff's relationship to the goods or services, not by his relationship to his opponent. Mitchell, 833 S.W.2d at 582. It is enough that the defendant have a relationship to the transaction and enjoy the benefits of that transaction. Inglish, 911 S.W.2d at 834. While the Students have not conclusively proven that Bueche has done so, the evidence that some payments were sent to Bueche's business, that he personally thanked students for enrolling in the school, and that he assumed a management position in his son's absence pointed out evidence that raised a fact issue on this element of their DTPA claim.
*856 Statute of Frauds
Bueche argues that summary judgment was appropriate because the Students' claims are barred by the statute of frauds. See TEX. BUS. & COM.CODE ANN. § 26.01(b)(2) (Vernon 1987). Since statute of frauds is an affirmative defense, TEX.R. CIV. P. 94, Bueche retains the burden of conclusively establishing all the elements of the affirmative defense as a matter of law such that there is no genuine issue of material fact. Judge David Hittner & Lynne Liberato, No-Evidence Summary Judgments Under the New Rule, in STATE BAR OF TEXAS PROF. DEV. PROGRAM, 20 ADVANCED CIVIL TRIAL COURSE D, D-3 (1997); see also Pena v. Van, 960 S.W.2d 101, 105 (Tex.App.Houston [1st Dist.] 1997, pet. filed) (under new procedure, party with burden of proof at trial has same burden at summary judgment proceeding). We review whether the summary judgment was properly granted based on the statute of frauds under the traditional summary judgment standard.
According to Bueche, his alleged promise to help support the school financially amounted to a "promise to answer for the debt, default, or miscarriage of another person" and, as such, is not enforceable if not in writing. See TEX. BUS. & COM.CODE ANN. § 26.01(b)(2) (Vernon 1987). We disagree for several reasons.
Initially, we note that, in its present posture, this is not a suit to enforce a contract. Instead, this suit is brought under theories of common law fraud and DTPA violations. This court has held that a DTPA claim is statutory, not contractual. Webb v. International Trucking Co., Inc., 909 S.W.2d 220, 228 (Tex.App.San Antonio 1995, no writ). In Webb, we held that such claims cannot be barred by the statute of frauds. Id. Other courts have recognized that, in some cases, DTPA claims may be so barred. See Rodriguez v. Klein, 960 S.W.2d 179, 183 (Tex.App.Corpus Christi 1997, no writ); Keriotis v. Lombardo Rental Trust, 607 S.W.2d 44, 46 (Tex.Civ.App.Beaumont 1980, writ ref'd n.r.e.). To determine whether the statute of frauds could bar these and common law fraud claims, those courts look at the relationship of the alleged promise to the purpose of the statute of frauds and the nature of the damages sought. Keriotis, 607 S.W.2d at 46 (DTPA claims); Leach v. Conoco, Inc., 892 S.W.2d 954, 960 (Tex.App. Houston [1st Dist.] 1995, writ dism'd w.o.j.) (fraud claims). Applying this analysis, we conclude the claims are not barred.
The purpose of the statute of frauds is to safeguard the integrity of contracts and to prevent fraud and perjury when those contracts are brought into court. See Davis v. Crockett, 398 S.W.2d 302, 305 (Tex.Civ. App.Dallas 1965, no writ). Damages are sought pursuant to a breach of contract claim and amount to the benefit of the bargain. Leach, 892 S.W.2d at 960. The Students here do not seek the benefit of their bargain, or what they would have obtained had any promise been performed. Their final petition seeks return of their tuition, fees, time, and income; damages for mental anguish (not recoverable in a contract action); and attorneys fees. In addition, they sought exemplary damages. We do not believe that this suit can be properly characterized as a suit to enforce an agreement. See U.S. v. Henderson, 19 F.3d 917, 922 (5th Cir.1994) (statute of frauds cannot be used to facilitate execution of fraud), cert. denied, 513 U.S. 877, 115 S. Ct. 207, 130 L. Ed. 2d 137; Inman v. Wallace, 558 S.W.2d 554, 556 (Tex.Civ. App.Waco 1977, no writ) (statute of frauds does not apply where claim is not based upon oral promises or agreement but upon defendant's fraud in making the promise).
Even if the statute should apply to these claims, we do not construe the Students' allegations to be that Bueche served as a guarantor of his son's debts. As we read the allegations and the affidavits filed in support of the Students' summary judgment response, the Students claim that Bueche was a participant in the founding, financing, and management of the school. See Keith v. Woodul, 616 S.W.2d 375, 377 (Tex.Civ.App. Texarkana 1981, no writ) (where promisor's leading purpose is to serve some interest of his own, his promise to accept the primary responsibility for the debt of another does not fall within the statute of frauds and is enforceable, even if oral). The Students do not characterize Bueche's promises as promises *857 made to his son to guarantee his debt. Instead, the promises are to the Students that the school would have books, facilities, financial support, and a future. We find that the statute of frauds is inapplicable to this case.
CONCLUSION
The affidavits attached to the Students' response to Bueche's motion for summary judgment pointed out evidence that raised genuine issues of material fact on the elements of the Students' fraud and DTPA claims that were challenged in the motion. We reverse the trial court's judgment and remand the cause for trial.
NOTES
[1] Although some of the plaintiffs below named Mary Bueche as a defendant, none of those plaintiffs are represented in this appeal. Therefore, the summary judgment granted in her favor is final, and we consider only the order granted in favor of Clifford Bueche. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619704/ | 13 So. 3d 1070 (2007)
Federico LABRADOR, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D05-994.
District Court of Appeal of Florida, Third District.
August 15, 2007.
Rehearing Denied August 5, 2009.
Silvia M. Gonzalez, for appellant.
Bill McCollum, Attorney General and Maria T. Armas, Assistant Attorney General, for appellee.
Before COPE, GREEN, and ROTHENBERG, JJ.
GREEN, J.
Federico Labrador appeals from a withhold of adjudication and sentences imposed for multiple counts of fraud and grand theft. We reverse in part, affirm in part, and remand.
On April 30, 2002, Labrador, a physician's assistant, was charged by information with two counts of making false insurance claims and two counts of grand theft. State Farm Insurance and Fortune Insurance were the victims in the separate counts. Specifically, Count I of the information charged that:
FEDERICO TOMAS LABRADOR on or BETWEEN FEBRUARY 16, 2000 AND APRIL 19, 2000 ... did unlawfully, willfully and feloniously and with the intent to injure, defraud or deceive an insurance company, to wit: FORTUNE INSURANCE, present, cause to be presented, or prepare or make with knowledge or belief that it would be presented to any insurer, purported insurer, servicing corporation, insurance broker, or insurance agent, or any employee or agent thereof, any false, incomplete, or misleading information or written or oral statement as part of or in support of AND/OR a claim for payment or other benefit pursuant to an insurance policy *1071 knowing that such statement contained false, incomplete or misleading information concerning any fact or thing material to such claim, to wit: FRAUDULENT INSURANCE MEDICAL BILLINGS FOR HORACIO ACOSTA, in violation of s. 817.234(1) and s[.] 777.011[,] Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
Similarly, Count II provided that:
FEDERICO TOMAS LABRADOR on or BETWEEN JUNE 27, 2000 AND AUGUST 10, 2000 ... did unlawfully, willfully and feloniously and with the intent to injure, defraud or deceive an insurance company, to wit: STATE FARM INSURANCE COMPANY[,] present, cause to be presented, or prepare or make with knowledge or belief that it would be presented to any insurer, purported insurer, servicing corporation, insurance broker, or insurance agent, or any employee or agent thereof, any false, incomplete, or misleading information or written or oral statement as part of or in support of AND/OR a claim for payment or other benefit pursuant to an insurance policy knowing that such statement contained false, incomplete or misleading information concerning any fact or thing material to such claim, to wit: FRAUDULENT MEDICAL BILLINGS FOR WILLIE AMOS, in violation of s. 817.234(1) and s[.] 777.011[,] Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
On December 22, 2003, the State filed an amended information that added a new crime, organized scheme to defraud; as well as five counts of insurance fraud and three counts of grand theft. Labrador moved to dismiss the organized scheme to defraud claim on statute of limitations grounds. Before the motion was heard, the State amended the information several more times. The final information was filed on September 20, 2004, and brought forty-six counts against Labrador, including the count for organized scheme to defraud, which alleged that:
FEDERICO TOMAS LABRADOR and JOSE ANTONIO TERUEL, on or between February 16, 2000 and August 21, 2000 ... acting in concert each with the other, and with MICHELE HUARTE, did unlawfully and feloniously engage in a scheme to defraud as defined by s. 817.034(3)(d), by engaging in a systematic, ongoing course of conduct with intent to defraud one or more persons, to wit: STATE FARM INSURANCE and/or FORTUNE INSURANCE and/or THEIR OWNERS and/or PRINCIPALS and/or SHAREHOLDERS, by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act, and did thereby obtain property, to wit: PAYMENT FOR MEDICAL SERVICES NOT RENDERED, of an aggregate value of less than twenty thousand dollars ($20,000.00), the property of STATE FARM INSURANCE and/or THEIR OWNERS and/or PRINCIPALS and/or SHAREHOLDERS, as owner or custodian, in violation of s. 817.034(4)(a)3 and s. 777.011, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
Labrador, again, moved to dismiss the charge of organized scheme to defraud on statute of limitations grounds. The motion claimed that the charge was brought more than three years after the last incident of fraud was alleged to have occurred (August 21, 2000). The trial court denied the *1072 motion to dismiss and Labrador was tried on all of the joined counts. The jury found Labrador guilty of three counts of insurance fraud, two counts of communications fraud, of the organized scheme to defraud count and of a single count of grand theft.[1] Adjudication was withheld and Labrador was sentenced to a term of probation.
On this appeal, Labrador claims, among other things, that the trial court erred in failing to dismiss the organized scheme to defraud count because it was filed after the statute of limitations had expired. We agree and reverse on this ground only.
The charge of organized scheme to defraud, a third-degree felony, was filed against Labrador on December 22, 2003. The alleged incidents giving rise to the charge occurred between February 16, 2000, and August 21, 2000. The statute of limitations for a third-degree felony is three years. See § 775.15(2)(b), Fla. Stat. (2000). Since this charge was filed more than three years after the last alleged incident, Labrador is correct in his assertion that the charge was time barred.
The dissent, relying on cases where the State refiled the same crimes previously charged against the defendant,[2] or instances where the "new" crime had been raised in a previously, timely filed information,[3] opines that the organized scheme to defraud count is not time barred because it is merely a continuation of the original prosecution for making false insurance claims and grand theft. It is not.
"A superseding indictment brought after the statute of limitations has expired is valid so long as the original indictment is still pending and was timely and the superseding indictment does not broaden or substantially amend the original charges." United States v. Italiano, 894 F.2d 1280, 1282 (11th Cir.1990).
Here, the State brought a new charge, alleging a new and distinct crime with different elements, under a completely different statute. It flies in the face of reason, and the law, to find that the organized scheme to defraud count in this case was a continuation of the original prosecution. Accordingly, we reverse in part, affirm in part, and remand with instructions that the claim of organized scheme to defraud be dismissed.
COPE, J., concurs.
*1073 ROTHENBERG, J. (concurring in part, and dissenting in part).
I concur with the majority opinion in affirming the trial court's order of judgment and sentence. Unlike the majority, however, I find no error in the trial court's failure to dismiss the organized scheme to defraud count as being time barred, as there is sufficient linkage between the original and final amended informations to properly view the organized scheme to defraud count as a continuation of the original timely filed charge of fraud. I, therefore, respectfully dissent as to this point, and I would affirm the trial court's order on all grounds.
The State filed its original information on or about April 30, 2002, charging Labrador with two counts of making false and fraudulent insurance claims and two counts of grand theft. The victims in the separate counts were State Farm Insurance and Fortune Insurance. Count I of the original information states as follows:
FEDERICO TOMAS LABRADOR on or BETWEEN FEBRUARY 16, 2000 AND APRIL 19, 2000 ... did unlawfully, willfully and feloniously and with the intent to injure, defraud or deceive an insurance company, to wit: FORTUNE INSURANCE, present, cause to be presented, or prepare or make with knowledge or belief that it would be presented to any insurer, purported insurer, servicing corporation, insurance broker, or insurance agent, or any employee or agent thereof, any false, incomplete, or misleading information or written or oral statement as part of or in support of AND/OR a claim for payment or other benefit pursuant to an insurance policy knowing that such statement contained false, incomplete or misleading information concerning any fact or thing material to such claim, to wit: FRAUDULENT INSURANCE MEDICAL BILLINGS FOR HORACIO ACOSTA, in violation of s. 817.234(1) and s[.] 777.011[,] Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
Similarly, Count II of the original information states as follows:
FEDERICO TOMAS LABRADOR on or BETWEEN JUNE 27, 2000 AND AUGUST 10, 2000 ... did unlawfully, willfully and feloniously and with the intent to injure, defraud or deceive an insurance company, to wit: STATE FARM INSURANCE COMPANY[,] present, cause to be presented, or prepare or make with knowledge or belief that it would be presented to any insurer, purported insurer, servicing corporation, insurance broker, or insurance agent, or any employee or agent thereof, any false, incomplete, or misleading information or written or oral statement as part of or in support of AND/OR a claim for payment or other benefit pursuant to an insurance policy knowing that such statement contained false, incomplete or misleading information concerning any fact or thing material to such claim, to wit: FRAUDULENT MEDICAL BILLINGS FOR WILLIE AMOS, in violation of s. 817.234(1) and s[.] 777.011[,] Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
On or about December 22, 2003, the State filed an amended information, wherein it nolle prossed the four original counts and added one count of organized scheme to defraud (a new Count I, which ultimately became Count 42), five counts of false and fraudulent insurance claims, and three counts of grand theft. Subsequently, *1074 the State amended the information several more times until it filed the final amended information on or about September 20, 2004, charging Labrador and a co-defendant, Jose Antonio Teruel, with forty-six counts of third degree felonies, including the organized scheme to defraud count (Count 42), for acts committed on or between February 16, 2000, through August 21, 2000. Count 42 of the final amended information states that:
FEDERICO TOMAS LABRADOR and JOSE ANTONIO TERUEL, on or between February 16, 2000 and August 21, 2000 ... acting in concert each with the other, and with MICHELE HUARTE, did unlawfully and feloniously engage in a scheme to defraud as defined by s. 817.034(3)(d), by engaging in a systematic, ongoing course of conduct with intent to defraud one or more persons, to wit: STATE FARM INSURANCE and/or FORTUNE INSURANCE and/or THEIR OWNERS and/or PRINCIPALS and/or SHAREHOLDERS, by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act, and did thereby obtain property, to wit: PAYMENT FOR MEDICAL SERVICES NOT RENDERED, of an aggregate value of less than twenty thousand dollars ($20,000.00), the property of STATE FARM INSURANCE and/or THEIR OWNERS and/or PRINCIPALS and/or SHAREHOLDERS, as owner or custodian, in violation of s. 817.034(4)(a)3 and s. 777.011, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
The majority correctly states that the crime of organized scheme to defraud is a third degree felony and that the statute of limitations for a third degree felony is three years. The criminal activity giving rise to the organized scheme to defraud occurred between February 16, 2000, and August 21, 2000. If we were to look at the December 2003 information in isolation, then I would agree with the majority that the organized scheme to defraud charge was time barred as it was filed more than three years after the last alleged criminal activity. However, the December 2003 information was simply a continuation of the same prosecution, which was timely commenced by the State when it filed the original information on or about April 30, 2002, charging Labrador with two counts of fraud.
Florida's courts consistently have held that "[a] subsequently filed information, which contains language indicating that it is a continuation of the same prosecution, timely commenced will not be considered an abandonment of the first information and therefore[,] will not be barred by the statute of limitations." Rubin v. State, 390 So. 2d 322, 324 (Fla.1980); see also State v. Douglas, 919 So. 2d 481, 482 (Fla. 3d DCA 2005)("[S]ubsequently-filed informations `will not be subject to the statute of limitations when they are shown to be connected with and in continuation of a prosecution timely begun.'") (quoting State v. Adjmi, 170 So. 2d 340, 343 (Fla. 3d DCA 1964)); State v. Sharpe, 807 So. 2d 818, 818 (Fla. 4th DCA 2002)(affirming the trial court's order based on the Rubin and Adjmi precedent that an amended information shown to be connected with and a continuation of an original information will not be subject to the statute of limitations if the original information was timely filed); see also United States v. Italiano, 894 F.2d 1280, 1282 (11th Cir.1990)("A superseding indictment brought after the statute of limitations has expired is valid so long as the original indictment is still pending and was timely and the superseding indictment does not broaden or substantially amend the original charges.").
*1075 Here, as Labrador concedes, the original information was timely filed on or about April 30, 2002. Thus, the only question is whether a sufficient connection has been shown to exist between the original information and the final amended information. Upon examining the language of the original information, the subsequent amended informations, and the final amended information, I would conclude that "sufficient linkage exists in this case and that the charge should not [be] dismissed," Douglas, 919 So.2d at 483, as the three-year limitation period was tolled by the filing of the original information.
As the Fourth District Court of Appeal correctly noted in State v. Garofalo:
The sole purpose of a statute of limitations in the criminal context is to prevent the State from hampering defense preparation by delaying prosecution until a point in time when its evidence is stale and defense witnesses have died, disappeared or otherwise become unavailable. Since one who has been squarely put on notice of criminal activities with which he is charged is in a position to begin preparation of a defense on those charges, courts have traditionally held that a valid indictment tolls the statute of limitations, and that return of a superceding [sic] indictment prior to the dismissal of the original indictment does not violate the statute of limitations if the superceding [sic] indictment does not substantially alter the charge.
State v. Garofalo, 453 So. 2d 905, 906 (Fla. 4th DCA 1984) (citations omitted). "For purposes of the statute of limitations, the `charges' in the superseding indictment are defined not simply by the statute under which the defendant is indicted, but also by the factual allegations that the government relies on to show a violation of the statute." Italiano, 894 F.2d at 1282.[4] "If the allegations and charges are substantially the same in the old and new indictments, the assumption is that the defendant has been placed on notice of the charges against him. That is, he knows that he will be called to account for certain activities and should prepare a defense." Id. at 1283.
Based on the case law discussed above, I do not agree with the majority that the organized scheme to defraud is an entirely new crime for which the limitations period has expired. In this case, Labrador was clearly put on notice as to the criminal activity charged in the organized scheme to defraud count. Specifically, the factual allegations surrounding the criminal activity are the same, the dates and the victim insurance companies are the same, and the potential witnesses would be the same. The original timely filed information charged Labrador with (1) making false and fraudulent insurance claims between February 16, 2000, and April 19, 2000 to Fortune Insurance for Horacio Acosta, and (2) making false and fraudulent insurance claims between June 27, 2000, and August 10, 2000 to State Farm Insurance for Willie Amos. The amended informations charging Labrador with organized scheme to defraud alleges that he schemed to defraud these same two insurance companies during the same time frame from February 16, 2000, to August 21, 2000. Consequently, I would hold that the original information charging Labrador with two counts of fraud, which was timely filed, *1076 tolled the statute of limitations as to the organized scheme to defraud charge, since a sufficient connection has been shown to exist in this case, and would affirm on all counts.
NOTES
[1] The trial court vacated the grand theft conviction on double jeopardy grounds.
[2] See Rubin v. State, 390 So. 2d 322, 324 (Fla. 1980), where the subsequent amended information was deemed a continuation of the same prosecution because the second information noted that it was a refile and because it charged identical crimes. Similarly, in State v. Garofalo, 453 So. 2d 905, 906 (Fla. 4th DCA 1984), a subsequent information which changed the name of the victim but maintained identical allegations of criminal conduct was deemed a continuation of the original prosecution.
[3] In State v. Douglas, 919 So. 2d 481 (Fla. 3d DCA 2005), the defendant had been charged with sexual battery and convicted of aggravated battery as a lesser included crime. On appeal, this court reversed the defendant's conviction on grounds that the information did not contain an essential allegation for the crime of aggravated battery and thus the instruction for this lesser included should not have been given to the jury. On remand, after the statute of limitations had expired, the State filed an information for aggravated battery. The defense moved to dismiss on statute of limitations grounds. The trial court granted the motion and the State appealed. We reversed finding that the first (original) information made reference to aggravated battery by citing to Florida Statute 775.087 (1999), and as such the new information charging the defendant with aggravated battery was properly connected to, and in the continuation of, the original timely filed prosecution.
[4] For purposes of this analysis, the terms "indictment" and "information" are used interchangeably as an indictment is defined as a "formal written accusation of a crime made by a grand jury and presented to the court for prosecution against an accused," and an information is defined as "[a] formal criminal charge made by a prosecutor without a grand-jury indictment." Black's Law Dictionary 788, 795 (8th ed.2004). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619729/ | 955 So. 2d 1256 (2007)
Corey Terrell STUDEMIRE, Appellant,
v.
STATE of Florida, Appellee.
No. 4D05-4019.
District Court of Appeal of Florida, Fourth District.
May 23, 2007.
Carey Haughwout, Public Defender, and Lindsay Hanson, Assistant Public Defender, West Palm Beach, for appellant.
*1257 Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION FOR REHEARING
STONE, J.
We deny Studemire's motion for rehearing, but withdraw the previous opinion of April 11, 2007, and replace it with the following:
Studemire was convicted of possession of a firearm by a felon. He challenges an order denying his motion to suppress his statement to the police and the denial of his motion for judgment of acquittal. We affirm.
On New Year's Day, after 1:00 a.m., Officer MacVane, while patrolling within the city limits, heard gunshots being fired and proceeded to an area from which he believed the shots originated, where he found Studemire and another man, Chappelle. They were standing in a driveway by a vehicle. There were bullet casings and shotgun shells on the ground. Chappelle admitted to MacVane that he was the person who fired the shots and produced a shotgun. Chappelle also acknowledged having other guns on the premises and consented to the officer's search of the house, where the officer found two more guns.
Additional police officers arrived at the scene. One asked for Studemire's identification, to which he replied he had none. When the officer inquired as to his name, Studemire gave him a false name. MacVane then asked him to identify himself, and, again, Studemire gave a false name. After MacVane confronted him, Studemire gave a second name, an alias under which he had been previously convicted. MacVane decided to detain Studemire, handcuffed him, and placed him in the back of his patrol car. The record is silent as to whether MacVane conducted a pat-down of Studemire.
While this was going on, the other officers found an automatic handgun lying in plain view on top of the passenger side front tire of the vehicle. MacVane asked if the handgun had been discharged by Studemire. Studemire, who had been read Miranda rights, replied in the affirmative and also admitted that he was a convicted felon. Studemire later signed a written confession admitting that he and other persons fired the guns.
During trial, Studemire moved to suppress all statements made after he was handcuffed and placed in the patrol car.
Clearly, MacVane had the requisite reasonable suspicion to conduct a Terry[1] stop. The question in this case is whether MacVane's actions in placing Studemire in handcuffs and placing him in the back of the car escalated the detention to a de facto arrest, for which probable cause is necessary.
The use of handcuffs does not automatically turn an investigatory stop into a de facto arrest. Reynolds v. State, 592 So. 2d 1082, 1084 (Fla.1992) (citations omitted)(emphasis added) ("Courts have generally upheld the use of handcuffs in the context of a Terry stop where it was reasonably necessary to protect the officers' safety or to thwart a suspect's attempt to flee."); Curtis v. State, 748 So. 2d 370, 372 (Fla. 4th DCA 2000) ("officer may detain the individual even at gunpoint and/or by handcuffs for the officer's safety without converting the Terry stop into a formal arrest").
*1258 We conclude, based on the totality of the circumstances, that Studemire was lawfully detained and that the temporary detention was not converted into a de facto arrest by handcuffing him and holding him in the police car. We note that Officer MacVane testified that part of the reason Studemire was handcuffed was because
it would have been better, for officer safety, to make sure that he was handcuffed. Had he been an escaped prisoner from some other jurisdiction and wanted to run somewhere else on the property and grab a gun and shoot us; we were detaining him for our safety, and to also conduct his to conduct our investigation as to his identity and this investigation in this whole shooting.
We recognize that the officer's testimony regarding his concern for safety would be, to some extent, impeached if he failed to frisk Studemire before entering the house. This fact, however, was taken into consideration by the trial court. Further, the determinative factor is not the officer's belief, but what the objective facts present to a reasonable officer. The test for evaluating an officer's acts based on concern for safety is not the officer's subjective thoughts, but the rational inferences that a reasonably prudent person would draw under the circumstances. Snelling v. State, 591 So. 2d 246 (Fla. 4th DCA 1991); Graham v. State, 495 So. 2d 852 (Fla. 4th DCA 1986); United States v. Yeomans, 211 Fed.Appx. 753 (10th Cir. 2007).
Notwithstanding the possibility that Officer MacVane failed to frisk Studemire, the objective circumstances at the scene presented valid and reasonable concern for officer safety. Guns were recently fired; there were multiple guns on the premises, some loaded; the other person at the scene acknowledged firing a shotgun; there were numerous, and a variety of, shell casings on the ground; at least one weapons offense had already occurred; and firearms matching the shell casings, other than the shotgun, had not yet been found. Patently, there was a realistic threat that other weapons were outside the house and the other officers were searching the area. Additionally, Studemire was uncooperative and had already given two false names.
Therefore, we conclude that the motion to suppress and the motion for judgment of acquittal were properly denied.
As to other issues raised, we find no reversible error or abuse of discretion.
STEVENSON, C.J., concurs.
POLEN, J., dissents with opinion.
POLEN, J., dissenting.
I dissent from the majority's opinion in this case. While officer safety is always a concern, under the facts of this case I do not believe that Officer MacVane was under such fear for his safety that the use of handcuffs was justified.
Studemire moved to suppress the evidence against him at trial, and the trial court denied the motion. During the course of the trial, Studemire also moved for judgment of acquittal, arguing that the State had failed to establish corpus delicti. The trial court also denied this motion.
When reviewing a denial of a motion to suppress,
[A]ppellate courts should continue to accord a presumption of correctness to the trial court's rulings on motions to suppress with regard to the trial court's determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and by *1259 extension, article I, section 9, of the Florida Constitution.
State v. Colitto, 929 So. 2d 654, 662 (Fla. 4th DCA 2006) (quoting Connor v. State, 803 So. 2d 598, 608 (Fla.2001)). I note that under the facts of the case, it is clear that MacVane had the requisite reasonable suspicion to conduct an investigatory stop of Studemire. This type of detention is also known as a Terry[2] stop.
[T]he second level of a police encounter involves the Terry stop or the temporary investigative "stop and frisk". A Terry stop is permissible if the detention is temporary and reasonable under the circumstances and only if the police officer has a well-founded suspicion that the individual detained has committed, is committing, or is about to commit a crime. This temporary detention is deemed to be a less intrusive invasion of privacy than a formal arrest and, therefore, may be constitutionally accomplished merely on articulable or founded suspicion of criminal activity. The founded suspicion needed to justify an investigatory stop is fact specific to each case, but it is to be based upon the totality of the circumstances as viewed by an experienced police officer . . . Additionally, the officer may detain the individual even at gunpoint and/or by handcuffs for the officer's safety without converting the Terry stop into a formal arrest.
Curtis v. State, 748 So. 2d 370, 372 (Fla. 4th DCA 2000). The question in this case is whether MacVane's actions in placing Studemire in handcuffs and putting him in the back of the car escalated the detention to a de facto arrest, for which probable cause is necessary.
The use of handcuffs does not automatically turn an investigatory stop into a de facto arrest. "Courts have generally upheld the use of handcuffs in the context of a Terry stop where it was reasonably necessary to protect the officer's safety or to thwart a suspect's attempt to flee." Reynolds v. State, 592 So. 2d 1082, 1084 (Fla. 1992). However, "absent other threatening circumstances . . . the handcuffs should be removed." Id. at 1085. "While handcuffs do not in and of themselves signify an arrest, they heighten the degree of intrusion." Cocke v. State, 889 So. 2d 132, 134 (Fla. 4th DCA 2004).
Whether such action is appropriate depends on whether it is a reasonable response to the demands of the situation. When such restraint is used in the course of an investigative detention, it must be temporary and last no longer than necessary to effectuate the purpose of the stop. The methods employed must be the least intrusive means reasonably available to verify or dispel in a short period of time the officers' suspicions that the suspect may be armed and dangerous. Absent other threatening circumstances, once the pat-down reveals the absence of weapons the handcuffs should be removed.
Id. (internal citations omitted). Once the suspect poses no risk to the officer, the detention by handcuffs turns into an arrest (a de facto arrest) that must be supported by probable cause. See Melendez v. Sheriff of Palm Beach County, 743 So. 2d 1145, 1148 (Fla. 4th DCA 1999).
Under the facts of this case, I would find that the use of handcuffs was unjustified and transformed what was a justified detention into a de facto arrest. MacVane initially testified at the suppression hearing that he was not in fear for his safety. While MacVane later mentioned safety concerns, MacVane could give no reason why, if he was concerned for his safety, he *1260 would enter Chappelle's residence to search for more guns while leaving Studemire unattended outside. Based on the officer's initial testimony and his actions, I would hold that MacVane was not in fear for his safety, and there were no "other threatening circumstances" that would justify the detention. See Cocke, 889 So.2d at 134. While the presence of numerous shell casings on the property and the officer's suspicion that there might be more guns in the vicinity could be viewed as "other threatening circumstances," MacVane admitted that this was not the case.
Since Studemire's detention amounted to a de facto arrest, unless MacVane had probable cause to arrest Studemire, the trial court should have granted Studemire's motion to suppress. MacVane admitted at the suppression hearing that prior to Studemire's confession that he was a felon, he did not have probable cause to arrest Studemire. The record does not reflect any probable cause to arrest the suspect, and therefore, the trial court should have granted the appellant's motion to suppress. See Poey v. State, 562 So. 2d 449, 450 (Fla. 3d DCA 1990).
At trial, Studemire also moved for judgment of acquittal, arguing that the State had not proven, independent of his confession, that he committed a crime, and hence, there was a lack of corpus delicti. "The standard of review for a court's denial of a judgment of acquittal is de novo." Sampson v. State, 863 So. 2d 404, 405 (Fla. 4th DCA 2003).
If there is competent substantial evidence to support the jury's verdict, the trial court's denial of the motion will not be disturbed on appeal. In reviewing the trial court's denial of the motion for judgment of acquittal, the appellate court must follow the well settled principle that a defendant, in moving for a judgment of acquittal, admits all facts adduced in evidence, and the court draws every conclusion favorable to the state which is fairly and reasonably inferable from that evidence.
Sapp v. State, 913 So. 2d 1220, 1223 (Fla. 4th DCA 2005). In order to prove corpus delicti, the State must prove:
(1) that a crime of the type charged was committed; and (2) that the crime was committed through the criminal agency of another. In regard to the first part-that a crime was committed-each element of the relevant offense must be shown to exist. With respect to the second part-the criminal agency of another-the proof need not show the specific identity of the person who committed the crime. That is, it is not necessary to prove that the crime was committed by the defendant.
Garmon v. State, 772 So. 2d 43, 46 (Fla. 4th DCA 2000). "The essential requirement appears to be that in order for the admission of the inculpatory statement there must be other evidence of the crime charged." Id. The purpose of the corpus delicti rule is to ensure that no conviction is obtained "based on `derangement, mistake or official fabrication.'" Id. (quoting State v. Allen, 335 So. 2d 823, 825 (Fla. 1976)).
The State argues that there was sufficient evidence to show that a crime had been committed, i.e., a gun had been fired within the city limits. However, the State needed to present evidence that the crime actually charged took place, not just that any crime had taken place. See Garmon, 772 So.2d at 46.
To prove the crime of unlawful possession of a firearm by a convicted felon, the State needs to establish the following two elements beyond a reasonable doubt: 1) The defendant has been convicted of a felony; and 2) After the *1261 conviction, the defendant owned or had in his care, custody, possession, or control, a firearm.
Morris v. State, 869 So. 2d 1264, 1267 n. 1 (Fla. 3d DCA 2004) (citing § 790.23, Fla. Stat. (2001)). In this case, while the State might not need to prove that Studemire was the felon in possession of a handgun, it needed to prove, independent of Studemire's confession, that there was a felon in possession of the handgun. See Garmon v. State, 772 So.2d at 46. The State failed to do so. MacVane failed to determine that Studemire was a felon before his detention turned into a de facto arrest, thereby precluding independent confirmation of his status as a felon. If MacVane had independently determined that Studemire was a felon, the proximity of the discovered gun to where he was standing would have been enough to establish corpus delicti. This was not the situation in the instant case. Any evidence presented by the State that Studemire was a felon, independent of his confession, was obtained as a result of the confession, and was therefore insufficient to establish corpus delicti.
On the basis of this analysis, I would find that the trial court erred in denying Studemire's motion to suppress and in denying his subsequent motion for judgment of acquittal. I would reverse Studemire's conviction.
NOTES
[1] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
[2] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619738/ | 955 So. 2d 535 (2007)
THE FLORIDA BAR, Complainant,
v.
Shelley Goldman MAURICE, Respondent.
No. SC04-700.
Supreme Court of Florida.
April 12, 2007.
*536 John F. Harkness, Jr., Executive Director and Kenneth L. Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Alan Anthony Pascal, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.
Shelley Goldman Maurice, pro se, Boynton Beach, FL, for Respondent.
PER CURIAM.
We review a referee's report regarding alleged ethical breaches by Shelley Goldman Maurice. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings of fact and conclusions as to guilt. We disapprove the recommended discipline of a two-year suspension *537 and impose in its stead a ninety-day suspension.
Factual and Procedural Background
The Florida Bar filed a one-count complaint against Maurice, alleging that Maurice engaged in unethical conduct in administering a probate estate. Maurice admitted several of the factual allegations of the complaint, denied others, and denied violating any of the rules with which she was charged. After a hearing, the referee filed his report with the Court. The referee found that Maurice prepared a quitclaim deed for a client, Helen Spelker, in November 1998, which transferred ownership of her condominium to her son, Gerard Spelker, and her grandson, William Spelker, but reserved to Helen Spelker a life estate in the condominium. The quitclaim deed was duly recorded in the public record, making Gerard and William Spelker vested remaindermen.
Several months later, in August 1999, Maurice prepared a new will for Helen Spelker. The will purported to bequeath the condominium and the rest of her belongings to Gerard and William Spelker, and to William's mother, Pamela Spelker, to be divided equally among them. The will also required the heirs to sell the condominium to Arthur Oliveri (Oliveri), Helen Spelker's neighbor and caretaker, for not less than $38,000.
Helen Spelker died in April 2001, without revoking the quitclaim deed to the condominium. The bulk of her estate was exempt or transferred upon her death, making the opening of an estate unnecessary. The heirs hired Maurice to probate the estate and to handle the proper disposition of the property. Without advising the heirs of the quitclaim deed making Gerard and William Spelker the full owners of the condominium upon Helen Spelker's death or that no estate was necessary, Maurice opened formal estate proceedings. Maurice's judgment regarding the necessity of an estate was clouded by her expressed concern for Helen Spelker's caretakers.
Maurice further advised the heirs that a trust should be created for William Spelker, who was a minor, so that proceeds from the sale of the condominium could be placed in trust. The provision in the will requiring the heirs to establish a trust also named Maurice as trustee. Maurice's actions created a conflict of interest between herself and the heirs and delayed the sale of the condominium.
The referee concluded that Maurice violated Rules Regulating the Florida Bar 4-1.1 (failing to provide competent representation to a client), 4-1.3 (failing to act with reasonable diligence and promptness in representing a client), 4-1.4(a) (failing to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information), 4-1.7(b) (representing a client when the lawyer's exercise of independent professional judgment may be materially limited by the lawyer's responsibilities to another client, to a third person, or the lawyer's own interest), and 4-3.2 (failing to make reasonable efforts to expedite litigation consistent with the interests of the client). These violations were alleged in the Bar's complaint. In addition, the referee found Maurice violated rule 4-8.4(a) (violating or attempting to violate the Rules of Professional Conduct).
The referee did not make any findings as to whether Maurice violated several rules with which she had been charged, specifically rules 4-1.4(b) (failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions), 4-1.5(a) (entering into an agreement for, charging, or collecting an illegal, prohibited, or clearly excessive fee), 4-8.4(c) (engaging in conduct involving dishonesty, *538 fraud, deceit, or misrepresentation), and 4-8.4(d) (engaging in conduct that is prejudicial to the administration of justice). In effect, this is a finding that the Bar failed to present clear and convincing evidence that Maurice violated these rules.
With regard to discipline, the referee found two aggravating factors: (1) vulnerability of the victim and (2) substantial experience in the practice of law. The referee found the sole mitigating factor of absence of a prior disciplinary record. The referee recommended a two-year suspension, proof of completion of continuing legal education (CLE) programs entitled Practicing with Professionalism, Basic Probate and Guardianship, and Ethics Seminar, and reimbursement of the Bar's costs.
Maurice challenges several of the referee's factual findings, conclusions of guilt, and the recommendation of a two-year suspension.
Factual Findings
Maurice takes issue with the referee's finding that she opened probate proceedings when it was unnecessary to do so, that she misrepresented to the heirs the need to open probate proceedings, and that she caused a delay in the closing for the sale of the condominium owned by Gerard and William. She argues that the Bar failed to prove intent and that the record fails to establish intent.
The party contending that the referee's findings of fact are erroneous carries the burden of demonstrating that there is no evidence in the record to support those findings. Fla. Bar v. Carlon, 820 So. 2d 891, 898 (Fla.2002). Maurice testified that she prepared a quitclaim deed for Helen Spelker before she prepared Helen Spelker's will. The quitclaim deed, which was introduced into evidence, transferred ownership of the condominium to Gerard and William Spelker.
Maurice testified that Helen Spelker wanted Gerard and William Spelker to have her condominium and did not want her other son or her daughter to have it or anything else. The quitclaim deed was prepared and filed to transfer ownership of the condominium. The quitclaim deed passed remainder interests in the condominium to Gerard and William Spelker when it was completed.
When Helen Spelker died, her life estate ended and Gerard and William Spelker became full owners of the condominium. Not only was there no need for the condominium to be passed through the estate, passing it through the estate was a nullity. It was no longer Helen Spelker's condominium to bequeath. Because Maurice prepared the quitclaim deed and knew the deed had been recorded and never changed before Helen Spelker's death, she knew it was not an estate asset.
Maurice's justification for treating the condominium as an estate asset was that she wanted to ensure the disinherited children could not challenge Gerard and William Spelker's ownership of the condominium. Maurice testified as follows:
The condominium went through the estate process for protection of creditors because we wanted to make sure that There were two family members that were rather irate that they had not been in the estate, so we were attempting to protect the condominium as homestead property.
And then there was and the will directs that the condominium, except for real estate which is presently put in convenience the name of myself and my son, Eric Spelker and William Spelker, everything else would go by rights of survivorship.[1]
*539 And the bills for the estate which were to be paid out of the sale of the proceeds of the property . . . (inaudible).
So it was our duty to make sure that it went through the estate so it could be sold and protected from claims of creditors.
It is clear that the referee did not accept this explanation. A referee's assessment of a witness's credibility is reviewed for abuse of discretion. Fla. Bar v. Charnock, 661 So. 2d 1207, 1209 (Fla.1995).
At least two other possible reasons exist for Maurice to open probate and treat the condominium as an estate asset (1) to earn fees as the estate's administrator; or (2) to ensure that Oliveri would be given the right of first refusal to buy the condominium from the new owners, Gerard and William Spelker. The referee did not find that Maurice opened probate to generate fees. Nor did he find that Maurice violated rule 4-1.5(a) (prohibiting an attorney from entering into an agreement for, charging, or collecting an illegal, prohibited, or clearly excessive fee).
The second possible motive, to ensure that Oliveri was given the right of first refusal, is supported by the findings. The referee found that Maurice's judgment about the need for an estate "was clouded by her expressed concern for Helen Spelker's caretakers" and that her opening an estate placed her "in conflict with the heirs of the estate who sought her counsel after Helen Spelker passed." He concluded her conduct had violated rule 4-1.7(b) (prohibiting a lawyer from representing a client when the lawyer's exercise of independent professional judgment may be materially limited by the lawyer's responsibilities to another client, a third person, or by the lawyer's own interest).
Here, there were two possible inferences to be drawn about Maurice's motives for opening an estate and including the condominium as an estate asset when she knew the condominium already belonged to Gerard and William Spelker. Either one would have resulted in the violation of at least one of the rules charged. The referee obviously rejected one inference, but found the other. In addition, Maurice's own testimony that she was trying to ensure that Oliveri was given the opportunity to buy the condominium supports the referee's conclusion that her desire conflicted with her duties toward the heirs under the will.
We conclude that competent, substantial evidence supports the referee's findings.
Conclusions of Guilt
Maurice also challenges the referee's conclusions that she violated rules 4-1.1 (competent representation) and 4-1.8 (representing a client with a conflict of interest). "A referee's findings of fact regarding guilt carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record." Fla. Bar v. Brown, 905 So. 2d 76, 80 (Fla.2005) (quoting Fla. Bar v. Wohl, 842 So. 2d 811, 814 (Fla.2003)). "Absent a showing that the referee's findings are clearly erroneous or lacking in evidentiary support, this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee." Fla. Bar v. Wohl, 842 So. 2d 811, 814 (Fla.2003) (quoting Fla. Bar v. Sweeney, 730 So. 2d 1269, 1271 (Fla.1998)).
The referee found that Maurice violated rules 4-1.1, 4-1.3, 4-1.4(a), 4-1.7, 4-3.2, and 4-8.4(a). Significantly, Maurice was neither charged with violating nor did the referee conclude that she violated rule 4-1.8. Maurice may have meant to contest the referee's conclusion that she violated rule 4-1.7.
*540 The evidence and factual findings support the referee's conclusion that Maurice violated rules 4-1.1 and 4-1.7(b). Maurice's belief that the condominium could be treated as an estate asset although it had previously been deeded to Gerard and William Spelker is sufficient to establish a violation of rule 4-1.1. See generally Fla. Bar v. Batista, 846 So. 2d 479 (Fla.2003) (holding that an attorney violated the competence rule by failing to determine the probable outcome in his clients' cases within a reasonable time and failing to communicate the unavailability of a result to his clients). The referee found that probate proceedings were unnecessary, as most of Helen Spelker's property was either exempt or transferred upon her death. Maurice failed to explain this to the heirs. Maurice opened an estate in an attempt to ensure that Oliveri was given the opportunity to purchase the condominium from Gerard and William Spelker. She did not tell Pamela Spelker or her attorney that the ownership of the condominium had been transferred to Gerard and William in November 1998 and she did not provide a copy of the quitclaim deed she had prepared. The referee found that Maurice's judgment regarding the necessity of an estate was clouded by her expressed concern for Helen Spelker's caretakers, one of whom was Oliveri. These actions establish a violation of rule 4-1.7(b) in that her desire to ensure that Gerard and William Spelker gave Oliveri a chance to purchase the condominium conflicted with her duty to her clients, Helen Spelker's heirs.
Maurice has failed to meet her burden of proving that the referee's conclusions that she violated rules 4-1.1 and 4-1.7(b) are clearly erroneous or lacking in evidentiary support. Accordingly, we approve the referee's conclusions of guilt.
Aggravating and Mitigating Factors
Maurice argues that the referee failed to find several mitigating factors, including: (1) no prior disciplinary history;[2] (2) Maurice is a self-starter who put herself through law school while working at a law firm and set up her own practice two years after law school; (3) the complaining party did not pay any money to Maurice and did not lose any during the course of Maurice's representation; (4) she paid the Bar's costs within two weeks of the referee's decision; (5) she completed all required CLE credits during her reporting cycle and has never been in violation of the CLE requirements; (6) she has always taken more CLE than necessary; (7) she has conducted a seminar on real estate transactions; and (8) she is a chairperson and has been a chairperson of the local bar association's real estate committee for the past four years. According to Maurice, the referee also failed to consider the mitigating factor that Maurice made a timely good-faith effort to make restitution or to rectify the consequences and there was no monetary loss to the complaining parties.
The Bar asserts that there is no basis in standard 9.3 of the Florida Standards for Imposing Lawyer Sanctions for the additional mitigating factors that Maurice claims exist and that the referee correctly found that the only mitigating factor extant here is the fact that Maurice has no prior disciplinary record.
A referee's findings of mitigation and aggravation, like other factual findings, carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. Fla. Bar v. Arcia, 848 So. 2d 296 (Fla. 2003).
*541 Some of the factors Maurice identifies could possibly relate to the mitigating factors identified in standard 9.3, as follows: (1) the absence of a dishonest or selfish motive (the complaining party did not pay any money to Maurice and did not lose any during the course of Maurice's representation); (2) a timely good-faith effort to make restitution or to rectify the consequences of misconduct (she paid the Bar's costs within two weeks of the referee's decision; she completed all required CLE credits during her reporting cycle and has never been in violation of the CLE requirements); or (3) character or reputation (Maurice is a self-starter who put herself through law school while working at a law firm and set up her own practice two years after law school; she has always taken more CLE than necessary; she has conducted a seminar on real estate transactions; and she is a chairperson and has been a chairperson of the local bar association's real estate committee for the past four years).
Maurice does not expressly tie these facts to any of the mitigating factors. Even if these "facts" are interpreted as relating to the mitigating factors identified above, Maurice has failed to demonstrate that the referee's failure to find that these mitigating factors applied in this case was clearly erroneous or without support in the record. We therefore approve the referee's findings regarding aggravating and mitigating factors.
Recommended Sanction
The referee recommended a two-year suspension, various courses of continuing legal education offered by the Bar, and payment of the Bar's costs. Maurice argues that the recommendation of a two-year suspension is not supported by caselaw or the standards. We agree and disapprove that recommendation.
The Court's scope of review in reviewing a referee's recommendation of discipline is broader than that afforded to the referee's findings of fact because it is ultimately the Court's responsibility to order the appropriate sanction. Fla. Bar v. Miller, 863 So. 2d 231, 235 (Fla.2003); Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art. V, 15, Fla. Const. Generally, however, we will not second-guess the referee's recommended discipline as long as it has a reasonable basis in existing caselaw and the Florida Standards for Imposing Lawyer Sanctions. Fla. Bar v. Brown, 905 So. 2d 76, 83-84 (Fla.2005); Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla.1999).
The referee cited no standards to support his recommendation of a suspension in this case, but some standards do apply. See Fla. Stds. Imposing Law. Sancs. 4.12 (suspension is appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury); 4.42 (suspension is appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury or when a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury); 4.52 (suspension is appropriate when a lawyer engages in an area of practice in which the lawyer knowingly lacks competence, and causes injury or potential injury to a client); 4.62 (suspension is appropriate when a lawyer knowingly deceives a client and causes injury or potential injury).
As the standards do not suggest the appropriate length of a suspension, the Court examines caselaw to determine whether the referee's recommendation of a two-year suspension has a reasonable basis. The referee did not cite to any cases in support of his recommendation. The *542 cases cited by the Bar in its brief, Florida Bar v. Cimbler, 840 So. 2d 955 (Fla.2002); Florida Bar v. Jordan, 705 So. 2d 1387 (Fla.1998); and Florida Bar v. Theed, 246 So. 2d 745 (Fla.1971), support suspension as the appropriate sanction, but also demonstrate that a two-year suspension is too harsh.
In Cimbler, we suspended an attorney for one year, followed by three years' probation, for neglecting to perform post-closing activities for a real estate transaction, failing to attend a hearing in a suit for specific performance, failing to notify his clients of their depositions, and other instances of neglect in three different cases. The referee found three aggravating factors: prior discipline for similar misconduct (ninety-day suspension and three years' probation); multiple offenses; and indifference to restitution as to a specific client. The referee found six mitigating factors: timely and good-faith efforts to make restitution or to rectify the consequences of her misconduct; full and free disclosure in the disciplinary proceedings; reputation for good character; physical or mental disability; interim rehabilitation; and remorse.
In Jordan, we suspended the attorney for one year for failing to file an amended complaint within the twenty-day deadline in a civil suit; failing to return numerous phone calls from his co-counsel and his client; failing to respond to a show cause order from the trial court as to why the suit should not be dismissed for lack of prosecution, which resulted in the suit's dismissal; failing to advise his co-counsel or his client of the suit's dismissal; failing to seek reinstatement of the suit; and failing to advise his client to seek independent legal representation before attempting to negotiate with her to privately settle any claim she might have had against him for legal malpractice. The attorney had been previously disciplined four times, the fourth resulting in a ninety-one-day suspension. The last three of the four prior discipline cases resulted from similar misconduct.
In Theed, we suspended an attorney for one year for improperly handling the assets of an estate, including using estate funds for his own personal use; failing to administer the estate properly; failing to account to the parties whom he represented, ignoring their request for information, ignoring the request of their attorney, and failing to act properly in all respects as an attorney and executor. The attorney had repaid the estate, before the imposition of discipline, for the estate funds he had used.
The misconduct of the attorneys in these three cases was similar, but more egregious than Maurice's. Maurice has been a member of the Bar for over two decades and has no prior discipline. Maurice's actions resulted in the heirs and true owners of the condominium having to wait several months to obtain what was rightfully theirs, but she did not profit from it.[3] Rather, she seems to have been motivated by a genuine but misguided desire to fulfill what she believed were Helen Spelker's true wishes for the disposition of her property. According to her brief, she has already reimbursed the Bar for its costs and has already taken the CLE courses recommended by the referee.
Accordingly, based on the caselaw discussed above imposing one-year suspensions for more egregious misconduct of a repetitive nature, we conclude that the *543 two-year suspension recommended by the referee is not reasonably supported by the caselaw. We disapprove that recommendation and instead suspend Maurice for ninety days. The other conditions recommended by the referee are approved.
Conclusion
Based on the foregoing, we approve the referee's factual findings and conclusions as to guilt, but disapprove the referee's recommended sanction of a two-year suspension. We approve the other recommended conditions concerning continuing legal education and reimbursement of the Bar's costs.
Shelley Goldman Maurice is hereby suspended from the practice of law for ninety days. The suspension will be effective thirty days from the filing of this opinion so that Maurice can close out her practice and protect the interests of existing clients. If Maurice notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Maurice shall accept no new business from the date this opinion is filed until her suspension is completed.
Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida XXXXX-XXXX, for recovery of costs from Shelley Goldman Maurice in the amount of $1,399.00, for which sum let execution issue.
It is so ordered.
WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.
LEWIS, C.J., concurs in result only.
NOTES
[1] Eric is Gerard Spelker's middle name.
[2] Despite Maurice's argument, the referee did find this mitigating factor.
[3] The Bar's complaint alleged Maurice violated rule 4-1.5(a) (entering into an agreement for, charging, or collecting an illegal, prohibited, or clearly excessive fee), but the referee did not find a rule 4-1.5(a) violation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619749/ | 955 So. 2d 161 (2007)
Kitty JAMISON
v.
Joseph D'AMICO, III.
No. 2006-CA-0842.
Court of Appeal of Louisiana, Fourth Circuit.
March 14, 2007.
*162 Michael A. Fenasci, Fenasci & Associates, New Orleans, LA, for Plaintiff/Appellant.
Brian C. Bossier, Tara Nunez Smith, Erin H. Boyd, Blue Williams, L.L.P., Metairie, LA, for Defendant/Appellee.
(Court composed of Judge CHARLES R. JONES, Judge, TERRI F. LOVE, Judge, ROLAND L. BELSOME).
TERRI F. LOVE, Judge.
Kitty Jamison appeals the district court's granting of a motion for summary judgment that was filed on behalf of Joseph D'Amico, III and the granting of an exception of no cause of action filed on behalf of Louisiana Steam Equipment Company, Inc. There exist no genuine issues of material fact, and defendants are therefore entitled to judgment as a matter of law. Also, allegations in the appellant's petition, specifically the allegation that LSEC was "improperly delegated" certain duties by Mr. D'Amico, were insufficient to state a cause of action. Therefore, the district court correctly granted the motion for summary judgment and the exception of no cause of action. We affirm the decision of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
While working in a building located at 1701 Tchoupitoulas Street in New Orleans, *163 Louisiana, the appellant, Kitty Jamison (hereinafter "appellant" or "Ms. Jamison") was walking in the storage area of the premises, when the floor collapsed beneath her. As a result of that accident, she sustained injuries.
At the time of the accident, Ms. Jamison was employed by Tchoupitoulas Street Wharf, Inc., d/b/a Marine Medical Unit. The premises had been leased to Mr. J. Carlyle Smith (Lessee) by Joseph D'Amico, III (Lessor/Appellee) (hereinafter "appellee" or "Mr. D'Amico"). The lease expired on or about September 30, 1998, and no formal provision for the reconduction of the lease terms existed at that time.
The district court heard a motion for summary judgment filed on behalf of Mr. D'Amico and an exception of no cause of action filed on behalf of Louisiana Steam Equipment Company (hereinafter "LSEC"). The district court granted appellee's motion for summary judgment and LSEC's exception of no cause of action. Thereafter, this appeal was lodged.
STANDARD OF REVIEW
A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed "to secure the just, speedy, and inexpensive determination of every action." La.Code Civ.P. art. 966(A)(2).
Appellate courts are to review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Champagne v. Ward, 03-3211, p. 4 (La.1/19/05), 893 So. 2d 773, 776. The mover bears the initial burden of proof to show that no genuine issue of material fact exists. Id. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party's claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the nonmoving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.
In Southern Tool Supply, Inc. v. Beerman Precision, Inc., this Court recited the standard of review for a trial court's decision of an exception of no cause of action as follows:
We review a trial court's decision on an exception of no cause of action de novo "because the exception raises a question of law and the lower court's decision is based only on the sufficiency of the petition." City of New Orleans v. Board of Comm'rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So. 2d 237, 253. In so doing, we are confined to the allegations of the petition. No evidence can be introduced to support or to controvert an exception of no cause of action. La. C.C.P. art. 931. Rather, we must accept as true the well pleaded factual allegations set forth in the petition. Based thereon, our job is to determine "whether, on the face of the petition, the plaintiff is legally entitled to the relief sought." Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So. 2d 1234, 1235 (La. 1993).
03-0960, p. 6 (La.App. 4 Cir. 11/26/03), 862 So. 2d 271, 277.
MOTION FOR SUMMARY JUDGMENT
The appellant assigns error to the district court granting the appellee's motion *164 for summary judgment. The appellant argues that there was a genuine issue of material fact based on the pleadings, depositions, admissions, affidavits and documents presented. However, the appellee submitted evidence sufficient to negate an essential element of the appellant's claim, i.e., knowledge of the condition of the defective floor, and the appellant failed to produce factual support sufficient to establish that she could meet her burden of proof at trial. We find that there are no depositions, affidavits, admissions, or answers to interrogatories on file that show that Mr. D'Amico had knowledge or should have had knowledge of the defective condition of the floor in the subject building.
In determining whether the trial court erred in granting Mr. D'Amico's motion for summary judgment, we must discern whether genuine issues of material fact exist. King v. Dialysis Clinic Inc., 04-2116, p. 5 (La.App. 4 Cir. 1/4/06), 923 So. 2d 177, 180. "A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of a legal dispute." Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So. 2d 764, 765. An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts establishing that there is a genuine issue of material fact for trial. La.Code Civ.P. art. 967(B).
The basis of Mr. D'Amico's motion for summary judgment was that there was no genuine issue of material fact as to whether Mr. D'Amico knew or should have known of the allegedly defective condition of the flooring. Ms. Jamison asserts that the law imposes a duty upon the owner of the building to conduct inspections and imposes a more expansive burden of inspection upon the owner's insurance carriers.
Failure to Inspect
The appellant alleges that Mr. D'Amico was liable for failing to inspect the premises and failing to make necessary repairs. In Vincent v. Berestitzky, Vincent, a worker, was injured when he fell through the skylight on the roof of a building owned by Berestitzky. 94-2429 (La. App. 4 Cir.3/29/95), 653 So. 2d 1251, 1253. Part of the building was leased from Mr. Berestitzky by Cooter Brown's, Inc., and Vincent sued Berestitzky, Cooter Brown's and their respective insurers for injuries he sustained as a result of his fall. Id. This Court found that there was no reason to believe that Berestitzky had knowledge of the defect where there was neither evidence nor testimony to support that claim. Vincent, 94-2429, 653 So.2d at 1254. Without knowledge of any defect, Berestitzky's failure to warn did not amount to negligence. Id.
Also, in Chau v. Takee Outee Bourbon, Inc., the plaintiff-appellant was a tenant's employee who was injured on the job when a portion of a building's ceiling collapsed onto her. 97-1166, p. 1 (La.App. 4 Cir. 2/11/98), 707 So. 2d 495, 496. She brought a premises liability action against absentee co-owners and others. Id. The appellee was dismissed from the case, upon a motion for summary judgment, based upon La. R.S. 9:3221 and a clause in the lease which shifted responsibility for the condition of the building to the lessee. Id. The key issue was whether the appellee "should have known" of the alleged defect in the building, and this Court found no genuine issue of material fact as to this issue and that the appellee, an absentee co-owner who was not at all involved in the management of the building, and should not have known of the alleged defect in the building. Chau, 97-1166, p. 3-4, 707 So.2d *165 at 496-97. This Court stated that imposing such a duty to inspect would all but completely deny the co-owner the relief granted to her by La. R.S. 9:3221. Chau, 97-1166, p. 6, 707 So.2d at 498.
Therefore, as in Chau, the legislative purpose should not be frustrated. Id. We find that Mr. D'Amico was under no duty to inspect the premises and, as a consequence, there is no basis to conclude that he should have known of the defect in the flooring in the premises.
Knowledge of the Defective Condition
The appellant also argues that Mr. D'Amico knew or should have known of the allegedly defective condition of the flooring. We disagree. Here, while the lease included a provision whereby the lessor took over responsibility for the conditions of the roof in question, the appellant failed to present legally sufficient evidence to establish knowledge on the part of Mr. D'Amico of the defective floor. Specifically, the evidence introduced by the appellant purports to show knowledge of the defect, but all of this evidence pertains to roof leaks and fails to establish that Mr. D'Amico knew or should have known that the supply room floor was defective.
In Jones v. Gatusso, a store clerk filed a negligence suit against the landlord of a building in which she worked, and its insurer, alleging that the building's floor, on which the clerk fell and injured herself, was defective. 00-1654 (La.App. 5 Cir. 2/14/01), 782 So. 2d 11, 12. In Jones, the owner of the building moved for summary judgment on the grounds that he had no knowledge of the alleged defective condition. Id. Using La.Rev.Stat. 9:3221 in the analysis, the court held that the store clerk's employer agreed as a tenant of the building to keep its interior, including the floors, in good condition, even if the defective condition of the floor existed from the time the building was constructed, and thus, the tenant assumed liability for the building's defects, unless owner knew or should have known of defect or had received notice thereof and failed to remedy it within reasonable time. Id., 00-1654, 782 So.2d at 13-14.
In the instant case, Mr. D'Amico executed an affidavit and offered deposition testimony, which established that he did not frequent the building. The appellee also established that he did not talk to the tenant and/or the Marine Medical Unit employees. Mr. D'Amico had not visited the building since four months prior to the accident. Also, J. Carlyle Smith testified that prior to the plaintiff's accident, he had not observed or taken a report from anyone that there were any weak spots in the floor of the supply room where the accident occurred. Therefore, considering the law, evidence and testimony presented in the instant case, we find that the appellant failed to establish knowledge of the condition of the floor, and failed to produce factual support sufficient to establish that she could meet her burden of proof at trial.
RECONDUCTION
The appellant argues that there was no lessor-lessee relationship in existence at the time of the accident because the lease expired on or about September 30, 1998. Governor Claiborne Apartments, Inc. v. Attaldo, expresses the law relative to occupancy of leased premises after the lease expires as follows: "Under our Civil Code provisions based on these articles of the Code Napoleon, legal reconduction takes place when a fixed-term lease expires and the lessee without opposition continues to occupy the premises for more than a week." 256 La. 218, 223-24, 235 So. 2d 574, 576 (1970), "The reconducted lease is actually a continuation of the lease under the same terms and conditions except that the fixed term or period of *166 duration in the old lease is voided and the reconducted lease is considered to be by the month." Id. In Governor, the Louisiana Supreme Court also provided that "[c]ontracts are not presumed, and therefore the option or right to renew a lease is never presumed and that the civil law has expressly recognized that occupancy of premises by a lessee after the expiration of a fixed-term lease constitutes reconduction. . . ." Id. Given that, while there was no written reconduction of the lease after September 30, 1998, J. Carlyle Smith continued to occupy the building and pay rent for several months thereafter. We find that under these particular circumstances, the lease was reconducted.
With that, we move to the appellant's argument that the district court's use of La.Rev.Stat. 9:3221 to grant immunity from suit was improper because of the contention that the lease was not reconducted. A decision as to the propriety of granting the motion must be made with reference to the substantive law applicable to the case. Mohsan v. Roule-Graham, 05-122 (La.App. 5 Cir. 6/28/05), 907 So. 2d 804, 806, writ denied, 05-1976 (La.2/3/06), 922 So. 2d 1184. Additionally, La.Rev.Stat. 9:3221 provides that "the owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time". Slaughter v. Coleman, 490 So. 2d 570, 571 (La.App. 4 Cir.1986). The statute "was undoubtedly designed to relieve the owner of some of the burdens imposed upon him by law in cases where he had given dominion or control of his premises to a tenant under a lease." Id. To establish liability on the part of a lessor who has passed on responsibility for the condition of his property to his lessee under La.Rev.Stat. 9:3221, a plaintiff must establish that (1) he sustained damages; (2) there was a defect in the property; and (3) the lessor knew or should have known of the defect. Smith v. French Market Corp., 03-1412, p. 5 (La. App. 4 Cir. 10/6/04), 886 So. 2d 527, 530, citing Robinson v. Archdiocese of New Orleans, 98-1238, p. 4 (La.App. 4 Cir. 3/31/99), 731 So. 2d 979, 981.
La.Rev.Stat. 9:3221 was appropriately applied in the instant case. The lease was reconducted and a lessor/lessee arrangement was in place here. We find that because the lease was reconducted and the appellant failed to prove the existence of a genuine issue of material fact, the district court was correct in dismissing claims against Mr. D'Amico.
EXCEPTION OF NO CAUSE OF ACTION
The appellant assigns error to the district court's dismissal claims against LSEC, thereby sustaining LSEC's exception of no cause of action. The basis of the exception of no cause of action was that the allegations in the appellant's petition, specifically that LSEC was "improperly delegated" certain duties by Mr. D'Amico, were insufficient to state a cause of action; LSEC argued that there were no allegations of negligence nor any allegations of any actions or inactions on the part of LSEC. The appellant argues that the district court was incorrect in granting the exception, because LSEC undertook all responsibilities and functions to maintain the offending property and conduct necessary repairs, given to it by the owner, Mr. D'Amico.
The purpose of an exception of no cause of action is to test the sufficiency of the petition, questioning whether the *167 plaintiff's allegations, if taken as true, afford him a remedy at law. Johnson v. T.L. James & Co., 93-1170, p. 3 (La.App. 1 Cir. 4/8/94), 635 So. 2d 744, 745. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Industrial Cos., Inc. v. Durbin, 02-0665, p. 7 (La.1/28/03), 837 So. 2d 1207, 1213; Barrie v. V.P. Exterminators, Inc., 625 So. 2d 1007, 1018 (La.1993).
In the instant case, the appellant failed to establish under the factual allegations of the petition that the law extends a remedy to her against Mr. D'Amico. LSEC carried out the maintenance, repair and reconstruction project of the subject building. While the appellant alleged that LSEC was "improperly delegated" the duty to inspect, maintain, and supervise the building in question, this does not amount to the statement of a claim of negligence on the part of LSEC. Accordingly, we hold that the district court properly granted the exception of no cause of action, dismissing claims against LSEC.
DECREE
Accordingly, we conclude that the motion for summary judgment was properly granted and that the district court correctly sustained the exception of no cause of action. The judgment of the trial court is therefore affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619866/ | 762 F.Supp. 465 (1991)
UNITED STATES of America, Plaintiff,
v.
Rafael A. VALLADARES-TESIS, Defendant.
Civ. No. 89-1268 (JP).
Crim. No. 89-050 (JP).
United States District Court, D. Puerto Rico.
March 30, 1991.
José R. Gaztambide, Asst. U.S. Atty., Hato Rey, P.R., for plaintiff.
Rafael A. Valladares-Tesis, pro se.
OPINION AND ORDER
PIERAS, District Judge.
The petitioner has filed a petition for habeas corpus based on the grounds that the magistrate conducted voir dire and selected the jury for defendant's felony trial. For the reasons stated below, we deny this petition.
I. BRIEF PROCEDURAL HISTORY
The petitioner/defendant Rafael A. Valladares-Tesis was tried by jury on April 6, 1988, in a five count indictment alleging that defendant, along with the several codefendants, all aiding and abetting each other, illegally imported, possessed on board an aircraft with an intention to distribute, approximately 16.2 kilograms of cocaine. The indictment further charged the defendant and the other codefendants, aiding and abetting each other, with willfully and falsely assuming or pretending to be an officer or employee acting under authority of the United States, as a sergeant in the U.S. Army. The final count of the indictment charged defendant with willfully making the false representation of his name in a baggage declaration given to a U.S. Customs Inspector. On April 7, 1988, the jury found defendant guilty as to all five counts in the indictment, and the defendant was sentenced on July 5, 1988. Petitioner filed a motion requesting reduction of sentence pursuant to Federal Rule of Criminal Procedure 35(b), which was denied. Defendant did not appeal that order.
In April of 1989, the defendant filed a petition for habeas corpus under 28 U.S.C. § 2255, based on the contention that he was improperly sentenced under the Sentencing Guidelines. This petition was denied. Finally, in September of 1989, defendant filed another petition stating that the magistrate conducted voir dire and selected the jury for defendant's felony trial, in violation of the Supreme Court's ruling in the case of Gómez.
II. DISCUSSION
This Court withheld final decision of the petitioner's writ of habeas corpus pending the Supreme Court's decision in United States v. France, 886 F.2d 223 (9th Cir. 1989), cert. granted, ___ U.S. ___, 110 S.Ct. 1921, 109 L.Ed.2d 285 (1990). On January 21, 1991, the Supreme Court affirmed the judgment of the United States Court of Appeals for the Ninth Circuit in United States v. France. ___ U.S. ___, 111 S.Ct. 805, 112 L.Ed.2d 836. The Court *466 summarily affirmed the judgment of the Ninth Circuit "by an equally divided Court," without further comment. ___ U.S. ___, 111 S.Ct. 805. We note that this type of affirmance is not entitled to precedential weight, and its legal effect is similar to the dismissal of an appeal; such an affirmance demonstrates that "the cause is finally disposed of in conformity with the action of the court below, and that ... [the] court can proceed to enforce its judgment." Neil v. Biggers, 409 U.S. 188, 192, 93 S.Ct. 375, 378, 34 L.Ed.2d 401, 407 (1972). Notwithstanding the nature of the Supreme Court's decision in France, we proceed to rule on petitioner's request because we conclude that the rule announced in Gómez and modified by France would be not retroactively applied in the instant case since it does not fall within the exceptions to the general rule barring retroactive application of new constitutional rules of criminal procedure in collateral review of a conviction.
In Gómez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Supreme Court held that it was reversible error for federal magistrates to conduct jury selection in felony trials. The Court's decision was based on a construction of the Federal Magistrates Act, 28 U.S.C. § 636(b)(3), which permits district courts to assign magistrates certain described powers and duties, as well as "such additional duties as are not inconsistent with the Constitution and laws of the United States." Essentially, the Supreme Court reasoned that the statute's failure to make specific reference to jury selection, as well as the legislative history, revealed that Congress did not intend to include this function within the additional duties clause of the Magistrates Act. Id., at 875, 109 S.Ct. at 2247, 104 L.Ed.2d at 939.
The Ninth Circuit, in United States v. France, 886 F.2d 223 (1989), decided two issues which were not addressed by the Gómez court. First, the Gómez prohibition retroactively applies to all cases that are pending on direct review or are not yet final.[1]Id. at 227. The court further held that a defendant did not waive her right to object to the magistrate performing voir dire since any objection would have been futile under the authority of circuit law applicable at the time magistrate selected the jury, which permitted magistrates to empanel the jury. Id. at 228.
The First Circuit, en banc, had agreed with France in applying Gómez even when the defendant had failed to object to the magistrate's empanelment of the jury. United States v. Martínez-Torres, 912 F.2d 1552 (1st Cir.1990) (en banc). The Court's reasoning paralleled the reasoning in France, in that it pointed out that objections to the procedure would have been futile because jury empanelment was an established practice, explicitly authorized by the District of Puerto Rico Local Rules, and the First Circuit had "clearly endorsed" the practice. Id. at 1554. In a related case, the First Circuit also held that the Gómez decision applied retroactively to all cases pending on direct appeal, and alluded to the different set of considerations implicated in cases arising on collateral review. United States v. López-Pena [sic], 912 F.2d 1542, 1545 n. 3 (1st Cir. 1989).[2]
*467 The issue of retroactivity in cases on collateral review was addressed by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In that case, the petitioner, a black defendant, challenged his conviction by an all white Illinois jury after the prosecutor used his peremptory challenges to eliminate all blacks from the jury. The defendant's petition under 28 U.S.C. § 2254 requested the Court to adopt a new constitutional rule of criminal procedure by extending the sixth amendment's fair cross-section requirement to petit juries. The Supreme Court, in a plurality decision, declined to address petitioner's request because it concluded that a new constitutional rule of criminal procedure would not be retroactively applied on collateral review of convictions unless: 1) the new rule "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," id., at 290, 109 S.Ct. at 1075, 103 L.Ed.2d at 356 (quotation omitted); or 2) the new rule requires the observance of "those procedures that ... are implicit in the concept of ordered liberty," id., at 290, 109 S.Ct. at 1075, 103 L.Ed.2d at 356 (quoting Harlan, J., in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971)). The Court modified the scope of the application of the second exception to encompass "those new procedures without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 313, 109 S.Ct. at 1076-77, 103 L.Ed.2d at 358. In adopting this approach, the Court emphasized the importance of comity, finality of a conviction, equality of treatment for those similarly situated, and avoidance of constitutional adjudication. Id. at 311-16, 109 S.Ct. at 1075-78, 103 L.Ed.2d at 356-60.
In a later decision, a majority of the Court reiterated the general principle barring retroactive application of a new rule of criminal procedure in a collateral proceeding, and elaborated on the second exception to this rule as discussed in Teague. It stated that the new "watershed" rule of criminal procedure must implicate the fundamental fairness and accuracy of the petitioner's conviction in order to be applied retroactively in collateral proceedings. Saffle v. Parks, 494 U.S. 484, ___, 110 S.Ct. 1257, 1263-64, 108 L.Ed.2d 415, 428-29 (1990). See also Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990) (majority of Court endorsing Teague approach).
We note that Teague involved a habeas corpus proceeding under 28 U.S.C. § 2254, and a new constitutional rule of criminal procedure, whereas the instant case, a petition filed under 28 U.S.C. § 2255, involves the Gómez decision, a new rule of criminal procedure based on construction of a statute, rather than constitutional interpretation. However, the same considerations discussed in Teague, such as the importance of the finality of a conviction, and the equality of the treatment for those similarly situated, are present in this case. Moreover, the Teague rule, if applied to alleged constitutional violations, must, a fortiori apply to violations of a statute; therefore, we apply the Teague rule of retroactivity to the instant case. See Hrubec v. United States, 734 F.Supp. 60, 64-65 (E.D.N.Y. 1990); United States v. Rubio, 722 F.Supp. 77, 85 (D.Del.1989), aff'd without op., 908 F.2d 965 (3d Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990).
The rule pronounced in Gómez does not fall within either of the two Teague exceptions to the general principle prohibiting retroactive application of a new constitutional rule of criminal procedure in collateral review of a conviction. Gómez concluded that magistrates were not authorized by statute to preside over the voir dire of juries without defendants' consent. France and Martínez-Torres further held that failure to object to the magistrate empanelment does not constitute waiver of the issue. These holdings do not affect the government's power to proscribe the private *468 conduct for which Mr. Valladares was convicted trafficking in drugs, falsely pretending to be an officer of the United States Army, and falsely representing his name in a United States Customs Air Baggage Declaration form. Grassi v. United States, 742 F.Supp. 1141, 1142 (S.D.Fla. 1990); Hrubec, 734 F.Supp. at 66. Further, if the use of the peremptory challenges to strike jurors of the same race as defendant did not affect the accuracy of the conviction in Teague, it logically follows that empanelment of a jury by a neutral, detached, competent federal magistrate would not implicate the "fundamental fairness" and accuracy of conviction contemplated by the Court in Teague and its progeny. Rubio, 722 F.Supp. at 85. Therefore, we conclude that Gómez should not be retroactively applied in this § 2255 proceeding.
Wherefore, in view of the foregoing, petitioner's request for relief under 28 U.S.C. § 2255 is DENIED, and the petition is DISMISSED.
IT IS SO ORDERED.
NOTES
[1] The court noted that a case is "final" if the conviction has been rendered, availability of appeal has been exhausted, and the time for petition for certiorari has elapsed or petition for certiorari has been denied. Id. at 227 (quoting Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987)).
[2] In United States v. López-Pena, 912 F.2d 1536 (1989), 912 F.2d 1542 (1989), the defendants-appellants were convicted for drug offenses by a magistrate-empaneled jury pursuant to a local rule of the District Court of Puerto Rico. Defendants did not object and eventually appealed the case without raising the issue of jury empanelment. The appeals were argued before a panel and the issue was never raised until after the Supreme Court's Gómez decision. After Gómez, the defendants moved for a remand for vacation of their convictions. The convictions were affirmed, United States v. López-Pena, 912 F.2d 1536 (1989), and their motions to remand were denied, 912 F.2d 1542. Three of the six defendants petitioned for en banc review of the denial of the remand, which the First Circuit granted. These three defendants' convictions were subsequently reversed in United States v. Martínez-Torres, 912 F.2d 1552 (1990). However, on February 7, 1991, the First Circuit Court of Appeals stayed issuance of the mandate in the Martínez-Torres case pending the Supreme Court's decision in similar case from the Third Circuit. As stated earlier, we proceed to rule on the petitioner's request because we conclude that Gómez would not be applied retroactively in this case, which is a collateral review of a conviction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620421/ | 294 S.W.2d 467 (1956)
F. H. SEYDLER et al., Appellants,
v.
Erna Strobel BAUMGARTEN et al., Appellees.
No. 13000.
Court of Civil Appeals of Texas, Galveston.
September 20, 1956.
Rehearing Denied October 11, 1956.
*468 Harry D. Larson, Eagle Lake, for appellants.
Hodges, Moore & Gates and Otto Moore, Jr., Columbus, Earl A. Brown, Chas. B. Wallace, and R. T. Wilkinson, Jr., Dallas, for appellees.
GANNON, Justice.
This is a plenary or independent suit originally brought in the county court of Colorado County under the provisions of Articles 5534, 3433 and 3434, V.A.T.S., Probate Code, arts. 93, 11, 33, to set aside the probate of an instrument dated May 26, 1938, previously established by judgment of that court as the last will of George Seydler, deceased. Plaintiffs joined with their suit to set aside the probate of the instrument of May 26, 1938, an application to probate a later instrument dated June 8, 1938. On appeal to the district court, at a trial before the court without a jury, all relief prayed for by plaintiffs and applicants was denied, and they appeal to this Court.
The plaintiffs are F. H. Seydler, Maurice Seydler and Richard Seydler. The defendants are Erna Strobel Baumgarten, a widow, who is sued individually and in her capacity as guardian of Myrna Loy Baumgarten, the minor Myrna Loy Baumgarten being alleged to be the sole heir of Victor Baumgarten, deceased, and others, including Magnolia Petroleum Company, who, it is alleged, assert an interest in property belonging to the estate of the decedent.
The case was tried in the District Court on an agreed statement "constituting all the facts involved." From this statement, *469 which incorporates the testimony of the witnesses in narrative form, the following appears:
1. The cause was properly and regularly before the District Court on appeal from the judgment of the County Court.
2. On January 5, 1955, Erna Strobel Baumgarten made application to the County Court of Colorado County to probate a muniment of title an instrument dated May 26, 1938, as the last will and testament of George Seydler, deceased.
3. The instrument dated May 26, 1938, is a will of George Seydler, deceased. It recites that at the time of its execution George Seydler was a single man. By this will there is bequeathed to a sister and brother of decedent $1 each, all the rest and residue of the estate, after payment of debts and funeral expenses, being devised and bequeathed to Erna Strobel Baumgarten, a niece, and to Victor Baumgarten, her husband, a nephew by marriage.
4. After due notice and citation, the application to probate was heard and granted and the instrument of May 26, 1938, was admitted to probate as a muniment of title by order dated January 17, 1955.
One of the attesting witnesses, W. R. Keuper, appeared at the hearing in the County Court and proved the execution of the instrument dated May 26, 1938. The agreed statement makes reference to Keuper's testimony in the County Court and it appears in the transcript as a part of the papers in the District Court. This testimony is in the usual short form of "Proof of Will" and contains the following relating to nonrevocation as the testimony of this witness given at the hearing on January 17, 1955: "Said George Seydler died without having revoked said last will and testament."
5. On March 25, 1955, plaintiffs filed this independent suit in the County Court of Colorado County to set aside the probate of the instrument of May 26, 1938, and joined therewith an application to probate as the last will and testament of the decedent, but as a muniment of title only, an instrument dated June 8, 1938. The sole ground of plaintiffs' independent suit to set aside the probate of the instrument of May 26, 1938, was that this instrument was not the last will and testament of the decedent because it was revoked by a later valid will, to wit: the instrument of June 8, 1938.
The instrument of June 8, 1938, in full, is as follows:
"The State of Texas |
}
"County of Wharton |
"Know all men by these presents, that I, George Seydler, of the County of Wharton, and State of Texas, being in good health, and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all wills by me at any time hereto-fore made. (Emphasis supplied.)
"First: I direct that my just debts shall be paid, and that the legacies hereinafter given shall, after the payment of my debts, be paid out of my estate.
"Second: I give all my real and personal property to my nephews as follows: F. H. Seydlerone-third, (1/3), Maurice Seydler one-third (1/3) and Richard Seydler one-third (1/3).
"Third: I hereby constiture and appoint John I Marik sole executor of this my will without bond.
"In witness whereof I have hereunto set my hand this the 8th day of June, A.D., 1938, in the presence of L. G. Lavendusky and Roy H. McConnaghy who attest the same at my request.
(Signed) George Seydler
"The above instrument was now here subscribed by George Seydler, the testator, *470 in our presence, and we, at his request, and in his presence, sign our names, hereto as attesting witnesses:
(Signed) L. G. Lavendusky
(Signed) Roy H. McConnaghy"
6. The plaintiffs' witnesses, L. G. Lavendusky, Roy H. McConnaghy and John D. Marik, testified by deposition taken in the counties of their respective domiciles. Their testimony appears in the agreed statement in narrative form, as follows:
L. G. Lavendusky
"* * * That he now resided at Temple in Bell County, Texas, and had resided there since November, 1939. That on June 8, 1938, he resided at East Bernard in Fort Bend County, Texas, where he had lived until he moved to Temple. He was over fourteen years of age in 1938. That he knew George Seydler in June, 1938, and would judge Seydler to be in his seventies at that time. That Seydler appeared to be of sound mind at that time. That after inspecting the original of the instrument dated June 8, 1938, and purporting to bear the signatures of George Seydler, L. G. Lavendusky and Roy H. McConnaghy, he could and did identify the signature of L. G. Lavendusky as being his own signature. That he did not recall ever having seen the instrument before and that he could not remember signing the same. He could not identify the signatures of any other person on the instrument."
Roy H. McConnaghy
"* * * That he now resided at East Bernard in Fort Bend County, Texas, and had lived there since 1911. That on June 8, 1938, he was 46 years of age. That he had formerly known a George Seydler who used to run a store in East Bernard, but that he did not know whether said George Seydler was living or dead on June 8, 1938. That the last time he saw George Seydler was when Seydler came down from Schulenburg and he and Seydler had some drinks at Old Dutch's and Seydler passed out. That after inspecting the original of the instrument dated June 8, 1938, and purporting to bear the signatures of George Seydler, L. G. Lavendusky and Roy H. McConnaghy, he could and did identify the signature of Roy H. McConnaghy as being his own signature. That he did not recall ever having seen the instrument before and that he could not remember signing the same. He could not identify the signatures of any other person on the instrument."
John I. Marik
"That he now resided at East Bernard in Fort Bend County, Texas, and had lived there, or near there, for all of his life, 55 years. That he was now Justice of the Peace, City Tax Collector, and engaged in the insurance business, and had formerly been School Tax Collector also. That for about twenty years prior to 1935 he worked as a bookkeeper for J. G. Leveridge Company at East Bernard, in the lumber, feed and grocery business. That he knew George Seydler first in about 1925 to 1928. That George Seydler was approximately 70 to 72 years of age in 1938. That while working for the Leveridge Company he had occasion to see Seydler write his name and was familiar with his signature. That after inspecting the original of the instrument dated June 8, 1938, and purporting to bear the signatures of George Seydler, L. G. Lavendusky and Roy H. McConnaghy, he could and did identify all three signatures as being their own signatures. That he did not see either George Seydler, L. G. Lavendusky or Roy H. McConnaghy sign the instrument dated June 8, 1938 and shown to him."
Testimony of the witnesses, Agnes Myree Seydler, Isabelle Cardenes and F. H. Seydler was included in the agreed statement in narrative form as the same was given in the County Court, as follows:
*471 Agnes Myree Seydler
"That she was the wife of F. H. Seydler, one of the plaintiffs, and resided with her husband at 826 Eastland, Houston, Texas, where they had lived for approximately 24 to 25 years. That she knew George Seydler for about 30 years. That he visited in her home on several occasions and that she had seen him write his name and could identify his signature. After being shown the instrument dated June 8, 1938, she could identify the signature `George Seydler', subscribed to such instrument, as the signature of George Seydler, now deceased, who was the uncle of her husband, F. H. Seydler."
Isabelle Cardenes
"That she was formerly Isabelle Seydler and that George Seydler was her uncle. That she was now 50 years of age and knew George Seydler in June of 1938, and that he was over 21 years of age at that time. That he visited in her hom in 1938 and he was of sound mind at that time. That she had seen him write his name on different occasions and could identify his signature. After being shown the instrument dated June 8, 1938, she could and did identify the signature `George Seydler,' subscribed to such instrument, as the signature of George Seydler, now deceased, who was the uncle of Isabelle Cardenes."
G. H. Seydler
"That he was familiar with the signature of George Seydler, his uncle, and after being shown the instrument dated June 8, 1938, he identified the signature of `George Seydler,' subscribed thereto as the signature of the said George Seydler, his uncle. That the first time he saw such instrument dated June 8, 1938, was sometime in June of 1938 when he received the instrument through the mail. That he had kept such instrument in a box in his home, in his possession, since that time. That George Seydler died in 1951, a resident of Colorado County, Texas. That he was over 21 years of age on June 8, 1938, and was of sound mind at that time. That so far as he knows, such instrument had not been revoked."
The foregoing is the substance of the agreed statement upon which the case was tried in the District Court, from which it appears negatively that defendants offered no testimony to contradict that offered by the plaintiffs and that they rely for support of the judgment of the trial court entirely upon the proceedings resulting in the probate of the instrument of May 26, 1938, and upon the insufficiency, as a matter of law, of plaintiffs' proof to establish the instrument of June 8, 1938, as a valid will legally executed.
The manner of submission of the case to the trial court on an agreed statement, incorporating the testimony of witnesses, seems to us to be somewhat unusual; however, all parties treat the submission as if the witnesses, each and all, had testified in the District Court either in person or by deposition and we decide the case on that assumption.
Plaintiffs contend the case should be reversed and rendered in their favor because the proof establishes as a matter of law that the instrument of June 8, 1938, was executed with all the formalities and solemnities required by law to make it a valid will and that it therefore was entitled to probate as the last will of the decedent, revoking any and all wills theretofore executed by decedent, including the instrument of May 26, 1938. Specifically they rely for reversal upon the following points:
"Point #1. This cause should be reversed because, the uncontradicted evidence shows the instrument dated June 8, 1938, to be the last will of George Seydler, and that it was executed with all the formalities and solemnities and under the circumstances to make it a valid will.
"Point #2. The hand writing of the testator and the Attesting witnesses having been proven by two or more competent *472 witnesses, the attesting clause of the will, raised the legal presumption that the attesting witnesses signed the will in the presence of the testator, and will stand until rebutted by competent evidence. (Emphasis supplied.)
"Point #3. The will of George Seydler dated June 8, 1938 contained the usual clause, revoking all wills heretofore made, when it was proven to be a valid will, it revoked and annuled the will dated May 26th, 1938 by its own terms. The admitting of the instrument dated May 26th, 1938 to probate could not breath life into it, or require the proponents of the will dated June 8th, to produce more evidence to prove its due execution than the Statutes or law requires."
The appellees say the judgment of the District Court should be affirmed because the evidence was insufficient as a matter of law to establish revocation of the will of May 26, 1938, i. e., to establish the revoking instrument of June 8, 1938, as a validly executed will; and alternatively, that considered in its most favorable light from the standpoint of plaintiffs the evidence only raised issues of fact in this respect, which issues of fact have been properly determined against plaintiffs.
As presented in the brief, we gained the impression that the defendants relied upon the insufficiency of the proof to establish, as a matter of law, either (a) the genuineness of the testator's signature to the instrument of June 8, 1938, or (b) that such instrument was subscribed by the witnesses in the presence of the testator, as required by law. However, at the oral argument counsel for defendants stated they claimed no fraud and made no point of the genuineness of the signature of the decedent to the instrument of June 8, 1938. So their case as presented to us is limited to the contentions (a) that the evidence was legally insufficient and incompetent to show the witnessing of the instrument of June 8, 1938, as required by law for non-holographic wills, and (b) that at most the evidence only raised an issue of fact in this respect which the trial court was free to decide and did decide against the plaintiffs.
Independently of the concession made by counsel for defendants, we think it clear that the evidence compelled a finding of the genuineness of the signature of the testator to the instrument of June 8, 1938, as a matter of law. That the instrument bore the genuine signature of George Seydler was established by the uncontradicted testimony not only of the interested witnesses, F. H. Seydler and his wife, Agnes Myree Seydler, but as well by the uncontradicted testimony of the witness, John I. Marik, and that of Isabelle Cardenes.
In the brief defendants claim that Marik and Cardenes were interested witnesses because Marik was named executor in the instrument of June 8, 1938, and because Isabelle Cardenes, being a niece of George Seydler, was related to the plaintiffs, who were his nephews. The witness Isabelle Cardenes, for aught the record shows, bears the same relationship to the defendant, Erna Baumgarten, as she does to the plaintiffs, and there is nothing in the record to show that this witness had or was calculated to have any bias or prejudice in favor of, or against, any of the parties-plaintiff or defendant. As to the witness Marikwhile it is true he was named as executorit is also true that the record shows that office to be functus officio, since it was established that as of the time of the application for probate there was no necessity for administration on the estate and the proceeding was one involving solely a claimed muniment of title. Therefore, we see no possible interest in the controversy on the part of the witness Marik. In this state of the record, with at least two disinterested witnesses testifying to the genuineness of testator's signature and the defendants being content to stand mute on the point without offering *473 any evidence when clearly it was in their power to do so, we think there would have been no justification for the trial court refusing to accept the undisputed testimony in respect to the genuineness of the testator's signature to the instrument of June 8, 1938, coming as it did under circumstances wholly free of suspicion. The Supreme Court in Cochran v. Wool Growers Central Storage Co., 1942, 140 Tex. 184, 166 S.W.2d 904, 908, declared as an exception to the general rule permitting rejection of the uncontradicted testimony of an interested witness that such testimony is to be taken as true as a matter of law where "not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon."
Since there is no claim of either undue influence or want of testamentary capacity, and since the signatures of the testator and of competent subscribing witnesses are established as genuine without dispute, the narrow basic question before us is: Where, as here, the memory of the living subscribing witnesses, each and both, of all circumstances surrounding their witnessing of the will has completely fadedbeing dead, as it wereis a full attestation clause such as appears on the instrument of June 8, 1938, admissible and competent as secondary hearsay evidence to establish that the subscribing witnesses, each and both, attested the will, as required by Article 8283, V.A.T.S., Probate Code, art. 59, i. e., by subscribing their names in the presence of the testator?
We regard the affirmative of the question as settled by the overwhelming weight of authority elsewhere, and consider that the Texas cases of Massey v. Allen, Tex.Com. App., 1923, 248 S.W. 1067, and Wilson v. Paulus, Tex.Com.App., 1929, 15 S.W.2d 571, 573, holdings approved, clearly indicate that the general rule obtains in Texas.
In Wilson v. Paulus, the Commission of Appeals approved the text of 40 Cyc. 1304, as follows:
"`A full attestation clause reciting compliance with all formalities of execution and signed by the witness is prima facie evidence of the validity of the will, although the witness' memory is faulty, or he contradicts the facts stated in the clause, or where he is dead. The statements of the attestation clause may, however, be rebutted by proper evidence.'"
However the case was reversed because the attestation clause was not itself properly proved up in that the evidence established the genuineness of the signature of only one of the subscribing witnesses.
Massey v. Allen, supra, holds that the statutory provisions for proving up a written will produced in court are not exclusive and that when such provisions are not applicable, other common law methods are admissible. Though the opinion of the Commission in Massey v. Allen is not expressly approved by the Court itself, we consider the holding amply supported by Supreme Court authority cited in the opinion.
In Massey v. Allen, supra [248 S.W. 1069], one of the subscribing witnesses was deceased and the memory of the other in respect to the transaction in which he signed his name as a subscribing witness was dead. There was no direct proof that the will was witnessed by either of the subscribing witnesses in the presence of the testator, as required by statute, and apparently the instrument there in controversy carried no attestation clause above the signatures of the subscribing witnesses. There was only the fact of the witnesses having subscribed as such. There was no proof, either direct or circumstantial, to negative the proper execution of the will, as required by statute. But the signatures of the subscribing witnesses, each and both, were properly proved up. The Court of *474 Civil Appeals held the will entitled to probate and the Supreme Court affirmed. The Commission of Appeals stated:
"From these authorities and from those cited hereafter on the proposition that the witness Williams' memory being dead, his attestation should be given the same standing as though he himself were physically dead, we are constrained to hold that the probate of the will in controversy herein ought not to be defeated for the reason that there is no direct testimony that the witnesses signed the instrument in the presence of the testator, and that, as the facts and the circumstances surrounding the transaction, no fraud being shown, satisfy us that the will was duly executed with all the formalities and solemnities required by law, and that there being no evidence that the will was not signed in the presence of the testator, Williams' attestation being fully proven, the statute not being applicable, the legal presumption from all the facts is that the will was signed with all such formalities and solemnities."
Having held the provisions of Article 3267, Vernon's 1914 Texas Statutes, now Section 84 of the Probate Code, inapplicable, the Court turned to the common law, being by statute the rule of decision in Texas, and said:
"There being no statute applicable to the facts in this case, and no decision of our Supreme Court or Courts of Civil Appeals to guide us in passing upon this question, we therefore refer to the common law for our rule of evidence as provided under the last-named statute. The doctrine laid down in the case of Greenough v. Greenough, 11 Pa. 489, 51 Am.Dec. 567, meets our approval as stating the rule and the reason for the rule:
"`But what avails it that the man is living, if his memory is dead? If it were blotted out by paralysis, or worn out by decay, his attestation would stand for proof by a witness; but it must be immaterial how or by what means it lost its tenacity. The law of double proof would place wills on ticklish ground did it leave them to depend on the incorruptibility of attesting witnesses or on their exemption from growing infirmity. Even where they flinch from their attestation, it satisfies the demands of the statute in the first instance, and is evidence to confront them before a jury. After the testator has executed his will in conformity to the requirements of the law, it would be a mockery of his right of testamentary disposal to exclude presumptive or secondary evidence of a compliance with forms that would be received in cases of another nature.'
"The authorities outside of this state are apparently unanimous in holding that, if the witnesses to the will are produced in court and are forgetful of all the facts, the law in such cases will supply the defect of proof by presuming that the requirements of the statute were duly observed, unless the contrary is proved, and we cite a few of them as follows: Greenleaf on Ev. (16th Ed.) § 38a., p. 135; 1 Jones on Ev. § 50; 2 Wigmore on Ev. §§ 1511, 1512; 1 Alexander on Wills, § 511, p. 694; Beach on the Law of Wills, par. 39; 40 Cyc. par. J., p. 1273; Deupree v. Deupree, 45 Ga. 415; Barnes v. Barnes, 66 Me. 286; Eliot v. Eliot, 10 Allen, Mass., 357; Fatheree v. Lawrence, 33 Miss. 585, 622; Chaffee v. Baptist Missionary Convention, 10 Paige, N.Y., 85, 40 Am.Dec. 225; Clarke v. Dunnavant, 10 Leigh, Va., 13-22; Ela v. Edwards, 16 Gray, Mass., 91; Orser v. Orser, 24 N.Y. 51; O'Hagan's Will, 73 Wis. 78, 40 N.W. 649, 9 Am.St.Rep. 763."
The language of Massey v. Allen, supra, is sufficiently strong to support the proposition that the mere presence of signatures of subscribing witnesses, even without an attestation clause, raises a presumption of law as distinguished from a presumption of fact of the due execution of the will.
In addition to the authorities cited in Massey v. Allen, see the annotation in 76 A.L.R. 617 reaching the conclusion from numerous cases that all courts which have *475 considered the question "rule that a complete attestation clause reciting an observance of all statutory requirements raises a presumption of the due execution of a will if there is no contest as to the genuineness of the signatures of the witnesses, or that of the testator, or after these signatures are proved to be genuine.
* * * * * *
"And such presumption exists, although there is a failure of memory by the witnesses as to the facts relative to the execution."
The following quotation from Underwood v. Thurman, 1900, 111 Ga. 325, 36 S.E. 788, 790, set out in the annotation, supra, is explanatory of the sweep of the rule:
"An attestation clause, appearing upon a testamentary paper, and containing a recital of all the facts essential to its due execution as a will, as was the case here, raises a presumption that such paper was executed with all the requisite legal formalities pertaining to wills, if it be shown, as was done in the present instance, that the alleged testator and the witnesses actually affixed their signatures to the instrument; nor does it matter that as to two of the witnesses there was such a failure of memory, as that above indicated. `If a will purports to have been duly signed, attested, and witnessed, on proof of execution the court will presume, in the case of the death of the witnesses, or in case they do not remember the facts connected with its execution, that the law was complied with.' 1 Jones, Ev. § 44, p. 89. On this subject Greenleaf says: `If the subscribing witnesses to a will are dead, or if, being present, they are forgetful of all the facts, or of any material fact to its due execution, the law will in such cases supply the defect of proof by presuming that the requisites of the statute were duly observed.' 1 Greenl.Ev. (16th Ed.) § 38a. From 1 Redf.Wills, (4th Ed.) * 238, we extract the following: `It seems to be well settled that, in the absence of all proof, the witnesses being deceased or not in a condition to give testimony, the presumption omnia rite acta will arise, as in ordinary cases. So, also, where the attestation is general, not enumerating the particulars, it will be presumed the will was duly executed, unless the contrary appear. And, where the attestation clause contains all the particulars of a good execution, it will always be prima facie evidence of due execution, and will often prevail over the testimony of the witnesses who give evidence tending to show that some of the requisites were omitted.' The distinguished author also says that `the mere forgetfulness of the witnesses of the facts certified in the attestation clause is not regarded as an obstruction to granting probate of the will,' and, after referring to a case where probate was allowed even where the witnesses deposed that the legal requirements were not complied with, adds that it has been held that the presumption of due execution `will only be made where the will, upon its face, appears to have been duly executed, or, being lost, proper evidence is adduced of such having been the fact.'"
We hold there was competent evidence to support the due execution of the instrument of June 8, 1938, as a will, and now consider whether the evidence in its entirety compelled a finding of due execution or only raised an issue of fact in respect to the subscribing witnesses having signed as such in the presence of the testator, which is the only fact issue appellees claim the evidence raises.
To support their contention appellees rely heavily upon the probate of the earlier instrument of May 26, 1938, and on the evidence of the subscribing witness, W. R. Keuper, to such earlier instrument, as follows: "Said George Seydler died without having revoked his last will and testament." Additionally, appellees rely upon the failure of the proponents of the instrument of June 8, 1938, to offer any evidence other than the attestation clause with respect to the circumstances attending the preparation and execution of the instrument of June 8, 1938; their failure to offer any explanation *476 of why the testator would revoke the will of May 26, 1938, within thirteen days after its execution; and the failure of proponents of the instrument of June 8, 1938, to offer any evidence in respect to the relationship between them and the testator other than the bare fact of their kinship as nephews of the testator. The appellees also point to the failure of appellants to explain from whom the will was received other than that it came to appellant Seydler in the mails, and as well to appellants' failure to produce the draftsman of the instrument or to present any evidence in respect to the circumstances under which the will was drafted. In our opinion, had appellants made proof along these omitted lines, such proof would not have shed any light on the narrow question which is the only one before usof whether the will was properly witnessed by the subscribing witnesses in the presence of the testator. Then, too, it would appear that the omitted proof, so far as the record shows, was equally available to appellees as to appellants, except possibly proof in respect to the party from whom the will was received by the appellant Seydler. However this latter detail strikes us as wholly irrelevant to the proper execution of the will in view of the concession of the genuineness of all the signatures appearing on the instrument of June 8, 1938. In short we are unable to see how any of the above could have had any probative force in respect to the due execution of the will, which is the sole grounds of defense to appellants' suit, unless it be either the fact of the probate of the earlier instrument carrying with it, as such probate does, a finding of nonrevocation, or the testimony of the witness Keuper to the effect that the earlier instrument had not been revoked.
We first consider the probative effect of the judgment establishing the earlier will.
Appellees cite several cases stating that the fact of probate of a will entitles it to "every presumption * * * in favor of * * * [its] validity," including Bell v. Bell, Tex.Civ.App., 248 S.W.2d 978, 982, and Cook v. Denike, Tex. Civ.App., 216 S.W. 437. However, rightly understood, we believe that the "presumption" referred to in these cases is actually no more than an administrative assumption. And that in a proceeding of this kind to set aside the probate of a will on the ground of revocation it is not contemplated that the earlier probate be given any weight as evidence but only that the court proceed on the administrative assumption, in the absence of proof, that the earlier probate establishes the validity and nonrevocation of the probated instrument. It is true that in a proceeding such as this, under Article 5534, the burden is on the plaintiff affirmatively to show the revocation of the earlier probated will. Richardson v. Ames, Tex.Civ.App., 2 S.W.2d 517. But that burden is only by a "preponderance of the evidence" and we do not consider the cases as holding, or even intimating, that in a suit under Art. 5534 the probate of an earlier instrument constitutes "evidence" of its nonrevocation. Such probate, we believe, goes no further than to raise an administrative assumption as explained in Empire Gas & Fuel Co. v. Muegge, Tex.Com.App., 1940, 135 Tex. 520, 143 S.W.2d 763, and other cases, which vanishes or is put to flight when positive evidence to the contrary is introduced. For an extended discussion of this question, see Kilgore v. Gannon, 1916, 185 Ind. 682, 114 N.E. 446, L.R.A.1917E, 530, and the annotation in L.R.A.1917E, page 533, reviewing cases considering probate of wills as evidence. In the interest of brevity, we quote a syllabus from Kilgore v. Gannon: "In an action to contest a will, the fact that the will had been admitted to probate was not prima facie evidence that testator was a person of sound mind when he executed the instrument, and that it was duly and properly executed, evidence having been offered to the contrary, since the ordinary function of most so-called presumptions *477 of law, as they relate to the law of evidence, is to cast on the party against whom the presumption works the duty of going forward with evidence; and, when that duty is performed, the presumption is functus officio." (Emphasis supplied.) There are many so-called presumptions, such as of sanity, innocence in civil cases, that a public officer does his duty, etc., but as declared by the text writers these are in reality only administrative assumptions of a prima facie character which yield, vanish and are put to flight in short, become functus officioupon the coming in of positive evidence. Presumptions of this class are not evidence in the sense of proof.
Lastly we come to the question which arises from the presence in the record of testimony of W. R. Keuper, a subscribing witness to the probated instrument, given at the hearing of January 17, 1955, on the application to probate that instrument, that "said George Seydler died without having revoked said last will and testament." In a proceeding to set aside the probate of a will such as the present, is this competent evidence of the nonrevocation of the instrument of May 26, 1938? Does it add any weight to the presumption of continuity arising from proof of the due execution of the instrument of May 26, 1938? McElroy v. Phink, 97 Tex. 147, 76 S.W. 753, 77 S.W. 1025; May v. Brown, 144 Tex. 350, 190 S.W.2d 715. If it is, then under this record, it must be evidence either that the testator did not sign the instrument of June 8, 1938, or that the subscribing witnesses did not sign it as witnesses; or if they did that they did not subscribe in the presence of the testator.
We think it perfectly evident that the testimony of the witness Keuper given in the January 17, 1955 hearing, when the probate of the instrument of May 26, 1938 was alone under consideration, was not even intended to go out to or apply to any fact question of due execution of the instrument of June 8, 1938. Perhaps the quoted testimony of this witness was intended as no more than evidence of a negative character such as was discussed in Wilson v. Paulus, Tex.Com.App., 15 S.W.2d 571, 573. Since that decision the view is held in many quarters that it is necessary to introduce positive evidence of witnesses at probate hearings that the propounded instrument has not been revoked. In Wilson v. Paulus, supra, it was held that the testimony of a witness, as follows: "`Of my own knowledge, I do not know whether or not Mr. Wilson ever revoked this will'" was "some evidence" of nonrevocation. With due respect, we regard the ruling as highly questionable and are convinced it proceeded from the court's then incorrect concept of the necessities of justice. In fairness to the court, it should be pointed out that it is readily deducible the court, as it wrote, was not aware of its own prior holding in McElroy v. Phink, supra, which it afterward followed in May v. Brown, supra, that the mere proof of due execution of a will raises a presumption of continuity and that this presumption satisfies the demand of the statute for proof of nonrevocation.
But be the foregoing as it may, we are satisfied that for another reason the testimony of the witness Keuper was not competent evidence, at least in a proceeding such as the present, of nonrevocation of the instrument of May 26, 1938. The testimony is couched in terms of rankest legal conclusion. Actually it is nothing more than an out-and-out conclusion of law, or possibly of mixed law and fact. Under well established rules it was clearly incompetent and inadmissible in a proceeding such as the present. Being incompetent as a mere conclusion, it is not to be given probative effect even though admitted without objection. See Casualty Underwriters v. Rhone, 1939, 134 Tex. 50, 132 S.W.2d 97, 99. We quote:
"The only testimony in the record which would in the least tend to support the conclusion that Rhone was working *478 for the Beaumont Development Corporation was given by Rhone and McDaniel, each of whom testified that, at the time of the injury, Rhone was working for it. Those statements did not amount to any evidence at all. They were but bare conclusions and therefore incompetent, and the fact that they were admitted without objection adds nothing to their probative force. Henry v. Phillips, 105 Tex. 459, 151 S.W. 533; Webb v. Reynolds, Tex. Com.App., 207 S.W. 914; 17 Tex.Jur. 922, Sec. 416."
See also Henry v. Phillips, 105 Tex. 459, 151 S.W. 533, 537, holding that incompetent testimony, though admitted without objection, may not form a basis of a fact finding. In that case the court had under consideration evidence, hearsay in character, in disparagement of a grantor's deed duly executed, offered for the purpose of showing the nonexecution of the deed in question, for the purpose of conveying the land therein described. The court said:
"While the admission of this testimony was not objected to by counsel for defendants, that fact would be important only in the event its admission was afterwards complained of as violative of a right reserved to defendants. Such incompetent testimony can never form the basis of a finding of facts in an appellate court, notwithstanding its presence in the record without objection. When the appellate court comes to apply the law to testimony constituting the facts of the case, it can only base its conclusion upon such testimony as is under the law competent. That which is not competent testimony should be given no probative force. The admission of such testimony is no talisman to give effect to that which is irrelevant and incompetent to sustain or deny a material issue in a case."
Since so far as the record shows the witness Keuper was available to testify to the details of his knowledge, if any, of the facts in respect to the due execution vel non of the instrument of June 8, 1938, we are wholly unable to see any justification, in the light of the ruling by the Supreme Court in the case of Henry v. Phillips, and especially in the light of its similar ruling in Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97, involving an incompetent conclusion, for our giving any probative weight to the outright legal conclusion of the witness, especially when he detailed no fact upon which that legal conclusion was based. It would be idle for us to determine whether the completely negative testimony of a witness in respect to facts such as was ruled on in Wilson v. Paulus, supra, would have any greater probative value than his affirmative speculative legal conclusion such as is involved here. Consequently we pretermit a discussion of this question.
We are not unaware of such cases as In re Abel's Will, New York, 1910, 136 App.Div. 788, 121 N.Y.S. 452, holding that an attestation clause does not give rise to a presumption of law but is only presumptive evidence of such facts as may be deduced or inferred from it naturally and that therefore the effect of an attestation clause is simply to create very strong presumptive evidence of other facts. But such cases must be weighed in the light of the particular statutes under which they were decided. The New York statute under which In re Abel's Will was ruled expressly provided in certain instances for the establishment of wills "upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of an action." Surrogate's Court Act, § 142. (Emphasis supplied.) However, Texas has no such statutory provision, and it is evident from Massey v. Allen, supra, that in Texas proof of the attestation of a will by subscribing witnesses, even in the absence of an attestation clause, gives rise to a true presumption of law as distinguished from an inference or presumption of fact. This is further clarified by the holding of Wilson v. Paulus, supra, that an attestation *479 clause constitutes presumptive evidence of the proper execution of a will which "must be overcome by evidence to the contrary." This again is in effect a holding that an attestation clause gives rise to a true presumption of law as distinguished from a mere permissible inference or presumption of fact. The importance of the distinction is that a presumption or inference of fact, even in the absence of conflicting evidence, does not forestall a fact finding to the contrary; whereas a presumption of law does. See 17 Tex.Jur., p. 245, EvidenceCivil Cases, Sec. 56. The practical importance is that if the attestation clause here involved raises only a presumption of fact, the limit of our authority would be to reverse and remand; whereas if it raises a true presumption of law, we are constrained, in the absence of conflicting competent evidence, to reverse and render.
On the authority of Massey v. Allen and Wilson v. Paulus, supra, we hold that the attestation clause here involved raises a presumption of law in favor of the due execution of the will. We further hold under the facts in this record that the declarations showing due execution of the will contained in the attestation clause are competent, admissible, and direct, though hearsay, evidence of the facts recited, which, in the absence of any competent, admissible evidence to the contrary, demands a finding of the due execution of the will.
There are no findings of fact or conclusions of law in the record. We are, therefore, without information in respect to the ground upon which the learned trial court based his decision; but we are inclined to think that he was probably influenced strongly by Jones v. Steinle, Tex. Civ.App., 15 S.W.2d 164, a case relied upon by appellees in this Court. However, we regard Jones v. Steinle as inapplicable. In that case the proponents of the will failed to lay a proper predicate for the introduction of secondary proof and it was ruled, therefore, that such proof could not be relied on. Having failed to produce or account for the absence of one of the attesting witnesses and also apparently having failed even to prove the genuineness of the signature of such witness, the appellant was held to be in no position to complain of an unfavorable fact finding based upon the affirmative testimony of one of the two subscribing witnesses that the testator did not sign in the presence of such witness. If the opinion in Jones v. Steinle, supra, goes further, then it is thought contrary to Massey v. Allen, and Wilson v. Paulus, supra, and we decline to follow it.
Reversed and rendered.
CODY, J., not sitting.
On Appellees' Motion for Rehearing.
In their application for rehearing, appellees move the Court to strike from the opinion certain statements referring to concessions made by counsel for appellees at the oral argument. The motion is as follows:
"Appellees move the court to strike from its opinion the statements made therein with reference to oral argument made by counsel for appellees. These statements of the court relate to the genuineness of the signature of George Seydler on the instrument dated June 8, 1938 and will be found at the following places in the court's opinion:
"On page 8 of the court's opinion, beginning with the word `however' in the fourth line following the period.
"On page 8 in the first line of the next to the last paragraph, beginning with the word `independently.'
"On page 9 in the first four lines of the last paragraph.
"In connection with the foregoing, it is here stated that counsel for appellees had no intention of conceding that the evidence established that the signature on the instrument of June 8, 1938 was the genuine signature *480 of George Seydler, deceased. What counsel intended to be said, and what counsel believes was actually said, was, in effect, that no witness testified to any fraud, or testified that the signature was not genuine, but the point appellees were trying to make was that the evidence as shown by the record at most only raised an issue of fact as to whether the signature was genuine, and the trial court's finding was conclusive. The brief of appellees will show that such contention was made there. Appellees submit that, under the circumstances of the record in this case, if this court overrules this motion for rehearing then appellees should be permitted to go to the Supreme Court on the written record."
At the Judges' conference immediately following submission of this cause, the members of the Court were hard put to convince themselves, in the light of the contents of appellees' brieftheir hearing to the contrary notwithstandingthat the concessions referred to had actually been made; but, after full discussion reached the conclusions in respect thereto which appear in the opinion. In the light of the contents of the motion for rehearing, we are convinced that we misunderstood counsel, or misconstrued what was said, or, if what was said would bear out what is stated in the opinion, that the statement was made unguardedly and unintentionally and ought not to be binding on appellees.
We are happy, in the interest of justice and fair play, to sustain the above motion, and we now withdraw so much of the opinion as we are asked to withdraw thereby.
As we understand the motion, there is no question but that at the oral argument it was conceded by appellees that they claimed no fraud.
We have carefully considered all grounds of appellees' motion for rehearing and, except as herein set out, find no merit therein and same is refused. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2179787/ | 761 A.2d 218 (2000)
Robert J. BERNINGER, Petitioner,
v.
WORKERS' COMPENSATION APPEAL BOARD (EAST HEMPFIELD TOWNSHIP), Respondent.
Commonwealth Court of Pennsylvania.
Argued September 13, 2000.
Decided October 30, 2000.
*219 James A. Nettleton, Jr., Lancaster, for petitioner.
William C. McCarty, Lancaster, for respondent.
BEFORE: DOYLE, President Judge, COLINS, Judge, McGINLEY, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, KELLEY, Judge, FLAHERTY, Judge.
McGINLEY, Judge.
Robert J. Berninger (Claimant) petitions for review from the order of the Workers' Compensation Appeal Board (Board) which affirmed the decision of the Workers' Compensation Judge (WCJ) that dismissed Claimant's claim petition.
Claimant worked as a police officer for East Hempfield Township (Employer). Claimant was unable to perform his official duties after January 9, 1998, due to psychological problems. Because of Claimant's attention deficit disorder, Employer accommodated him by assignment to a steady shift rather than a rotating shift.
Claimant petitioned for benefits on the basis that he could not possibly perform his duties as a police officer, that he was depressed and "burned out" from the stress of the job, and also because of his attention deficit disorder. Employer answered and denied all allegations. Specifically, *220 Employer asserted that, assuming arguendo, Claimant's allegations were true, none of the complained of conditions were causally related to Claimant's employment.
The WCJ held a hearing on June 4, 1998. Employer moved to dismiss. The parties stipulated that Claimant's disability was not caused by any specific incident or by abnormal working conditions. No testimony was taken. On or about October 5, 1998, the WCJ dismissed the petition on the basis that Claimant failed to establish that abnormal working conditions caused the work-related stress. The WCJ made the following relevant findings of fact:
2. The Claimant is asserting a psychic injury.
3. The Claimant will stipulate that he was not subjected to any abnormal working conditions or duties.
4. The Claimant suffers from a pre-existing condition and his current problems are due to a subjective reaction to normal working conditions.
WCJ's Decision, October 5, 1998, Findings of Fact Nos. 2-4 at 1.
Claimant appealed to the Board and alleged that the dual burden of proving that he was subjected to abnormal working conditions and then suffered a psychic injury as a result of the abnormal working conditions when asserting a mental/mental claim contravenes the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and that the dual burden standard impinges upon his right to equal protection guaranteed by the United States and Pennsylvania Constitutions. The Board affirmed on the basis that Claimant did not establish that he was subjected to abnormal working conditions. The Board did not address the constitutional issue as it was beyond its purview.
Initially, Claimant contends that the ADA invalidated the dual burden imposed upon him to establish a mental/mental claim.[1] Our Pennsylvania Supreme Court has held:
[T]here is a degree of uncertainty in any employment situation, as in life itself, such that an employee's individual, subjective reaction to these ordinary vicissitudes is not the type of condition which the legislature intended to require compensation for because it is not, in the common understanding, an injury.... In the absence of more definitive guidance, we conclude that it is in the nature of the injury asserted, not the presence or absence of physical symptoms that is controlling. Accordingly, we hold that the standard to be applied to claims for workers' compensation benefits when the claimant asserts a psychic injury that has manifested itself through psychic and physical symptoms is the same standard that we articulated in Martin: such a claimant must prove by objective evidence that he has suffered from a psychic injury and that the psychic injury is other than a subjective reaction to normal working conditions.
Davis v. Workmen's Compensation Appeal Board (Swarthmore Borough), 561 Pa. 462, 751 A.2d 168, 177 (2000).
Here, Claimant admits that he did not meet this burden. However, Claimant asserts that this burden violates the ADA because it requires a mentally impaired individual to meet a greater burden than an employee who is physically injured because the physically injured employee must only show that he was injured in the course and scope of his employment. The ADA defines disability as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
*221 (B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102. With respect to discrimination, the ADA provides:
(a) General RuleNo covered entity shall discriminate against a qualified individual with disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112.
Claimant considers himself disabled within the meaning of the ADA. Assuming that Claimant is disabled, which was not established of record, we disagree that the mental/mental standard violates the ADA. While this is a case of first impression before this Court, the issue has been judicially addressed.
In Cramer v. Florida, 885 F.Supp. 1545 (M.D.Fla.1995), affirmed, 117 F.3d 1258 (11th Cir.1997), two plaintiffs filed a class action suit in federal court challenging the wage loss and impairment sections of Florida's workers' compensation statute as violative of the ADA. The plaintiffs alleged that the statute used impairment as the determining factor for assessing the level of benefits to which an injured employee is entitled instead of disability and as a result the statute violated the ADA because persons with lower impairment ratings may be more disabled than persons with higher impairment ratings but still receive less benefits. Cramer, 885 F.Supp. at 1551. The District Court held that "in light of the differing purposes of the ADA and workers' compensation, together with Supreme Court precedent in analogous cases[2], the Court finds that the ADA applies only to discrimination against disabled persons compared to non-disabled persons." Id. The District Court also determined that the Florida workers' compensation statute was expressly and specifically addressed at Section 501(b) of the ADA which provides in pertinent part:
Nothing in this chapter shall be construed to invalidate or limit the remedies, rights and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this Act.
42 U.S.C. § 12201(b). The District Court determined that the Florida statute provided protection at least equal to that of the ADA with regard to individuals with a disability. Cramer, 885 F.Supp. at 1552.
Without addressing whether the Workers' Compensation Act (Act)[3] provides equal or even greater protection for the rights of individuals with disabilities than are afforded by the ADA, we find instructive the District Court's reasoning that the ADA only applies to discrimination between non-disabled and disabled persons. Therefore, we find that the mental/mental *222 standard for establishing a psychic injury does not violate the ADA even though it is a different standard than that required to prove a physical injury.[4] The Act distinguishes between types of disability not between disabled and non-disabled individuals. The ADA does not invalidate the dual burden imposed upon a mental/mental claimant.
Claimant next contends that the dual burden denies him equal protection and is unconstitutional under the Fourteenth and Fifth Amendments to the United States Constitution and under the Pennsylvania Constitution, Article I, §§ 11 and 26 and Article III, § 18.[5]
Courts have devised three general levels of scrutiny for Equal Protection Clause challenges. The highest level, known as strict scrutiny, applies to legislative classifications infringing upon fundamental rights, such as free speech, and to those which are inherently suspect because they inordinately burden a group of citizens traditionally victimized by discrimination, for instance racial minorities.... Under this scrutiny, a classification will not pass constitutional muster unless it is necessary to advance a compelling state interest.... The next level, termed middle-level or intermediate scrutiny, applies to classifications affecting less fundamental rights, such as commercial speech, and to classifications which are not quite so suspect.... When this test applies, a classification must serve an important government interest.... The third level, employing the least scrutiny, is the rational relationship test. It applies to all other legislative classifications, for example those implicating economic rights. This minimal scrutiny upholds classifications unless they are patently arbitrary and lack any rational relationship to a legitimate government interest. (Citations omitted).
Lyles v. City of Philadelphia, 88 Pa.Cmwlth. 509, 490 A.2d 936, 940-941 (1985), affirmed, 512 Pa. 322, 516 A.2d 701 (1986).
Claimant contends that his case must be reviewed under the strict scrutiny standard *223 because a suspect classification has been created and a fundamental right has been burdened. Claimant asserts that the House report that accompanied the ADA stated the purpose of the ADA was to provide parallel protections to those with disabilities that minorities and women enjoy. According to Claimant, because disabled persons are analogous to these suspect classes, strict scrutiny must apply.
We must reject Claimant's reasoning. The ADA is designed to prevent discrimination between disabled and non-disabled individuals. The dual mental/mental standard places a different standard of proof on mentally as opposed to physically injured workers. We have already determined that the mental/mental standard does not violate the ADA. Claimant's reliance on the House report that accompanied the ADA is misplaced. The appropriate analysis requires the mental/mental standard to be evaluated under the rational basis test as the classification affects economic rights.
The two elements to the rational basis test are (1) a legitimate governmental reason and (2) a classification which is rationally related to that reason. Strong v. County of Erie, 122 Pa.Cmwlth. 461, 552 A.2d 350 (1989). Here, there is a legitimate government interest at stake when there is a determination whether a worker claiming a work-related psychic injury has actually suffered an injury. The purpose of the Act was to substitute a form of accident insurance in place of common law rights and liabilities for employees covered by its provisions. Vescio v. Pennsylvania Electric Co., 336 Pa. 502, 9 A.2d 546 (1939). Therefore, there is a legitimate government interest in providing compensation for those employees covered under the Act because an injured employee's means to obtain compensation for his injuries is legislatively curtailed.
Further, under Section 1504 of the Act, 77 P.S. § 2604, the State Workers' Insurance Board (Insurance Board) operates and administers the State Workers' Insurance Fund which provides insurance for employers under the Act. Under Section 1505 of the Act, 77 P.S. § 2605, the State Treasurer is the custodian of the fund. The Insurance Board establishes the amount of premiums for subscribers. See Section 1507 of the Act, 77 P.S. § 2607. Therefore, the Commonwealth of Pennsylvania has an interest in seeing that only those employees legitimately injured in the course of their employment receive benefits under the Act. The dual burden classification is rationally related to this government interest because it requires a psychic injury claimant to firmly establish that not only has he suffered an injury but also that the injury was directly caused by an abnormal working condition rather than just the claimant's own subjective reaction to normal working conditions.
Accordingly, we affirm.
ORDER
AND NOW, this 30th day of October, 2000, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
NOTES
[1] Our review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 139 Pa.Cmwlth. 15, 589 A.2d 291 (1991).
[2] The District Court relied on Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) in which the Supreme Court held that Tennessee's statutory framework for paying Medicaid benefits did not violate Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., which was the precursor to the ADA, where Tennessee reduced the number of inpatient hospital days per year per patient which allegedly had a disproportionate impact on the disabled. The Supreme Court reasoned that the Rehabilitation Act "does not guarantee the handicapped equal results from the provision of state Medicaid even assuming some measure of equality of health could be constructed." Choate, 469 U.S. at 304, 105 S.Ct. 712. Similarly, in Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1998), the United States Supreme Court reasoned that the Rehabilitation Act did not require that any benefit extended to one category of handicapped persons must be extended to all other categories of handicapped persons when it found that a provision of the Veterans Readjustment Benefit Act of 1966 violated the Rehabilitation Act.
[3] Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626.
[4] Claimant relies on a footnote in this Court's opinion in Hershey Chocolate Co. v. Workmen's Compensation Appeal Board (Lasher), 162 Pa.Cmwlth. 23, 638 A.2d 336 (1994), reversed, 546 Pa. 27, 682 A.2d 1257 (1996) which addressed the mental/mental standard and stated:
We also note that the dual standard clearly violates the Americans With Disabilities Act, 42 U.S.C. §§ 12101-12213. This court, however, cannot raise said violation sua sponte, pursuant to the Pennsylvania Supreme Court's decision in Dept. of Transportation, Bureau of Driver Licensing v. Boros, 533 Pa. 214, 620 A.2d 1139 (1993).
We agree with Employer that this footnote was dicta and the issue of ADA applicability was not before this Court.
[5] With respect to the constitutional issue, Employer asserts that this was waived because Claimant did not raise it before the Board. It is true that Claimant did not raise the issue in his notice of appeal to the Board from the WCJ's findings of fact and conclusions of law, but Claimant asserts that he raised the issue in his brief to the Board. Claimant's brief to the Board is not a part of the record of this case. The Board then stated in its opinion that "Furthermore, Claimant argues that, as applied, the dual burden standard impinges upon his equal protection under the law, as guaranteed by the United States and Pennsylvania Constitutions. However, due process constitutional arguments and ADA arguments are beyond the purview of this Board." Board Opinion, October 7, 1999, at 3. This Court has noted our Pennsylvania Superior Court's statement that "it is beyond cavil that an appellate court is limited to considering only those facts which have been duly certified in the record on appeal. For purposes of appellate review, what is not of record does not exist. It is the appellant's responsibility to provide a complete and comprehensive record to the reviewing court." Steglik v. Workers' Compensation Appeal Board (Delta Gulf Corp.), 755 A.2d 69, 74 n. 3 (Pa.Cmwlth. 2000), quoting Spink v. Spink, 422 Pa.Super. 126, 619 A.2d 277, 280 n. 1 (1992). Nevertheless, because the Board acknowledged the constitutional issue in its opinion, we believe that Claimant adequately raised and preserved the issue, and we will address it. We note that the Board has no jurisdiction to determine the constitutional validity of its own enabling legislation. Ruszin v. Dept. of Labor & Industry, Bureau of Workers' Compensation, 675 A.2d 366 (Pa.Cmwlth.1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/47972/ | United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 18, 2007
Charles R. Fulbruge III
Clerk
No. 05-20770
Summary Calendar
JOHN W. MELTON,
Plaintiff-Appellant
v.
MS. LOCK, Unit Parole Officer; UNIT PAROLE OFFICER SMITH;
OFFICE OF INSPECTOR GENERAL; RISSIE OWENS, Presiding Officer
Texas Board of Pardon and Paroles; BRYAN COLLIER, TDCJ Parole
Division Director; LELAND HENSZEL; BRAD LIVINGSTON; U.G.I.
MCADAMS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-3406
--------------------
Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
John W. Melton, Texas prisoner # 1168128, has filed a motion
for leave to proceed in forma pauperis (IFP) on appeal. The
district court denied Melton’s motion to appeal IFP and certified
that the appeal was not taken in good faith. By moving for IFP,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-20770
-2-
Melton is challenging the district court’s certification. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Melton does not address the district court’s denial of his
claim that he was denied access to courts. Accordingly, that
claim has been abandoned. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993). Moreover, there is
no reversible error resulting from the district court’s failure
to address Melton’s claims of the denial of medical care for
Hepatitis C, of the denial of dental care, and of administrative
retaliation as these claims were raised neither in Melton’s
original nor amended complaints, and Melton does not argue that
the attachment to his motion for appointment for counsel, wherein
those claims were raised, should have been construed by the
district court as an implicit motion to amend his complaint. See
FED. R. CIV. P. 7 and 15; cf. United States v. Riascos, 76 F.3d
93, 94 (5th Cir. 1996). The district court also did not err in
failing to address Melton’s claim of toxic exposure because, as
Melton conceded, the claim was unexhausted. See 42 U.S.C.
§ 1997e(a); Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003).
Melton has shown no error by the district court in denying
his parole-related claims as Texas has not created a liberty
interest in parole that is protected by the Due Process Clause.
See Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995). Moreover,
allegations that the parole board considered unreliable
No. 05-20770
-3-
information in making a parole determination, without more, does
not assert a federal constitutional violation. See Johnson v.
Rodriguez, 110 F.3d 299, 308-09 (5th Cir. 1997).
The district court did not err in denying Melton’s claims
that his constitutional rights were being violated because he was
being denied enough food for a person with a gastrointestinal
disease and because he was suffering from severe stomach cramps.
Even assuming, arguendo only, that Melton’s claims were not, as
the district court found, repetitive to claims raised in other
civil actions filed by Melton, Melton did not name any particular
defendant that was responsible for these alleged constitutional
violations. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th
Cir. 1992) (we may affirm “on any grounds supported by the
record”).
Melton has not shown that the district court’s determination
that his appeal would be frivolous was incorrect. The instant
appeal is without arguable merit and is thus frivolous.
Accordingly, Melton’s request for IFP status is denied, and his
appeal is dismissed. See Howard v. King, 707 F.2d 215, 219-220
(5th Cir. 1983); 5TH CIR. R. 42.2. The dismissal of this § 1983
suit by the district court and our dismissal of this appeal as
frivolous both count as strikes under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). In
Melton v. Livingston, No. 06-20097, Melton was notified that he
accumulated one strike. Melton has therefore accumulated three
No. 05-20770
-4-
strikes, and he is barred from proceeding IFP in any civil action
or appeal brought in a United States court unless he is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1619733/ | 955 So. 2d 517 (2007)
Alexander GALINDEZ, Petitioner,
v.
STATE of Florida, Respondent.
No. SC05-1341.
Supreme Court of Florida.
February 15, 2007.
Rehearing Denied April 17, 2007.
*518 Bennett H. Brummer, Public Defender and Shannon Patricia McKenna, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief Criminal Appeals, Michael E. Hantman and Paulette R. Taylor, Assistant Attorney Generals, Miami, FL, for Respondent.
PER CURIAM.
In Galindez v. State, 910 So. 2d 284, 285 (Fla. 3d DCA 2005), the Third District Court of Appeal certified conflict with the First District Court of Appeal's decision in Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005), which held that Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), decided after the defendant's conviction was final, apply to a subsequent resentencing. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.; Galindez v. State, 925 So. 2d 1030 (Fla. 2006) (granting review). As we explain below, we find that any failure to apply Apprendi and Blakely in this case constitutes harmless error. Accordingly, we need not determine whether these Supreme Court cases apply in such resentencings and we decline to resolve the conflict at this time.
I. APPRENDI AND BLAKELY AND THE CONFLICT IN THE DISTRICT COURTS
Below we first explain the holdings in Apprendi and Blakely and the pertinent *519 facts of Galindez and briefly describe the conflict between the district courts. We then apply the Supreme Court's recent decision in Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), to the facts of this case and conclude that any error in applying Apprendi and Blakely is harmless.
A. Apprendi and Blakely and Sentencing
The Supreme Court's decisions in Apprendi and Blakely have significantly affected criminal sentencing procedure at both the state and federal levels. In 2000, the Court held in Apprendi that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S. Ct. 2348. Four years later, the Court applied Apprendi in examining a sentence imposed upon the defendant's guilty plea. Blakely, 542 U.S. at 301, 124 S. Ct. 2531. Addressing the State's claim that the sentence fell within the statutory maximum, the Court stated the following:
Our precedents make clear, however, that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts "which the law makes essential to the punishment," and the judge exceeds his proper authority.
Id. at 303-04, 124 S. Ct. 2531 (citations omitted).
The Supreme Court recently applied the principles of Apprendi and Blakely to a determinate sentencing statute. Cunningham v. California, ___ U.S. ___, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007). California's sentencing scheme granted trial courts discretion to sentence defendants to one of three terms of years. The middle term was the designated default, but the trial court could impose the upper term upon its own finding of aggravating factors that the Supreme Court concluded were "neither inherent in the jury's verdict nor embraced by the defendant's plea." Id. at 860. Concluding that the middle term constituted the statutory maximum, the Court held that "[b]ecause the [statute] allocates to judges the sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment." Id. at 859.
With these three decisions, the Court effectively eliminated most judicial factfinding that would increase a sentence. Except for the fact of a prior conviction, a judge may not find any fact that exposes a defendant to a sentence exceeding the relevant statutory maximum, unless that fact inheres in the verdict, the defendant waives the right to a jury finding, or the defendant admits the fact. Under Apprendi, Blakely, and Cunningham, such sentence-elevating facts must be found by a jury, not a judge, and established beyond a reasonable doubt.
B. The Facts of the Case
Based on the evidence, including the twenty-four-year-old Galindez's admissions that he repeatedly had sexual relations with a twelve-year-old girl over a period of several months and impregnated her and the pregnant victim's testimony confirming those facts, a jury found Galindez guilty of two counts of lewd and lascivious assault on a minor and one count of child abuse by *520 impregnating the victim. See §§ 800.04, 827.04(3), Fla. Stat. (1997). Galindez's sentencing scoresheet assessed 240 victim injury points (3 × 80) for sexual penetration, and the trial court sentenced Galindez to a guidelines sentence of thirty years in prison. The Third District affirmed. Galindez v. State, 728 So. 2d 333 (Fla. 3d DCA 1999).
Galindez then filed a motion under Florida Rule of Criminal Procedure 3.800(a), alleging scoresheet error. See Galindez v. State, 831 So. 2d 780, 780 (Fla. 3d DCA 2002). On rehearing, the district court held that Galindez's scoresheet "erroneously reflect[ed] an assessment of 80 victim injury points" for his conviction on one of the lewd and lascivious assault counts. Id. Because "the conviction was for sexual union without penetration" and sexual penetration was not charged, the court held he should have been assessed only 40 points. Id. The Third District reversed and remanded for resentencing.
On October 30, 2003, the circuit court used a revised guidelines scoresheet assessing 200 victim injury points to sentence Galindez to 24 years in prison: 18 years on Count I (lewd assault on a minor); a consecutive sentence of six years on Count IV (lewd assault on a minor); and, concurrent with Count IV, a five-year sentence on Count V (child abuse by impregnation).
Almost immediately, Galindez filed a motion for resentencing, which the circuit court denied on November 21, 2003. Galindez appealed to the Third District. During the pendency of that appeal, he filed a motion in the circuit court under Florida Rule of Criminal Procedure 3.800(b), arguing for the first time that the assessment of victim injury points violated Apprendi because the jury did not make the victim injury findings. The circuit court denied the motion.
The following month, the United States Supreme Court decided Blakely. In considering Galindez's appeal, the Third District stated that the "primary issue" was whether Apprendi and Blakely "require the invalidation of any points for penetration because they were assessed by the court, rather than by the jury." Galindez, 910 So.2d at 284-85. The court held that to apply Apprendi and Blakely to the resentencing in this case would constitute their retroactive application and thus "alter the effect of a jury verdict and conviction." Id. at 285. The court certified conflict with the First District's contrary decision in Isaac.
C. The Conflict with Isaac
In light of our decision in Hughes v. State, 901 So. 2d 837, 838 (Fla.2005), that Apprendi does not apply retroactively to cases that were final when it was decided, the Third District in Galindez held that to apply Apprendi and Blakely in a resentencing held after those opinions issued, when the conviction and original sentence were final before they issued, would constitute retroactive application. Galindez, 910 So.2d at 285. In the conflict case, however, the First District held the opposite. See Isaac, 911 So.2d at 814.
Isaac's conviction was final in 1998, and his sentence was final the next year. See id. Subsequently, pursuant to a rule 3.800(a) motion, Isaac's sentence was vacated, and he was resentenced. During the pendency of his appeal from resentencing, he filed motions under Florida Rules of Criminal Procedure 3.850 and 3.800(b) raising claims of Apprendi error. See Isaac, 911 So.2d at 814; Isaac v. State, 826 So. 2d 396, 396 (Fla. 1st DCA 2002). In considering the circuit court's denial of Isaac's 3.850 motion, the First District stated that the "heart" of Isaac's claim was that, by making the factual determination of an escalating pattern of criminal activity *521 in imposing a departure sentence at resentencing, the trial court violated Apprendi, as clarified by Blakely. 911 So.2d at 814. The First District concluded that
as Apprendi was decided prior to the appellant's resentencing, the trial court was bound by its holding. Although this Court previously affirmed the appellant's departure sentence on the basis that Apprendi does not apply so long as a sentence does not exceed the statutory maximum set forth in section 775.082, Isaac, 826 So.2d at 396, the statutory maximum has since been revealed to mean "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S.Ct. at 2537. Therefore, a departure sentence imposed pursuant to the trial court determining a fact by merely a preponderance of the evidence violates the holding of Apprendi as explained by Blakely.
Id. at 814-15; accord Moline v. State, 31 Fla. L. Weekly D701, ___ So.2d ___, 2006 WL 504028 (Fla. 1st DCA Mar.3, 2006), notice invoking discretionary review filed, No. SC06-482 (Fla. Mar. 13, 2006).
Although these two district court decisions clearly conflict regarding the application of Apprendi and Blakely in resentencings held after a conviction is final, we express no opinion on this issue. As we explain below, if it was error not to apply these cases at the resentencing hearing, the error is harmless.
II. APPRENDI AND HARMLESS ERROR
We agree with the State that even if Apprendi and Blakely apply to Galindez's resentencing, any error is harmless beyond a reasonable doubt in this case. Although we have not previously addressed whether Apprendi error may be harmless, we have previously held that it is not fundamental error, and that the error must be preserved for appellate review in order to obtain relief. Hughes, 901 So.2d at 844 ("Finally, concerning Apprendi, we [have] held . . . that a claim of Apprendi error must be preserved for review and we expressly rejected the assertion that such error is fundamental."). Recently, however, the United States Supreme Court addressed the harmless error issue directly. Below, we address (A) the applicable harmless error test, and (B) our conclusion that any error is harmless in Galindez's case.
A. The Applicable Harmless Error Test
The United States Supreme Court has recently addressed whether an Apprendi error can be harmless. In Washington v. Recuenco, ___ U.S. ___, ___, 126 S. Ct. 2546, 2549, 165 L. Ed. 2d 466 (2006), the jury found the defendant guilty of assaulting his wife with a deadly weapon, which the information charged was "a handgun." At sentencing, the judge found that the defendant was armed with a "firearm" and imposed the three-year mandatory sentence enhancement attendant to that finding, rather than the one-year enhancement attendant to the jury's "deadly weapon" finding. On appeal, the State conceded that this violated Blakely and Apprendi, but argued the error was harmless. Id. at 2549-50. The Washington Supreme Court, however, had previously concluded that Apprendi/Blakely error could never be harmless. Id. at 2550 (quoting State v. Hughes, 154 Wash.2d 118, 110 P.3d 192, 205 (2005), which held that Blakely error was structural error requiring reversal). The Supreme Court granted review solely to determine whether harmless error analysis applies to such error.
*522 The Court acknowledged that under Apprendi it "ha[d] treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt." 126 S.Ct. at 2552. Accordingly, the Court found the case before it in Recuenco "indistinguishable from" Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), explaining:
The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of "armed with a firearm" to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.
Recuenco, 126 S.Ct. at 2552.
Because the question of Apprendi/Blakely error also involved judicial factfinding versus jury factfinding, the Court concluded that the harmless error analysis applied in Neder also applied to the error in Recuenco. Id. In Neder, the Court framed the test as follows: "Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?" Neder, 527 U.S. at 18, 119 S. Ct. 1827. The Court concluded that the same harmless error analysis developed in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), and applied in cases concerning the erroneous admission of evidence under the Fifth and Sixth Amendments, also applied to infringement of the jury's factfinding role under the Sixth Amendment. Neder, 527 U.S. at 18, 119 S. Ct. 1827. The Court explained that
a court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is "no," holding the error harmless does not "reflec[t] a denigration of the constitutional rights involved." Rose [v. Clark], 478 U.S. [570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)].
527 U.S. at 19, 119 S. Ct. 1827. For example, in Neder, the jury instructions omitted the element of materiality, a fact which was improperly found by the judge in violation of the right to jury trial. Id. at 18, 119 S. Ct. 1827. The Court found that strong evidence supported the judicial finding and explained that "[i]n a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee." Id. at 19, 119 S. Ct. 1827.
This Court has long applied Chapman's harmless error analysis, which we outlined in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), to claims of failure to instruct on an undisputed element. See Glover v. State, 863 So. 2d 236, 237-38 (Fla.2003) (approving the district court's holding that the age of the defendant is an element of capital sexual battery but that any error in failing to instruct on this undisputed element was harmless); see also State v. Delva, 575 So. 2d 643, 645 (Fla.1991) (stating that the failure "to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error" and is subject to the contemporaneous objection rule).
Finally, in Recuenco, the Supreme Court reversed the Washington Supreme Court's holding that harmless error analysis does not apply to Apprendi error. Accordingly, to the extent some of our pre-Apprendi *523 decisions may suggest that the failure to submit factual issues to the jury is not subject to harmless error analysis, Recuenco has superseded them. See, e.g., State v. Estevez, 753 So. 2d 1, 7 (Fla.1999) (holding that even where the evidence is uncontroverted, to sentence a defendant to a minimum mandatory sentence for trafficking, the jury must make express findings of the amount of cocaine involved); State v. Hargrove, 694 So. 2d 729, 730 (Fla. 1997) (holding that even where evidence regarding the use of a firearm is unrebutted, to impose mandatory minimum sentence, a jury must make that finding); State v. Overfelt, 457 So. 2d 1385, 1387 (Fla. 1984) (holding that to enhance a sentence because of the defendant's use of a firearm, the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used).
We now turn to the question of harmless error in this case.
B. Apprendi Error Is Harmless in this Case
At resentencing, the trial court assessed 200 points for victim injury with regard to Counts I and IV (lewd and lascivious assault) and Count V. Galindez contends that the trial court erred in assessing 80 points as to Count I. Count I charged that "on various occasions" in a four-month period, Galindez "committed an act defined as sexual battery" on a child "by placing his penis in union with . . . and/or penetrating the vagina of A.M. (a minor) with his penis." Galindez claims that because the charge was made in the alternative (and therefore the jury did not specifically find that penetration was involved), the trial court could assess only 40 points for victim injury.[1] The exception in Blakely does not apply because Galindez did not waive the right to factfinding by a jury and did not admit the facts. Blakely, 542 U.S. at 303-304, 124 S. Ct. 2531.[2] Therefore, assuming Apprendi applies to Galindez's resentencing, for purposes of our harmless error analysis the issue is whether the failure to have the jury make the victim injury finding as to Count I contributed to the conviction or sentence in other words, whether the record demonstrates beyond a reasonable doubt that a rational jury would have found penetration. Cf. Delvalle v. State, 653 So. 2d 1078, 1079 (Fla. 5th DCA 1995) (citing DiGuilio and holding that where the defendant alleged that error regarding a *524 lesser included offense deprived him of a jury pardon, "[g]iven the evidence adduced at trial, the error also was harmless, since it is inconceivable that any rational jury could have returned a verdict finding that there was no firearm involved in the commission of the charged offenses").
At trial the young victim, then pregnant by Galindez, testified that she and Galindez engaged in sexual intercourse on multiple occasions over a period of several months. Galindez's confession confirming these facts, including his admission that they repeatedly had sexual intercourse, was admitted at trial. Finally, Galindez's defense at trial was that the twelve-year-old victim consented. Thus, Galindez did not dispute the facts of the sexual relationship at trial, and he did not contest them at resentencing, either.
In light of the clear and uncontested record evidence of penetration regarding Count I, we hold that no reasonable jury would have returned a verdict finding there was no penetration. See Neder, 527 U.S. at 19, 119 S. Ct. 1827 ("[W]here a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee."). Accordingly, we find the error in this case harmless beyond a reasonable doubt.
III. CONCLUSION
For the foregoing reasons, we hold that harmless error analysis applies to Apprendi and Blakely error. Accordingly, we approve the result but not the reasoning of the decision below.
It is so ordered.
LEWIS, C.J., and ANSTEAD, PARIENTE, QUINCE, and CANTERO, JJ., concur.
CANTERO, J., specially concurs with an opinion, in which WELLS and BELL, JJ., concur.
WELLS and BELL, JJ., concur in result only.
CANTERO, J., specially concurring.
I agree with the majority that any violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), or Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), would be harmless error in this case. I write to express my belief that whether Apprendi and Blakely can even be applied at the resentencing of a defendant whose conviction and original sentence became final before those cases were decided depends on whether a new jury can be empaneled to decide facts relevant to sentencing.
We already have held that Apprendi does not apply retroactively. See Hughes v. State, 901 So. 2d 837 (Fla.2005). Presumably, neither does its offspring, Blakely. See, e.g., Hicks v. State, 905 So. 2d 990, 991 (Fla. 3d DCA) (holding that because Apprendi does not apply retroactively, neither does Blakely), review denied, 917 So. 2d 193 (Fla.2005); Burrows v. State, 890 So. 2d 286 (Fla. 2d DCA 2004) (same), review denied, 914 So. 2d 952 (Fla.2005); McBride v. State, 884 So. 2d 476 (Fla. 4th DCA 2004) (same). Nevertheless, we have traditionally held that "resentencing should proceed de novo on all issues bearing on the proper sentence." Morton v. State, 789 So. 2d 324, 334 (Fla.2001) (quoting Teffeteller v. State, 495 So. 2d 744, 745 (Fla.1986)). Therefore, if new juries may be empanelled so that Apprendi and Blakely errors could be remedied entirely within the sentencing framework, then I *525 would agree that applying those cases does not constitute a retroactive application. If, on the other hand, the resentencing court is restricted to the findings of the original jury at the time of the defendant's (now final) conviction, then the "facts" that the sentencing judge may consider are frozen at the time of conviction if the jury did not find it, the judge may not consider it. Under such an interpretation, Apprendi and Blakely no longer affect only the sentencing; they affect the conviction as well because the facts found at that time dictate the sentence. If that is the case, then applying Apprendi and Blakely to a resentencing would "alter the effect of a jury verdict and conviction." Galindez v. State, 910 So. 2d 284, 285 (Fla. 3d DCA 2005). Stated another way, if Apprendi and Blakely reverberate backward to the defendant's conviction, applying those cases to defendants whose convictions already were final constitutes a retroactive application, contrary to our decision in Hughes. Such an approach also would be misguided as a matter of policy (retroactivity, after all, is more a policy question than anything else) because it penalizes the State for pursuing the conviction in accordance with then prevailing law without allowing it a remedy, and because it allows the defendant to benefit from a conviction he has shown no right to reopen.
Below I conclude that (I) if a new jury may be empanelled, the principle of de novo resentencing supports application of Apprendi and Blakely on resentencing; and that (II) if a new jury may not be empanelled, the principle of finality prohibits the application of Apprendi and Blakely on resentencing.
I. The Principle of De Novo Resentencing
We have consistently held that resentencing proceedings must be a "clean slate," Preston v. State, 607 So. 2d 404, 408 (Fla.1992), meaning that the defendant's vacated sentence becomes a "nullity" and his "resentencing should proceed de novo on all issues bearing on the proper sentence." Morton, 789 So.2d at 334 (quoting Teffeteller, 495 So.2d at 745). This means that the trial court must extend to the defendant the "full panoply" of existing procedural protections, State v. Scott, 439 So. 2d 219, 220 (Fla.1983), including any new constitutional protections that have been recognized since the defendant's original sentencing. Before Apprendi and Blakely, the law in this state, as we stated it in Lucas v. State, 841 So. 2d 380 (Fla. 2003), was that "a resentencing is a completely new proceeding. It therefore necessarily follows that a resentencing court is not limited by evidence presented (or not presented) in . . . the original . . . sentencing phase." Id. at 387 (emphasis added) (citations omitted). Rather, both sides are entitled to produce additional evidence. See Mann v. State, 453 So. 2d 784, 786 (Fla.1984) (explaining that at a de novo resentencing "both sides may, if they choose, present additional evidence"). In fact, because resentencing is de novo, the State was required to produce evidence on sentencing issues even if the State established the fact at the original sentencing. This was required whether or not the defendant disputed the issues in the prior sentencing proceeding. See, e.g., Tubwell v. State, 922 So. 2d 378, 379 (Fla. 1st DCA 2006) (stating that because resentencing is de novo, "the state was not relieved of its burden to prove the prior offenses"); Rich v. State, 814 So. 2d 1207, 1208 (Fla. 4th DCA 2002) (holding that at a resentencing, the State must again prove the basis for an enhanced sentence even though such evidence was produced at the original sentencing); Baldwin v. State, 700 So. 2d 95, 96 (Fla. 2d DCA 1997) (stating that at resentencing, the defendant can challenge the prior convictions included on his scoresheet, *526 even though he did not challenge them at the original sentencing).
In addition to the parties' rights to present additional evidence and the State's burden to produce evidence, we also have held that the trial court is not limited to its findings from the prior proceeding, but may make new findings and may even increase the sentence. See Morton, 789 So.2d at 334 (stating that a trial court has "no obligation to make the same findings as those made in a prior sentencing proceeding"); Roberts v. State, 644 So. 2d 81 (Fla.1994) (permitting the resentencing court to include an additional prior conviction on the revised guidelines scoresheet).
The question here is whether Apprendi and Blakely, two recent cases establishing that sentence-enhancing facts must be found by a jury beyond a reasonable doubt, apply on resentencing even though they were issued after the defendant's conviction became final. The defendant argues that the principle of de novo resentencing requires application of those decisions because, as we recently explained, "Apprendi affects only the procedure for enhancing the sentence," Hughes, 901 So.2d at 843, and "does not affect the determination of guilt or innocence." Id. at 841. As the defendant notes, we have traditionally included within the scope of de novo resentencing "all issues bearing on the proper sentence." Morton, 789 So.2d at 334 (quoting Teffeteller, 495 So.2d at 745).
I agree with the defendant that, to the extent that Apprendi and Blakely affect only sentencing, under the principle of de novo resentencing those decisions apply to him. To ensure that result, however that Apprendi and Blakely do affect only the sentencing we must authorize the empanelling of new juries that could find any sentence-enhancing facts previously found by the judge. If such juries are not authorized, and the facts relevant to sentencing are frozen at the moment of conviction that is, no further factfinding is permitted then Apprendi and Blakely do in fact affect the conviction. Without a new jury, the resentencing court would be limited to those facts found by the original jury at the time of the conviction. The State, in turn, would be forever prejudiced by its reliance on the old rule i.e., that sentence-enhancing facts could be found by the judge. When new facts cannot be found and when the parties cannot adapt to the new law, resentencing is not truly de novo. The principle that governs in such circumstances is not that of de novo resentencing, but rather that of finality, which (as I explain in Section II) generally prohibits a defendant from using new laws to obtain relief based on the process leading to a still final conviction.
I would gladly authorize the empanelling of new juries on resentencing so that defendants can receive the protection of Apprendi and Blakely without undermining the finality of their convictions. We already predicted in Hughes that new juries would be necessary to remedy Apprendi errors at resentencing, which was one of our reasons for barring retroactive application of that case. See 901 So.2d at 845 ("In every case Apprendi affects, a new jury would have to be empaneled to determine, at least, the issue causing the sentence enhancement."). It is true that our existing rules do not provide a mechanism for empanelling a jury at the sentencing in a noncapital case. But we do have such a mechanism in death-penalty cases, see § 921.141(1), Fla. Stat. (2005), so the concept is far from foreign. The lack of a corresponding procedure for noncapital cases should not prevent us from creating one, given that it represents the best remedy for the constitutional violation.
*527 When confronted with new constitutional problems to which the Legislature has not yet responded, we have the inherent authority to fashion remedies. See, e.g., In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561 So. 2d 1130, 1133 (Fla.1990) (acknowledging "the inherent power of courts . . . to afford us the remedy necessary for the protection of rights of indigent defendants," but warning that courts may not "ignore the existing statutory mechanism"). To remedy violations of Apprendi and Blakely, we would be entirely justified in adopting a procedure for the empanelling of new juries on resentencing. Nor would we be the first court to do so. See Aragon v. Wilkinson, 209 Ariz. 61, 97 P.3d 886, 891 (Ct.App.2004) (stating that "although the statutory sentencing scheme does not currently provide for convening a jury trial during the sentencing phase of a non-capital case, nothing in our rules or statutes prohibits the court from doing so" and that on remand to resolve any Apprendi or Blakely problem, the trial court "may utilize its inherent authority to convene a jury trial on the existence of facts that may support imposition of an aggravated sentence"); Smylie v. State, 823 N.E.2d 679, 684-85 (Ind.) (holding that to meet Blakely requirements, a jury may be convened to consider sentencing factors), cert. denied, ___ U.S. ___, 126 S. Ct. 545, 163 L. Ed. 2d 459 (2005); State v. Schofield, 895 A.2d 927, 937 (Me.2005) ("Although state law does not specifically provide for a jury trial on sentencing, our recognition of such a procedure is well within our inherent judicial power. . . ."); but see State v. Hughes, 154 Wash.2d 118, 110 P.3d 192, 209 (2005) ("This court will not create a procedure to empanel juries on remand . . . because the legislature did not provide such a procedure and, instead, explicitly assigned such findings to the trial court. To create such a procedure out of whole cloth would be to usurp the power of the legislature."), abrogated on other grounds by Washington v. Recuenco, ___ U.S. ___, ___ n. 4, 126 S. Ct. 2546, 2553 n. 4, 165 L. Ed. 2d 466 (2006).
Nor would the Double Jeopardy Clause bar the impaneling of juries upon resentencing. In the death-penalty context, when a case is remanded for a new penalty phase we regularly allow a new jury to be empanelled. See, e.g., Preston, 607 So.2d at 408; Robinson v. State, 574 So. 2d 108, 112 (Fla.1991); Rose v. State, 461 So. 2d 84, 87 (Fla.1984). Outside of the capital context, the Double Jeopardy Clause is even less demanding with respect to sentencing. As the United States Supreme Court explained in United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980), "double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence," id. at 136, 101 S. Ct. 426, because "a sentence does not have the qualities of constitutional finality that attend an acquittal." Id. at 134, 101 S. Ct. 426. We, too, have concluded that "double jeopardy is not implicated in the context of a resentencing following an appeal of a sentencing issue." Trotter v. State, 825 So. 2d 362, 365 (Fla.2002) (citing Harris v. State, 645 So. 2d 386, 388 (Fla.1994)). Of course, the facts found by a new jury at resentencing cannot conflict with any facts found by the original jury in connection with the defendant's conviction. But in cases like this one, where the jury did not issue any finding concerning a sentence-enhancing fact, no double jeopardy concerns arise.
II. The Principle of Finality
Whereas the principle of de novo resentencing permits the application of new sentencing laws to reopened cases, the principle of finality prohibits retroactive application in most other circumstances. As we have explained, applying every new *528 law to every old case would "destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state . . . beyond any tolerable limit." Witt v. State, 387 So. 2d 922, 929-30 (Fla.1980). The principle of finality avoids those dire consequences by allowing retroactive application only when new rulings "so drastically alter the substantive or procedural underpinnings of a final conviction and sentence that the machinery of postconviction relief is necessary to avoid individual instances of obvious injustice." Id. at 925. We have already evaluated Apprendi under the Witt standard and held that it does not apply retroactively. See Hughes, 901 So.2d at 837. It is safe to assume that Blakely, which "appl[ied] the rule . . . in Apprendi," 542 U.S. at 301, 124 S. Ct. 2531, will not apply retroactively, either. Thus, the defendant clearly has no right to retroactive relief under Apprendi or Blakely.
The question here is whether applying those cases to a resentencing amounts to the same thing. The answer depends largely on when the principle of finality attaches. We have stated on several occasions that finality attaches when the defendant's conviction (not the sentence) becomes final. See Johnson v. State, 904 So. 2d 400, 407 (Fla.2005) (stating "that once a conviction has been upheld on appeal, the State acquires a strong interest in finality"); Goodwin v. State, 751 So. 2d 537, 546 (Fla.1999) ("[O]nce a conviction has been affirmed on direct appeal `a presumption of finality and legality attaches to the conviction and sentence.'" (quoting Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993))). In fact, throughout our opinion in Hughes, we emphasized the affirmance of the conviction as the critical moment for retroactivity purposes. See 901 So.2d at 838 ("In this case, we consider whether a decision of the United States Supreme Court applies to defendants whose convictions already were final when that case was decided."); id. at 839 ("Once a conviction is final, . . . the State acquires an interest in the finality of the convictions."); id. at 840 ("[T]he issue is whether such cases [as Apprendi] can be applied to defendants whose convictions already were final when the decision was rendered.").[3]
The district court took seriously this language from Hughes. See Galindez, 910 So.2d at 285 ("Hughes'[s] focus on the finality of the conviction is very important" (quoting Isaac v. State, 911 So. 2d 813, 816 (Fla. 1st DCA 2005) (Kahn, J., dissenting))). Because the defendant's conviction became final before Apprendi and Blakely, and because he offered no legitimate basis for reopening it, the district court concluded that any application of those two decisions on resentencing would be impermissibly retroactive under the express language of Hughes. See id. at 285. The district court relied heavily on an earlier dissent by Judge Kahn, who observed that under our existing rules of criminal procedure "the factual matters underlying the guidelines departure sentences may not be submitted to a jury." Isaac, 911 So.2d at 815 (Kahn, J., dissenting). Without a new jury, the district *529 court reasoned, "applying [Apprendi and Blakely] to this case would amount simply to a pardon of the defendant for an act he confessed to committing because the rules of the game were deemed to have changed after it was over." Galindez, 910 So.2d at 285.
Certainly, if a sentencing jury can now be empaneled to decide the "sentencing facts," then applying Apprendi and Blakely here would not implicate Galindez's conviction and would therefore not constitute a retroactive application of those cases. On the other hand, if a new jury cannot be empanelled at resentencing, then applying Apprendi or Blakely to defendants whose convictions already were final is retroactive and therefore violates Hughes. In fact, applying Apprendi and Blakely without a new jury is even more disruptive than most retroactive applications. It creates a bizarre paradox: the State is faulted for failing to prove sentence-enhancing facts to the jury at a time when it was not required to do so, yet is barred from proving those facts to a jury once such a requirement has been created. The result is that defendants will obtain relief (i.e., lighter sentences than their behavior warrants) because of defects in the process leading to their convictions, despite the continued finality of those convictions. That is the very essence of retroactive application. It violates the principle of finality that we so adamantly defended in Hughes and contradicts its express language. See 901 So.2d at 838 (describing the issue as whether Apprendi "applies to defendants whose convictions already were final when that case was decided," and then answering no).
III. Conclusion
I agree with the majority that any violation of Apprendi or Blakely would be harmless error in this case, and thus I join in affirming the denial of relief to the defendant. Eventually, however, we will have to decide whether Apprendi and Blakely apply to resentencing proceedings. Already other cases raising the same issue are pending in this Court. I believe the answer to the question is tightly bound with the procedures that would apply at resentencing. If a jury cannot be empaneled to decide the new sentencing facts, then applying Apprendi and Blakely to resentencings undermines the de novo nature of the proceedings and implicates the process leading up to a defendant's still final conviction. It therefore affects more than just the sentencing; it affects the conviction itself, and applying Apprendi and Blakely amounts to a retroactive application, which we expressly prohibited in Hughes.
WELLS and BELL, JJ., concur.
NOTES
[1] Although in his rule 3.800(b) motion Galindez disputed the trial court's assessing any victim injury points, he does not repeat that claim here.
[2] Galindez's confession, which was admitted at trial, would not be an "admission" as contemplated in Blakely. The admissions to which the Court alluded were facts the defendant admits in a guilty plea. Blakely, 542 U.S. at 304, 124 S. Ct. 2531; cf. Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (noting that in determining the nature of the defendant's prior conviction for sentence-enhancing purposes, the sentencer is "generally limited to examining the statutory definition [of the crime], charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented") (emphasis added). Courts have included a defendant's testimony at sentencing and stipulations at trial in this category. See, e.g., United States v. Collier, 413 F.3d 858, 860-61 (8th Cir.2005) (holding "no Sixth Amendment violation" occurred because the defendant "chose to testify [at sentencing] and admitted the facts upon which the court imposed sentence"); United States v. Champion, 234 F.3d 106, 110 (2d Cir.2000) (finding that at trial the defendant stipulated to the quantity of drugs involved in the crime and "he would have been subject to a mandatory minimum sentence of 10 years, in any event"). Galindez's confession at arrest does not constitute an express agreement to a jury or judicial finding.
[3] Lest these statements be dismissed as accidental, I note that the United States Supreme Court, which applies a different retroactivity standard, has also placed emphasis on the conviction. See Teague v. Lane, 489 U.S. 288, 309, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality) ("Application of constitutional rules not in existence at the time a conviction becomes final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.") (emphasis added); see also id. at 301, 109 S. Ct. 1060 (defining a "new rule" as one "not dictated by precedent existing at the time the defendant's conviction became final") (emphasis omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619753/ | 955 So. 2d 1118 (2006)
VANTRAN INDUSTRIES, INC., Robert Salinas and his wife, Lenore Salinas, Appellants,
v.
RYDER TRUCK RENTAL, INC., a Florida corporation, Williams Scotsman, Inc., a foreign corporation, Hank Eldon Rowell, and the Estate of James McCraken, Jr., Appellees.
No. 1D05-4467.
District Court of Appeal of Florida, First District.
December 18, 2006.
*1120 Robert Fraser and Daniel F. Pilka of Pilka & Associates, P.A., Brandon, for Appellants.
Christopher H. McElroy and Michael J. Poché of Allen, Kopet & Associates PLLC, Tallahassee, for Appellees.
PER CURIAM.
In this negligence action, Appellants appeal the trial court's order granting final summary judgment in favor of Appellees and the trial court's order denying their motion for disqualification of the trial judge. We reverse the order granting final summary judgment. We affirm the trial court's order denying Appellants' motion to disqualify the trial judge.
The trial court's decision to grant summary judgment is reviewed de novo. Menendez v. The Palms West Condominium Ass'n, Inc., 736 So. 2d 58, 60-61 (Fla. 1st DCA 1999). Summary judgment is properly granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. at 60. Summary judgment should be cautiously granted in a negligence case. Fenster v. Publix Supermarkets, Inc., 785 So. 2d 737, 739 (Fla. 4th DCA 2001).
Here, the trial court determined that the sudden emergency doctrine applied as a matter of law because Appellee, Hank Eldon Rowell, had no legal duty once he was confronted with a sudden emergency based on McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla.1992). This was error.
The sudden emergency doctrine requires
(1) that the claimed emergency actually or apparently existed; (2) that the perilous situation was not created or contributed to by the person confronted; (3) that alternative courses of action in meeting the emergency were open to such person; and (4) that the action or course taken was such as would or might have been taken by a person of reasonable prudence in the same or similar situation.
Wallace v. Nat'l Fisheries, Inc., 768 So. 2d 17, 18 (Fla. 3d DCA 2000). "The presence or absence of a sudden emergency situation is a question of fact ordinarily to be decided by the jury." Id. at 18. (citing Scott v. City of Opa Locka, 311 So. 2d 825, 826-27 (Fla. 3d DCA 1975)). "So, too, is the issue of whether, under the circumstances, the defendant reacted to the situation in a prudent manner." Id. at 18-19 (citing Cleveland v. City of Miami, 263 So. 2d 573 (Fla.1972)).
When a driver is confronted with a sudden emergency, he is not held to the same standard of care that would otherwise be expected, but neither is he excused from not acting in a reasonable and prudent manner. Dupree v. Pitts, 159 So. 2d 904, 906-07 (Fla. 3d DCA 1964). Once the emergency arises, a driver "is not negligent, provided he has used due care to avoid meeting such an emergency and, after it arises, he exercises such care as a reasonably prudent and capable driver would use under the unusual circumstances, which is usually [a question] for the jury." Id. at 906 (quoting Blashfield, Cyc. of Automobile Law & Practice, Sec. 668, pp. 538-45).
While the trial court was correct that the existence of a legal duty is a question of law, the court erroneously equated the existence of a legal duty with the *1121 breach of a legal duty. See McCain, 593 So.2d at 502. Thus, the trial court erred in finding that Mr. Rowell had no legal duty because he was confronted with a sudden emergency. Under the sudden emergency doctrine, Mr. Rowell had both a duty to act as a reasonably careful and prudent driver in attempting to avoid the unusual situation and a duty in how he reacted to it.
Appellants have introduced evidence that precludes summary judgment. Genuine issues of material fact regarding whether Mr. Rowell acted with reasonable diligence after he was confronted with the sudden emergency exist. Mr. Rowell testified that he braked while traveling through the median, in violation of his training as a truck driver. In addition, an eyewitness testifying as both an expert and a lay witness stated that Mr. Rowell could have stayed in the median if he had slowed down before the time he was confronted with the sudden emergency and if he had not simultaneously braked and steered hard while traveling through the median.
The trial court rejected the eyewitness' testimony, finding that he could not see what he claimed. On summary judgment, however, all facts and inferences must be considered in the light most favorable to the non-moving party. Fenster, 785 So.2d at 739; Bowers v. Cain, 609 So. 2d 61, 62 (Fla. 4th DCA 1992). The jury, not the trial court, could reject the eyewitness' testimony if it believed that he could not see what he claimed. See Deakter v. Menendez, 830 So. 2d 124, 127 (Fla. 3d DCA 2002) (stating that "[t]he court may not encroach on the province of the trier of fact by electing to weigh the evidence or adjudging the credibility of the witnesses" when ruling on a motion for summary judgment) (citing Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000); Bitz v. Ed Knox CLU & Assoc., P.A., 721 So. 2d 823 (Fla. 3d DCA 1998)). Accordingly, we reverse the final summary judgment entered in favor of Appellees and remand for a new trial.
AFFIRMED in part, REVERSED in part, and REMANDED.
WOLF, PADOVANO and THOMAS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619764/ | 955 So. 2d 414 (2006)
Ex parte Ricky V. FULLER and M & M Trucking Company, Inc.
(In re Susan M. Crain and Kurt Crain
v.
Ricky V. Fuller and M & M Trucking Company, Inc.).
1041758.
Supreme Court of Alabama.
October 6, 2006.
Paul M. James, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioners.
Roger W. Pierce and Robert M. Harper of Haywood, Cleveland, Pierce et al., Auburn; and Brian P. Strength and Jock M. Smith of Cochran, Cherry, Givens & Smith, P.C., Tuskegee, for respondents.
*415 PARKER, Justice.
Ricky V. Fuller and M & M Trucking Company, Inc. ("M & M Trucking"), petition this Court for a writ of mandamus ordering the trial court to vacate its order denying their motion to transfer the underlying case from Macon County to Lee County and to enter an order transferring the case. We grant the petition.
I. Facts and Procedural Posture
In December 2004, Susan M. Crain was injured when her car collided with a dump truck in an intersection in Lee County. Susan and her husband, Kurt Crain, sued the driver of the dump truck, Fuller, and his employer, M & M Trucking, in the Macon Circuit Court. Fuller and M & M Trucking moved to transfer the case to the Lee Circuit Court pursuant to Ala.Code 1975, § 6-3-21.1, the forum non conveniens statute, which reads as follows:
"(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein. . . .
"(b) The right of a party to move for a change or transfer of venue pursuant to this statute is cumulative and in addition to the rights of a party to move for a change or transfer of venue pursuant to Section 6-3-20, Section 6-3-21 or Alabama Rules of Civil Procedure."
In support of their motion, Fuller and M & M Trucking noted that the Crains, M & M Trucking, most of the witnesses, all of the evidence in its various forms, and the accident site are in Lee County. Fuller also works in Lee County, although he resides in Macon County. The Macon Circuit Court denied the motion to transfer, and Fuller and M & M Trucking filed this petition for the writ of mandamus. We grant the petition.
II. Standard of Review
"A writ of mandamus is a
"`drastic and extraordinary writ, that will issue only where there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.'"
Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002) (quoting Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala.1993)). Mandamus is the appropriate device by which to challenge a trial court's decision on a motion for a change of venue. Ex parte Sawyer, 892 So. 2d 919 (Ala.2004). Furthermore, "[t]his Court reviews mandamus petitions seeking review of a venue determination by asking whether the trial court exceeded its discretion in granting or denying the motion for a change of venue." Ex parte Perfection Siding, Inc., 882 So. 2d 307, 310 (Ala.2003) (citing Ex parte Scott Bridge Co., 834 So. 2d 79, 81 (Ala.2002)). "Also, in considering such a mandamus petition, this Court is limited to those facts that were before the trial court." Ex parte Perfection Siding, Inc., 882 So.2d at 310 (citing Ex parte Pike Fabrication, Inc., 859 So. 2d 1089, 1091 (Ala.2002)).
III. Analysis
Fuller and M & M Trucking have properly invoked the jurisdiction of this Court, and they have no other adequate legal remedy to protect them from the potential consequence of an inconvenient forum or the injustice that could result from denial of the petition for a writ of mandamus in this case. Accordingly, we must determine whether Fuller and M & *416 M Trucking have a clear legal right to the order sought.
Section 6-3-21.1(a), Ala.Code 1975, provides:
"[A]ny court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed. . . . "
(Emphasis added.) Under Ala.Code 1975, §§ 6-3-2 and -7, venue is appropriate in either Macon County or Lee County; therefore, Fuller and M & M Trucking must demonstrate either that Lee County is a more convenient forum than Macon County or that having the case heard in Lee County would more serve the interest of justice before this Court will issue the writ of mandamus. They argue in their petition that both conditions are met in this case. In order for the writ to issue, Fuller and M & M Trucking need establish only that the Macon Circuit Court exceeded its discretion in deciding either that Lee County was not a more convenient forum or that the interest of justice would be better served if venue remained in Macon County. Thus the issue before this Court is whether the Macon Circuit Court exceeded its discretion in refusing to transfer the case to Lee County when the only connection the case has to Macon County is the residence of one of the defendants and when the substantial evidence supporting the transfer to the allegedly more convenient forum has been unopposed.
This Court has held that litigation should be handled in the forum where the injury occurred. Ex parte Sawyer, 892 So. 2d 898, 904 (Ala.2004) (citing Ex parte Mitchell, 690 So. 2d 356, 359 (Ala.1997)). Furthermore, "[t]he defendant must show that his inconvenience and expense in defending the action in the selected forum outweigh the plaintiff's right to choose the forum; that is, the defendant must suggest transfer to a county that is `significantly more convenient' than the county in which the action was filed." Ex parte Perfection Siding, 882 So.2d at 312. See also Ex parte Townsend, 589 So. 2d 711, 715 (Ala. 1991), and Ex parte Pearson Mgmt. Co., 667 So. 2d 48, 49 (Ala.1995).
In Ex parte First Family Financial Services, Inc., 718 So. 2d 658 (Ala.1998), this Court addressed the plaintiff's attempts to file a complaint in a county outside her home county. This Court noted the facts that, in the interest of justice, justified the issuance of the writ compelling the trial court to transfer the matter to the plaintiff's home county, which was also the county where the complained-of actions occurred:
"First Family maintained no office, and kept no documents, in Marengo County. Ramsey did not live in Marengo County. No meetings between First Family and Ramsey had occurred in Marengo County. In fact, all meetings between Ramsey and employees of First Family had occurred in Dallas County, in which First Family's office is located and where First Family desires to have the case transferred."
718 So.2d at 662. This Court also stated in Ex parte First Family:
"Although we recognize that a plaintiff should be given great latitude in choosing a forum, we also recognize that one of the reasons the United Judicial System was established, and one of the reasons the Legislature adopted § 6-3-21.1, was to promote `justice.' We believe it clear, under the facts of this case, that `the interest of justice' requires that it be transferred."
718 So.2d at 662.
In Ex parte Independent Life & Accident Insurance Co., 725 So. 2d 955 (Ala. *417 1998), this Court required the transfer of a breach-of-contract and fraud action from Lowndes County to Montgomery County based upon these facts:
"In this present case, all of the transactions at issue took place in Montgomery County; the plaintiffs live in Montgomery County; the three agents all work out of Independent Life's Montgomery office; and, based on what is before us, it appears that the one agent who lives in Lowndes County did not sell any of the policies at issue, and, at most, played a minor role in the events giving rise to this action. Furthermore, it appears that each of that defendant's conversations with the plaintiffs took place at their house in Montgomery County, not in Lowndes County. From what is before this Court, therefore, it appears that this case has no nexus with Lowndes County that would justify burdening that county with the trial of this case."
725 So.2d at 957.
The Crains seem to place much weight on the distance that parties and witnesses would have to travel and the geographical proximity of the counties and not on other considerations. This Court has held that distances to courthouses and proximity of witnesses and parties to the forum venue are not the definitive considerations for the trial court in addressing a venue motion under the forum non conveniens statute. Ex parte Employers Modern Life Co., 772 So. 2d 433, 436 (Ala.2000) ("Furthermore, the geographical proximity of Jefferson and Walker Counties does not affect our determination that the `interest of justice' requires a transfer."); and Ex parte First Family Fin. Servs., Inc., 718 So.2d at 662.
In Ex parte National Security Insurance Co., 727 So. 2d 788 (Ala.1998), this Court issued a writ of mandamus directing the trial court to transfer an action from Lowndes County to Elmore County based on the following facts: When the action was filed, the defendant "maintained no office, and kept no documents, in Lowndes County"; the plaintiff "did not live in Lowndes County"; "[n]o meetings between [the defendant] and [the plaintiff] occurred in Lowndes County"; "all meetings between [the plaintiff] and employees of [the defendant] occurred in Elmore County"; the defendant's office was located in Elmore County; the plaintiff "was treated in Elmore County for her alleged mental anguish"; all of the plaintiff's witnesses lived in Elmore County; and none of the witnesses for either party lived in Lowndes County. 727 So.2d at 790. This Court concluded: "Under these circumstances, the `interest of justice' requires the transfer of the action from a county with little, if any, connection to the action, Lowndes County, to the county with a strong connection to the action, Elmore County." 727 So.2d at 790. Distance alone does not trump all other considerations in deciding whether a forum is a more convenient forum under the statute.
Although we do not consider a lack of significant distance between the forums to be fatal to a finding that an alternate forum is more convenient under § 6-3-21.1, the Court is not stating that the distance in this case is, in fact, insignificant. However, that factor alone, if established, is not necessarily dispositive in determining that one venue is significantly more convenient so as to support the conclusion that a trial court exceeded its discretion in denying a motion for a change of venue made pursuant to § 6-3-21.1.
Although one of the eyewitnesses to the accident resides in Macon County, the same witness signed an affidavit declaring that Lee County would be a more convenient forum for him, based on the location *418 and schedule of his work. The Crains, M & M Trucking, most of the witnesses, all the evidence in its various forms, and the accident site are all in Lee County. Fuller, who resides in Macon County, works in Lee County. Thus, Fuller and M & M Trucking have established that the interest of justice requires a transfer of this case to Lee County. They have a clear legal right to the order sought.
IV. Conclusion
The Macon Circuit Court exceeded its discretion in declining to grant Fuller and M & M Trucking's motion for a change of venue. Accordingly, we issue the writ of mandamus and order the trial court to grant the motion and to transfer this case to the Lee Circuit Court, where it may "proceed as though originally filed therein."
PETITION GRANTED; WRIT ISSUED.
NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, STUART, SMITH, and BOLIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619769/ | 955 So. 2d 903 (2007)
Dennis Neal WILKERSON, Appellant/Cross Appellee
v.
Kathy Ray Youngblood WILKERSON, Appellee/Cross Appellant.
No. 2005-CA-01382-COA.
Court of Appeals of Mississippi.
January 9, 2007.
Rehearing Denied May 8, 2007.
*905 John C. Jopling, J. Randolph Lipscomb, Columbus, attorneys for appellant.
John W. Crowell, Columbus, Kristen E. Wood, attorneys for appellee.
EN BANC.
GRIFFIS, J., for the Court.
¶ 1. Dennis Neal Wilkerson ("Dennis") filed a petition for clarification of his child support obligations. Kathy Ray Youngblood Wilkerson ("Kathy") responded and filed a counter-petition for clarification of the property distribution. The chancellor entered a judgment that considered both petitions and clarified the earlier judgment. On appeal, Dennis argues that the chancellor: (1) exceeded his jurisdictional authority, (2) contravened well-established principles of equity, (3) did not follow the law of equitable distribution, and (4) entered a judgment that "exceeds the findings of the lower court." On cross-appeal, Kathy argues that the chancellor erred when he found that the children's expenses incurred for counseling and dental braces were not necessary medical expenses. We affirm on direct appeal and affirm in part and reverse and render in part on cross appeal.
*906 FACTS
¶ 2. On August 25, 1995, Kathy was granted a divorce from Dennis. According to the judgment, Kathy was awarded physical custody of Neal and Seth. Dennis was ordered to pay child support and was awarded visitation. The chancellor found that the marital home and Dennis's business, Wilkerson, Inc., were marital property. The chancellor awarded Kathy the marital home, and ordered Dennis to pay a share of the mortgage. In exchange, the chancellor awarded Dennis the business, free and clear of Kathy's interest.
¶ 3. On June 21, 2004, the chancellor found Dennis in contempt for failing to provide medical insurance for Neal and Seth. The chancellor increased Dennis's child support payments and ordered Dennis to pay for all his sons' medical expenses that were not covered by health insurance. The chancellor denied Dennis's request for a change of custody.
¶ 4. A few months later, Dennis filed a motion to clarify whether he was obligated to pay for his sons' counseling and Neal's dental braces. Kathy filed a counterclaim to determine whether Dennis had fulfilled his obligations to pay a portion of the mortgage payments on the former marital home. Dennis insisted that his financial obligation on the house would cease in March of 2005, when his monthly payments of $304.47 would total $35,000.
¶ 5. On June 14, 2005, the chancellor found that the children's counseling expenses and Neal's braces were not medically necessary; therefore, Dennis did not have to pay for them. The chancellor found that Dennis's mortgage obligation was $300, not $304.47, per month. The chancellor further ruled that Dennis's obligation to pay $300 a month would cease in August of 2018, when his total payments equaled $82,800. Since he only paid $290.42 in March 2005, he was held in arrears $9.58. The chancellor further ruled that this arrearage would be offset by the $4.95[1] overpayments Dennis had made between the date of divorce and February of 2005.
STANDARD OF REVIEW
¶ 6. A chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So. 2d 623, 625(¶ 8) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So. 2d 719, 721(¶ 5) (Miss.2002).
ANALYSIS
I. Did the chancellor misinterpret his prior order on property division?
¶ 7. Although Dennis styles his appeal as four different issues, his argument under each issue is that the chancellor misinterpreted the 1995 judgment regarding Dennis's mortgage payments and, in the alternative, that the property division was against the law. Specifically, Dennis argues that the original judgment ordered him to pay a total of $35,000, over time, without interest. Kathy countered that the chancellor properly interpreted his prior decreethat Dennis was responsible for $35,000 in principal, plus interest.
*907 ¶ 8. The 1995 opinion of the chancellor determined that the marital home was worth $95,000, and it carried an $81,000 mortgage. The chancellor further found the monthly mortgage payment to be $600. As for Wilkerson, Inc., based on the varied evidence of value that Dennis presented, the chancellor found the value ranged between $50,000 and $85,362. The opinion provided:
The Court finds that it may best accomplish equity under these circumstances by awarding the mother the title to the marital home . . . and requiring the father to make one half of the $600 per month mortgage payment, until a date certain, known as Jubilee, and calculated based upon the following formula, to-wit: Using the total number of remaining mortgage payments from September 1, 1995 until maturity of the mortgage, as the baseline, which equals 100%; the Defendant[']s obligation to pay one half of the monthly mortgage payment shall terminate when the remaining number of monthly payments due and payable equals 14% of the baseline. If the mortgage is paid in advance of Jubilee, the father will be indebted to the mother for the remaining payments as they would have otherwise accrued. This results in the father paying a portion of his one half of his existing debt under the mortgage and increasing the equity value of the mother's ownership of the home in an amount fairly representative of her equity in the tobacco business. Upon the father's payment of his required portion of the mortgage, the mother will have received from the father, value in the sum of $42,000.00 based upon current values ($7,000.00 equity and $35,000.00 principal on the mortgage). The father will be allowed to pay this value to the mother during the life of the mortgage at $300.00 per month from his earnings at Wilkerson, Inc., and the father will receive Wilkerson, Inc. free and clear of any interest of the mother. The full current value of Wilkerson, Inc. is released to the father free of any claim of the mother, and this represents a value to the father of up to one half the value of the stock. Depending upon which of the father's valuations of the stock is used, the value to him of this release would vary from $30,000.00 to $42,000.00.
(emphasis added). This opinion was based on the evidence presented at the original divorce trial that the monthly mortgage payments were only $600 a month. The chancellor assumed the mortgage was a regular thirty-year, amortized loan.
¶ 9. Kathy's petition to clarify asked the chancellor to clarify the date of "Jubilee,"[2] and therefore whether Dennis had satisfied his mortgage obligations. At the hearing, additional evidence on the mortgage was offered. In the June 14, 2005 judgment, the chancellor explained Dennis's mortgage obligations:
In its judgment of divorce entered in August 1995, [Dennis] was ordered to pay [Kathy] $300.00 per month beginning in September 1995 until the Jubilee payment. The calculation of Jubilee was meant to be a date certain based upon a formula created by the Court. The formula was based upon the remaining payments on the mortgage balance of $81,000.00 at $600.00 per month without balloon. The Court was not provided the interest rate or the number of payments or it would have stated them and calculated the Jubilee date. The Court assumed it was a straight amortization but apparently was not provided with *908 the beginning principal of the debt or the original number of payments, whether 240 or 360, etc. On a thirty-year mortgage there would have been 340 payments remaining and that would establish the baseline. Jubilee was set at the payment that left only 14% of the payments remaining.
Footnote 1 The 14% applied to the baseline (the total number payments to amortize $81,000.00 at $600.00 per month) is the approximation of the remaining payments that are to be made by [Kathy] solely. The 14% number is the ratio of $11,000.00 to $81,000.00 rounded to the nearest percent. The actual balance on the debt was approximately $84,000.00 not $81,000.00. The formula includes interest in excess of interest on an amortization of $35,000.00.
The formula was based upon the following specific findings: The balance on an existing mortgage was $81,000.00 and the monthly mortgage payments were $600.00. The value of the marital home was $95,000.00. The unstated finding was that each mortgage payment was equal until maturity. Therefore, Jubilee is calculated based upon extending the payments in equal amount ($600.00) until the debt is paid in full. [Dennis]'s obligation continued until the payment at the 86th percentile. Using $81,000.00 and $600.00 per month at 7.75% from September 1995 until final payment is 320 payments. The 86th percentile is payment 276 in August 2018.
Footnote 2 Using the actual balance and payment amount would make the Jubilee payment the 292nd payment in December 2019. The Court will follow its findings rather than the new information now provided that the balance and payment amounts were inaccurate.
This mortgage was on the former marital home that was awarded to [Kathy]. The Court thought that the mortgage debt was amortized, but it was not. After 23 monthly payments of $608.95, the 24th payment on December 29, 1995, was a balloon payment of the remaining principal and interest. Neither party returned to court when that event occurred. . . . In March 2005, [Dennis] asserts that he has paid the $35,000.00 in monthly principal installments and Jubilee has arrived. [Dennis] asserts that . . . no interest was owed on this obligation.
[Dennis] is in error. The Court awarded [Kathy] approximately $35,000.00 payable with interest over time until Jubilee. The interest rate on the existing mortgage was 7.75%. However, an amortization of $35,000.00 at 7.75% payable at $300.00 per month beginning with a payment in September 1995 does not alternatively calculate the date of Jubilee. The day of Jubilee is calculated by the formula as directed by the 1995 judgment and yields a different interest rate than 7.75% and a different date than using the original promissory note rate and principal. . . . [In a footnote, the court stated, ". . . If you use $35,000.00 for principal, the actual interest rate is 8.96%."]
. . . The date of Jubilee was established in 1995 to be the 276th payment in August 2018. . . . The total owed by [Dennis] based upon the judgment of 1995 remains $300.00 per month for 276 payments.
¶ 10. In Prescott v. Prescott, 736 So. 2d 409, 416 (¶¶ 33-35) (Miss.Ct.App.1999), this Court reviewed a chancellor's interpretation of his own order. In 1995, the chancellor entered an order for temporary support to be paid until further notice. Id. at 416 (¶ 33). On December 20, 1996, the chancellor issued an opinion granting the *909 divorce and setting out payment distributions. Id. The final judgment on this opinion was not entered until February. Id. The parties disputed over whether the December opinion or the February judgment constituted further notice. Id. at (¶ 34). The chancellor found that the December opinion terminated the husband's temporary support obligation. Id. at 416-17 (¶ 36). We affirmed and held that, "[s]ince temporary support was to continue until further order, and the chancellor declined to interpret his December 20, 1996 letter opinion as continuing the temporary support, we find that to be within his discretion." Id. at 417 (¶ 36).
¶ 11. Here, the chancellor acted within his discretion by interpreting his 1995 judgment to mean $35,000 over time with interest. In the original 1995 opinion, the chancellor spoke in terms of current values. He did not award Kathy the total sum of $35,000, but rather the present (1995) value of $35,000. He ordered this current value of $35,000 would be paid over time. The time value of money is reflected in interest payments. If Dennis were ordered to pay $35,000 in a lump sum, this would equal the value of $35,000 to Kathy in 1995. In order to pay Kathy the equivalent value of $35,000 over time, Dennis would be required to pay $35,000 plus interest.
¶ 12. Furthermore, the 1995 judgment contemplates that Kathy and Dennis would pay the first eighty-six percent of the mortgage debt fifty/fifty. As for the last fourteen percent of the mortgage, Kathy will bear that cost alone. This is likewise the result of the 2005 clarification. Accordingly, we find no error in the chancellor's decision on this issue.
II. Did the chancellor err in dividing the property?
¶ 13. Dennis also makes several arguments that the ordered payments go against the law of equitable distribution. Kathy responds that Dennis is procedurally barred from bringing these arguments and that the chancellor's judgment was based on both the facts and the law. We agree.
¶ 14. The remainder of Dennis's arguments attack the chancellor's decision in the 1995 opinion and judgment. These issues are raised for the first time in this appeal. For ten years after the original opinion and judgment, and even at the hearing on the petitions for clarification, Dennis never argued that the chancellor was without authority to require Dennis to pay his portion of the property division out over time. All Dennis argued was that he had made all the monthly payments required of him. Dennis is therefore procedurally barred from raising these arguments on appeal. Jurney v. Jurney, 921 So. 2d 372, 377 (¶ 19) (Miss.Ct.App.2005).
¶ 15. Procedural bar notwithstanding, Dennis's arguments are without merit. First, Dennis argues that the chancellor acted outside his authority by awarding Kathy an amount greater than for which she pled. The record reveals that Kathy did not plead for a specific judgment amount, neither in the original divorce nor in her counter-petition for clarification. In her counter-petition, she merely asked the chancellor to specify the date of Jubilee. She did not put forward any interpretation of her own as to when that would be. Dennis, however, points to a post-trial letter from Kathy's attorney to the judge and to Dennis's attorney. Dennis claims that in this letter Kathy pleads that she is entitled to $21,616.02 more in mortgage payments. This is not true. Kathy's attorney makes an argument that the payments extend well beyond what the chancellor eventually would order. In the *910 alternative, Kathy's attorney asserts that even accepting Dennis's interpretation, Dennis still owes $21,616.02.
¶ 16. Second, Dennis argues that the chancellor acted outside his jurisdiction by dividing non-marital property. Dennis reasons that since he is using cash earned after the marriage to pay Kathy, then Kathy is getting Dennis's separate property and not marital property. This ignores what Dennis purchased with these payments. Indeed, Dennis was paying Kathy for her interest in Wilkerson, Inc., which was marital property. The money for the payment came from Dennis's earnings at Wilkerson, Inc. Moreover, the payments were used to decrease a marital debt and increase Kathy's equity in the former marital residence.
¶ 17. Third, Dennis argues that the property division award "is in effect an award of alimony without the required consideration" of the Armstrong factors. Dennis gives no basis for this characterization, except for the fact that the award results in monthly payments. The judgment is clear that the award was to compensate Kathy for her share of marital property, i.e., stock in Wilkerson, Inc. Clearly, the payment was for property division, not alimony. Unlike alimony, the payment was not contingent upon Kathy's remarriage or Dennis's death. In fact, the payment was not contingent upon anything. It was a fixed amount, financed for a fixed period of time, to compensate Kathy for her share of the marital property.
¶ 18. Finally, Dennis cites Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994), and argues that equitable division must be used to "eliminate periodic payments." Therefore, he reasons that the chancellor was without power to order periodic payments. Ferguson sets out a list of factors chancellors must consider in dividing marital property. Id. at 928. One of many factors is "[t]he extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties." Id. (emphasis added). In other words, where a spouse's property rights increase, his or her alimony recedes. Id. at 929. Rather than require a lump sum payment for property distribution, the chancellor allowed Dennis to finance his property division obligation through monthly payments. Ferguson does not prohibit this arrangement. Accordingly, we find no merit to this issue.
III. Is Dennis obligated to pay for his sons' counseling and Neal's braces?
¶ 19. Kathy argued that Neal and Seth's counseling and Neal's braces are reasonable medical expenses, and Dennis was obligated to pay these expenses. In the alternative, she argued that she was entitled to a modification of child support to cover these expenses. Dennis counters that the chancellor's order was supported by substantial credible evidence, and there was no material change in circumstances.
A. Counseling expenses
¶ 20. On October 5, 2004, Neal and Seth had separate, psychological counseling sessions with Dr. Debbie K. Wells of Wells Counseling Associates, Inc. Kathy testified the reason for the sessions were Neal and Seth's feelings associated with Dennis's lawsuit to take custody away from Kathy and with Dennis's refusal to exercise visitation since losing that custody battle. She testified that Neal and Seth, who expressed a desire to stay with her, had been feeling guilt placed upon him by their father. The bill, in the amount of $170, was admitted into evidence. This bill was for one session each with Neal and Seth. The boys had only one session each *911 between October 5, 2004 and the trial of this matter on May 26, 2005. The chancellor denied payment of the counseling bill, because he found Kathy "offered no proof that the one counseling bill of $170.00 was medically necessary."
¶ 21. Psychological counseling is a medical expense which may be assessed against a non-custodial parent. Martin v. Martin, 538 So. 2d 765, 767 (Miss.1989). See also Miss.Code Ann. § 43-19-103(a) (Rev.2004). The custodial parent has the inherent discretion to determine the child's medical needs. Clements v. Young, 481 So. 2d 263, 267 (Miss.1985). This discretion is limited by reasonableness. Id. For the non-custodial parent to be assessed with the expense, it must be reasonably necessary and reasonable in amount. Id.
¶ 22. Evidence that a medical bill has been paid or incurred is prima facie evidence that it is reasonable and necessary. Miss.Code Ann. § 41-9-119 (Rev. 2005); Clements, 481 So.2d at 267-68. This prima facie showing may be rebutted by the non-custodial parent. Id. at 269.
¶ 23. The bill Kathy submitted into evidence was sufficient to meet her prima facie case. However, Dennis established that the boys only went to counseling one time. The chancellor determined that this was substantial credible evidence to support a finding that the counseling was not medically necessary in the first place, because Dr. Wells did not order any follow up treatment. Although we might have concluded this differently, we cannot say that this was an abuse of the chancellor's discretion.
¶ 24. In the alternative, Kathy argues that she is entitled to a child support modification to require that Dennis pay the counseling bill. "To obtain a modification in child support payments, there must be a `substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified.'" McEwen v. McEwen, 631 So. 2d 821, 823 (Miss.1994) (quoting Gillespie v. Gillespie, 594 So. 2d 620, 623 (Miss.1992)). To determine whether a material change has occurred, courts examine the following factors: (1) increased needs of older children, (2) an increase in expenses, (3) inflation, (4) a child's health and special medical or psychological needs; (5) the parties' relative financial condition and earning capacity; (6) the health and special needs of the parents; (7) the payor's necessary living expenses; (8) each party's tax liability; (9) one party's free use of a residence, furnishings, or automobile; and (10) any other relevant facts and circumstances. Tedford v. Dempsey, 437 So. 2d 410, 422 (Miss. 1983). The change must have been unforeseeable since the most recent order. McEwen, 631 So.2d at 823.
¶ 25. In Clark v. Myrick, 523 So. 2d 79, 81 (Miss.1988), the supreme court declined to consider a child's need for psychological counseling in a mother's argument for modification, where the child support decree already assessed the father with all medical expenses. We likewise find no need to entertain Kathy's modification argument, as Dennis is already liable under the existing order for all reasonable and necessary medical expenses.
¶ 26. Accordingly, we find that there was substantial credible evidence to support the chancellor's finding that the counseling was not medically necessary. This finding would not avail Kathy under the existing decree nor under a modification analysis, as she has failed to show that Neal and Seth have "special psychological needs." Therefore, we find that this issue lacks merit.
B. Neal's braces
¶ 27. Braces are a medical expense for which a non-custodial parent is *912 liable, so long as it is reasonably necessary for the child's health and well being, including mental and physical, and are the proper treatment. Smith v. Smith, 405 So. 2d 896, 897-98 (Miss.1981). Whether or not braces are reasonably necessary is a question of fact. Id. at 898.
¶ 28. In 2001, Dennis had his own braces adjusted by Dr. Charles Atkins. Dennis asked Dr. Atkins to assess whether or not Neal would need braces in the future. Dr. Atkins went out in the waiting room and looked at Neal's teeth. Dr. Atkins noticed that Neal had an overbite, which he inherited from Dennis. Dennis testified that as a result of this consultation, he was under the impression that Neal did not need braces. Dr. Atkins testified that, while Neal had an overbite at the time, he considered Neal too young for braces.
¶ 29. In 2004, Neal's dentist Dr. Susanne Nichols recommended that Neal see an orthodontist about braces. Kathy discussed this with Dennis, and Dennis offered no objection. He said only that he had made arrangements for payment with Dr. Atkins's office.
¶ 30. On September 21, 2004, Dr. Atkins began treating Neal for an overbite, eventually putting braces on Neal's teeth. By affidavit submitted and entered into evidence, Dr. Atkins testified that the procedure for Neal was both cosmetic and medical. Specifically, the medical benefits were "reduced periodontal involvement, fewer cavities and a lessened chance of joint dysfunction."
¶ 31. In his trial testimony, Dr. Atkins testified that, without the braces:
the odds are definitely that [Neal] would have more periodontal involvement because of the crowding, that he would have some cavities that he normally wouldn't have if his teeth were straight. And there's less chance of dysfunction because you've got the teeth functioning correctly. But there's no way for me to tell you that we're definitely going to get that in this particular case. But as a general rule, that's pretty true.
When asked what was the primary reason for Neal's braces, Dr. Atkins testified:
Well, he has a deep bite. Showed no lower anterior teeth, which causesin the future, it usually causes problems with the joints. Not usually, but it occurs much more frequently in a deep bite case than a normal bite case. It would improve his smile. It would get rid of the crowding so that he could brush and floss his teeth ideally.
¶ 32. The chancellor denied payment for the braces, because Kathy "has failed to establish that the instant braces are a medical expense." We find this to be error. Dr. Atkins's testimony went uncontradicted. Dr. Atkins testified that Neal's braces were needed for medical reasons. The chancellor's finding otherwise was therefore not supported by substantial credible evidence. We reverse and render. We find that Dennis is liable for payment of all medical expenses related to Neal's braces.
¶ 33. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY IS AFFIRMED ON DIRECT APPEAL AND AFFIRMED IN PART AND REVERSED AND RENDERED IN PART ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
NOTES
[1] This appears to be a clerical error as Dennis's overpayments were only $4.47 per month.
[2] The term "Jubilee," as used here, comes from the biblical concept known as the Year of Jubilee, which is a year of celebration and forgiveness. See Leviticus 25:8-54. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619761/ | 955 So. 2d 1165 (2007)
Eric WASHINGTON, Appellant,
v.
STATE of Florida, Appellee.
No. 1D05-3690.
District Court of Appeal of Florida, First District.
April 30, 2007.
*1166 Nancy A. Daniels, Public Defender, and Kathleen A. Stover, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, Felicia A. Wilcox, Assistant Attorney General, and Robert R. Wheeler, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
PADOVANO, J.
In this criminal appeal, the defendant contends that the trial judge erred in excusing a juror and replacing her with an alternate. The trial judge permitted the jurors to submit questions to be asked of the witnesses but removed the juror in controversy on the ground that her questions violated the court's instructions. This, we conclude, was an abuse of discretion. Although the juror asked many questions, there was nothing in her questions to suggest that she intended to disobey the trial court's instructions or that she was otherwise unable to serve as a fair and impartial juror. Because the error in removing the juror was not harmless, we reverse the defendant's convictions and remand the case for a new trial.
The defendant, Eric Washington, went into the Tallahassee State Bank on December 23, 2003, to exchange some coins for paper currency. Bank officials suspected that the coins were counterfeit or that they might have been stolen, and the ensuing confrontation led to the defendant's arrest. The state did not charge the defendant with any offense relating to the coins, but the incident at the bank resulted in other criminal charges. The state filed a three-count information accusing the defendant of resisting arrest with violence, possession of cocaine and possession of marijuana.
At the beginning of trial, the judge informed the jurors that they would be permitted to ask questions of witnesses after the attorneys had completed their examination. The judge told the jurors that they could write questions on a piece of paper but that they should not include their names or juror numbers. The pertinent part of the judge's instruction is as follows:
Because questioning witnesses is the primary responsibility of the attorneys, you are not encouraged to ask large numbers of questions. Keep in mind that the attorneys know the case better than you or I and each of them will be attempting to place before you all the evidence needed to assist you in reaching a proper verdict.
If you do opt to ask any questions, keep in mind that the questions must be directed to the witness and not to the attorneys or to myself. The purpose of the question should be to clarify the *1167 evidence, not to explore theories of your own, nor to discredit a witness.
The first witness, Nicole Hill, a teller, testified that the defendant told her the coins were twenty-dollar gold coins. Ms. Hill passed the coins to her supervisor, Ms. Glenn Parramore, who then summoned the security officer, Leon County Deputy Sheriff Toby Bruce. Deputy Bruce took the defendant to an empty office, and a short time later Ms. Hill saw the defendant running out of the office with Deputy Bruce and another officer in pursuit. The other officer grabbed the defendant's jacket, but the jacket came off, and the defendant continued running. The three men ran out of Ms. Hill's line of sight, but she could hear the defendant yelling in a scared voice, "Please help me, I didn't know they were stolen, I'm hungry, I just wanted food."
When the attorneys finished questioning Ms. Hill, the trial judge asked if jurors wanted to write down any questions, adding, "Don't make any comment on the facts. . . . Simply a question, if you need some clarification. . . . You will get the `what happened next' from the other witnesses. So this would just be to clarify what this witness said." Outside the jury's hearing, the judge indicated that he had been given a question: "What happened to the video camera and the drugs?" The judge said he presumed Ms. Hill could not answer, so he declined to ask.
Ms. Glenn Parramore, the assistant vice president of the bank, gave an account similar to the one given by Nicole Hill. Ms. Parramore was questioned in more detail about the bank cameras. She testified that there were thirteen cameras positioned in the bank. She added, however, that the cameras rotate and that they would not necessarily cover every part of the bank lobby at every moment.
When the lawyers had finished questioning Ms. Parramore, the trial judge received the following questions from a juror: "Where are the cameras from that day? Where did he get the coins from? Were the coins stolen? Why didn't they ask him to leave?" After consulting with counsel, the trial judge asked only the first question, whether the bank still had the videotape from that day. Ms. Parramore said they did not, because they record over their videotapes every six weeks. The videotape for that day was recorded over, because the bank was not considered a victim in this case and the bank officers did not realize they needed to keep it.
After Ms. Parramore was excused, the trial judge instructed the jurors once again on the procedure he wanted them to follow in asking questions:
All I want is a question. And remember the question needs to be just to clarify this witness' testimony. Don't send us questions about something this witness doesn't know anything about as to what some other witness might know. If you need clarification of the subject matter of this witness' testimony, feel free to ask. But, obviously, for instance, her testimony was she didn't talk to the defendant, don't ask questions about what he said. I mean, those kind of things, it would have to be by some other witness. It just eats up time if we are asking questions that aren't to clarify this witness' testimony.
Deputy Toby Bruce testified that the defendant told him he found the coins on a shelf in an apartment. According to Deputy Bruce, the defendant was nervous, jittery and hyper. Deputy Bruce called Sergeant Steve Harrelson, who was more familiar with coins. He also called the dispatch operator to get more information about the coins and to run a routine check on the defendant. As Sergeant Harrelson *1168 was arriving, the dispatch operator told Deputy Bruce that there was an outstanding arrest warrant for the defendant for failure to pay child support. At that point, the defendant jumped up and ran from the office.
The officers chased the defendant through the lobby of the bank. Sergeant Harrelson grabbed the defendant by his jacket, the jacket came off, and the defendant continued to run. The officers managed to subdue the defendant, but by that time he was down a hallway of the bank, beyond the view of those who were in the lobby. Deputy Bruce testified that he and Sergeant Harrelson had their hands on the defendant and they all went down to the floor. The defendant then began "flailing his arms and legs, kicking his legs about," and Deputy Bruce was kicked several times. Deputy Rick Parraro, who had arrived at the scene by then, handcuffed the defendant. The officers found cocaine in the defendant's jacket and later found marijuana on his person when he was booked into the jail.
When the attorneys finished questioning Deputy Bruce, the trial judge informed them that he had received the following juror questions: "Did Mr. Washington take his jacket off or did it come off during the struggle? Please show on the diagram where the jacket came off. At what point was Mr. Washington placed under arrest? On what charges? Why didn't the officer allow Mr. Washington to explain or acknowledgment of the warranty [sic]. What was the officer's reason for placing handcuffs on Mr. Washington? Was Mr. Washington told he was under arrest? If so, why?" The trial judge reviewed these questions with the lawyers and then asked Deputy Bruce when the defendant was placed under arrest, the charges against him, when and why he was handcuffed, and when the jacket came off. The judge said he was paraphrasing some of the questions, because they were "convoluted," and that he was allowing questions on matters the witnesses had already covered, so long as there was no objection.
Sergeant Harrelson testified that he went into the office where Deputy Bruce and the defendant were sitting and heard Bruce make a comment on the telephone using the number 49, which is a law enforcement code indicating that the person has an outstanding warrant. Sergeant Harrelson asked the defendant about the coins, and he appeared to be nervous. At that point, the defendant's cell phone rang. He talked on the phone briefly, hung up and ran out of the office. Harrelson related the rest of the story in generally the same way as Deputy Bruce had and he described the area where the officers finally apprehended the defendant as a small alcove.
The following juror questions were submitted for Sergeant Harrelson: "Were the coins stolen? Why wasn't Mr. Washington told what 49 meant? When Mr. Washington first left the office, were verbal commands to stop issued?" The trial judge asked only the second and third questions. Sergeant Harrelson answered these by saying that he did command the defendant to stop but did not tell him what code 49 means. He explained that officers do not ordinarily want a suspect to know that they are aware of the existence of warrants.
Deputy Rick Parraro testified that when he arrived on the scene, Sergeant Harrelson and Deputy Bruce had the defendant on the floor trying to handcuff him. He was kicking and screaming, saying he wasn't going to jail and refusing to walk on his own. When the two officers picked him up and carried him to the patrol car, he refused to get in and he was kicking his legs, flailing, jerking and screaming. Deputy *1169 Parraro sprayed the defendant with pepper spray in an effort to get him under control. Once the defendant was in the car the officers put a hobble restraint around his feet to hold them together.
The following questions were submitted for Deputy Parraro: "How could Mr. Washington be fighting back with handcuffs on and hobbles on his feet? Who witnessed the jacket being searched? Was Mr. Washington told if he didn't [calm] down that he would be sprayed? Why was Mr. Washington's coat later searched?" The trial judge then said, "I will note for the record this series of questions come from juror McCoy. I have noted throughout the questioning that juror McCoy has repeatedly asked questions that were hostile, argumentative questions, not following the Court's instructions on questioning. We'll monitor the rest of the trial, but in all probability I'm going to take Ms. McCoy off the jury and substitute the alternate."
Michelle Garber, a crime-lab analyst with the Florida Department of Law Enforcement, said she tested the suspected contraband and identified less than one gram of cannabis and half a gram of cocaine. She said the evidence was properly labeled and, when she was finished testing it, she returned it to the evidence technician. Ms. Garber testified that the evidence came in as a "rush case," because it was headed for trial.
The trial judge informed the lawyers that there were three questions from juror McCoy that were not entirely clear but that the judge interpreted as, "Why was this evidence rushed? Was the evidence tampered? [sic] Why wasn't all items fingerprinted? [sic]." The judge declined to ask any of the questions.
Tina Rivers, evidence custodian for the Leon County Sheriff's Department, testified about the procedures for destroying evidence. Her records showed that the cannabis and cocaine in this case had been destroyed. She did not remember who instructed her to dispose of these items but said it could have been an oral directive. Ms. Rivers also identified a subsequent order from the court approving destruction of the evidence. She said that destroying the evidence was a mistake, because this case had not been completed.
This testimony prompted another series of questions from juror McCoy: "What was [destroyed]? Why did the officer order the evidence to be destroyed verbally? Was the officer hiding something? Or covering up something?" Ms. Rivers said that she was not sure when the evidence was destroyed.
Sergeant Barry Blackburn, a Leon County Sheriff's Deputy and supervisor of the crime scene unit, testified that evidence is destroyed when it is no longer of any value. Sergeant Blackburn said that the evidence in this case was burned on February 2, 2005, which was a very unusual mistake. He believed the authorization must have been verbal and he explained further that the policy had since been changed to require written authorization.
The judge read to the attorneys a question from juror McCoy: "If this evidence has been closed and destroyed why is Mr. Washington being charged? There is no evidence or proof? [sic]" Deputy Bruce was recalled to the stand and did not know anything about why the evidence was destroyed. The court declined to ask the following question from juror McCoy: "Why is it that the only way to destroy evidence would be for the officer to call and have this done or judge . . . ?[sic]"
The state rested and the defendant took the witness stand in his own defense. He told the jury that he found the coins on a closet shelf shortly after moving into a new *1170 apartment. He admitted that he tried to leave the bank but denied that he had physically resisted the officers at any time. When asked whether he was carrying any drugs when he went to the bank that day, the defendant replied that he was not.
When all of the testimony had been presented, the trial judge informed the lawyers that he intended to excuse juror McCoy. The trial court explained,
. . . [T]he only thing I need to decide is, as to Ms. McCoy, it's my intention to replace Ms. McCoy with the alternate and tell Ms. McCoy she does not need to return.
I wasn't originally paying too much attention to it, as to who was asking the questions and the nature of the questions, but since I began paying more attention to it, of the last seven witnesses that were called, my recollection is that Ms. McCoy was the only juror that asked any questions, a large majority of the questions asked by her were contrary to my instructions, showed a total lack of understanding of the testimony that had been presented, were generally argumentative and hostile questions.
I don't think she is an appropriate juror to sit on this case. We have Ms. Thompson, who is our alternate. And I really don't see any reason to bring Ms. McCoy back, just to excuse her at the end of the day tomorrow. But I'll let y'all be heard on that.
Defense counsel objected to this proposal and argued that the juror had not given any indication that she could not be fair. He also noted that the judge's practice of allowing jurors to ask questions of witnesses was "very unusual," in that it enabled the court to "look into the thought patterns of the jurors." The objection was overruled.
At that point the trial judge explained how he knew that the questions had been submitted by juror McCoy:
It may be a little puzzling how we know exactly which juror [is asking the questions]. It became very obvious because she was the only one writing questions. I think the handwriting is clear on the notes that they are all by the same juror. And there were at least three or four occasions where she was the only one writing questions at the end.
The trial judge excused juror McCoy from further service in the case and replaced her with an alternate juror. Following the closing arguments and jury instructions, the newly reconstituted jury panel retired to deliberate. The jury found the defendant guilty of resisting an officer with violence, not guilty of possession of cocaine and guilty of possession of marijuana. The trial judge sentenced the defendant to a term of imprisonment, and he now appeals to this court.
We begin by stating a principle that is not in dispute. Florida trial judges have discretion to allow jurors to submit questions to be asked of witnesses. See Morris v. State, 931 So. 2d 821 (Fla.2006); Watson v. State, 651 So. 2d 1159, 1163 (Fla. 1994); Ferrara v. State, 101 So. 2d 797 (Fla.1958). In these decisions, the Florida Supreme Court has authorized the practice, but it is important to point out that the court did not endorse it. The existence of discretionary authority to allow jurors to ask questions does not imply that juror questions must be allowed or even that they should be allowed.
This case presents a good example of the kinds of problems that can arise if the trial judge permits jurors to submit questions to be asked of the witnesses. The jurors may not fully understand the technical limits the judge has placed on their right to ask questions, they may ask more *1171 questions than the trial judge expected, and their questions may be ambiguous or confusing. Jurors do not know the rules of evidence or the procedures that must be followed in a trial. A question that seems proper to a juror may be regarded by the court or counsel as improper.
In addition to these general concerns, a question submitted by a juror may inadvertently open a window into the thought process of the juror. That might work against a juror who is simply attempting to get relevant information. Judges and lawyers ordinarily have no right to know what jurors are thinking during the course of a trial. If a question reveals that a juror is leaning one way or the other, and if that juror is subsequently removed from the panel, someone will inevitably question whether the juror was removed for the stated reason or because of the way the juror was leaning.
In the present case the state argues that a trial judge has discretion to remove a sitting juror for misconduct. We have no quarrel with this general proposition, but the fallacy in the state's argument is that it assumes juror McCoy committed some act of misconduct. She did not. The trial judge believed that she had violated his instruction to limit the questions to those that would clarify a point. However, juror McCoy may have thought that she was merely seeking clarification. Perhaps the points that were not yet fully explained to her satisfaction had been covered in enough detail for the trial judge, but there is nothing in the record to suggest that juror McCoy was deliberately disobeying the trial judge's instruction.
It is also possible that she was confused by the subsequent instruction given during the course of the testimony. After fielding the questions that had been directed to the first few witnesses, the judge told the jury, "Don't send us questions about something this witness doesn't know anything about as to what some other witness might know." This instruction may have been difficult for any juror to follow. Unlike the lawyers, who have investigated the case and prepared for trial, the jurors are hearing the evidence for the first time. They cannot be expected to know what a particular witness knows or does not know.
The state argues that juror McCoy's questions revealed a bias in favor of the defendant. We reject this argument, as well. Juror McCoy appears to have been skeptical of the state's witnesses, but that does not mean that she could not be fair. Jurors are told that the defendant is presumed to be innocent and that the state has the burden of proving guilt beyond a reasonable doubt. It should come as no surprise then that some of them will have critical questions about the state's evidence. Surely a juror does not demonstrate unfairness merely by asking sharp questions.
Moreover, given the series of blunders in the investigation of this case, we certainly could not conclude that juror McCoy's skepticism was unreasonable. The police officers accidently destroyed the marijuana and the cocaine; the bank failed to retain the videotape from any of the thirteen cameras taking pictures in the lobby that day; and the defendant was not even charged with possession of stolen coins, the suspected offense that set all of these events in motion. Under these circumstances, any juror might have been doubtful. Juror McCoy asked a number of questions about the search of the defendant's jacket and the discovery of the cocaine. The fact that the jury found the defendant not guilty of possession of cocaine suggests that juror McCoy was not the only one who had doubts about this charge.
*1172 Jurors are told that they must not form any definite or fixed opinion about the merits of a case until they have heard all of the evidence, the arguments of the attorneys and the instructions on the law. See Fla. Std. Jury Instr. (Crim) 2.1. There is nothing in the record to suggest that juror McCoy violated this instruction. She may have been forming impressions as she was hearing the evidence, but we do not know what she may have thought after hearing the entire case and discussing it with the other jurors. It would be unrealistic to assume that jurors do not form impressions as they are hearing evidence. That is not improper, so long as the juror does not decide the case before it is concluded.
It is true that juror McCoy asked many more questions than the judge was expecting, but that does not qualify as misconduct. In his initial instruction, the judge said, "You are not encouraged to ask a large number of questions." This was not a command to limit the questions to a certain number. Perhaps juror McCoy's idea of "a large number" was different from that of the trial judge. In any event, a judge who invites jurors to ask questions is not in a good position to remove a juror on the ground that a juror has asked too many questions. If juror questioning gets out of hand, the judge can stop it altogether; but that was not done here.
A party seeking to remove a juror for improper behavior in the course of a trial must first show that the juror's actions amount to misconduct. See State v. Hamilton, 574 So. 2d 124, 129 (Fla.1991); Ramirez v. State, 922 So. 2d 386, 389 (Fla. 1st DCA 2006). Here, the trial judge removed the juror in the absence of a request by a party, but the standard is no different. Whether removal is initiated by a party or by the trial judge, a finding of misconduct requires evidence that the juror violated an order or instruction by the court.
If a juror has visited the scene of the crime, read news accounts of the crime or spoken to a witness out of court, the violation would be obvious, and the only matter left for the exercise of discretion would be to determine the appropriate remedy. In contrast, juror McCoy's conduct was not clearly shown to be a violation of any order or instruction. Whether her questions were too numerous or too suggestive are very subjective issues. To say that she was guilty of misconduct would require a characterization that is a matter of opinion.
We are particularly unwilling to approve of the disqualification of a juror in a case in which the juror did not have an opportunity to respond to the claim of juror misconduct. The trial judge could have questioned juror McCoy to determine whether she thought that her questions complied with the questioning procedure or whether she was deliberately violating the procedure. Many potential issues of juror misconduct can be diffused in this way. See, e.g., England v. State, 940 So. 2d 389 (Fla. 2006) (after questioning the juror, the trial judge determined that the juror had not expressed a premature opinion of guilt); Coleman v. State, 484 So. 2d 624 (Fla. 1st DCA 1986) (after questioning jurors, the trial court determined that they had not read newspaper articles in violation of a court order); Alfonso v. State, 443 So. 2d 176 (Fla. 3d DCA 1983) (the trial judge questioned a juror and determined that he did not have improper contact with a police officer during the course of the trial). In contrast, the trial judge in the present case did not question the juror. The assumption that she had prejudged the case or could no longer be fair to the state is therefore unsupported by the record.
In some instances an error in removing a juror can be treated as harmless, *1173 if the juror is replaced by a duly selected alternate. For example, this court concluded in Orosz v. State, 389 So. 2d 1199 (Fla. 1st DCA 1980), that any error in removing a sleeping juror was harmless, because the juror was replaced with an alternate selected during voir dire. However, this reasoning cannot be applied here. It would make little sense to conclude that it is error to reconfigure the jury panel based on nothing more than the perceived impressions a juror holds about the case, but that the error does no harm because the parties had previously selected the alternate juror. In this situation, the reconfiguration of the jury panel is the very error that must be corrected.
Another aspect of the problem presented by this case is that the other jurors may have suspected that juror McCoy was excused because she asked too many questions and was too critical of the state's case. Given the sequence of events, the remaining jurors also might have inferred that the trial judge believed the defendant was guilty. Of course, this is an impression that trial judges work very hard to avoid. At the conclusion of every criminal trial, the judge tells the jury, "Please disregard anything I may have said or done that made you think I prefer one verdict over another." Fla. Std. Jury Inst. (Crim) 3.11. The jury is not to be influenced by the trial judge's opinion. Yet the removal of a juror who has asked questions may signal to the remaining jurors that the judge did not like the questions. From this, they may infer, correctly or incorrectly, that the judge holds a particular view of the case.
We are very concerned about the precedent we would be setting were we to approve of the decision the trial court made here. The judge in this case undoubtedly had good intentions, but it may look to others as though he manipulated the jury panel based on his own perception of a juror's questions. The judge and jury each have different functions, and there are good reasons to ensure that they remain separate. The credibility of the process would be undermined if it appeared that a judge was deciding which jurors could serve based on the inclinations they may have shown by their questions.
Because the error in excusing juror McCoy is alone sufficient to warrant reversal, we need not resolve any of the other issues presented on appeal. However, our failure to address the other points should not be taken as approval. If the defendant testifies in the trial on remand, the prosecuting attorney should not be permitted to ask him if the state's witnesses are lying. Nor should she be permitted to ask the defendant where he obtained the money to post bail or any other irrelevant question designed to impeach him on a collateral matter.
Reversed and remanded.
BROWNING, C.J., and WEBSTER, J., concur.
OCNUM 07050138] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619808/ | 221 Wis. 2d 513 (1998)
585 N.W.2d 690
Diane MEYER, Plaintiff-Appellant,[]
v.
SCHOOL DISTRICT OF COLBY, Wausau Underwriters Insurance Company, and Security Health Plan of Wisconsin, Inc., Defendants-Respondents.
No. 98-0482.
Court of Appeals of Wisconsin.
Decided August 20, 1998.
Submitted on briefs May 21, 1998.
*514 On behalf of the plaintiff-appellant, the cause was submitted on the brief of Susanne M. Glasser of Bye, Goff & Rhode, Ltd. of River Falls.
On behalf of the defendants-respondents, the cause was submitted on the brief of Mark W. Parman of Stilp and Cotton of Wausau.
Before Vergeront, Roggensack and Deininger, JJ.
DEININGER, J.
Diane Meyer appeals an order for summary judgment in favor of the School District of Colby which dismissed her suit for damages resulting *515 from personal injuries she sustained while watching a football game on school property. Meyer contends that the trial court erred in holding the District immune from liability under § 895.52, STATS., Wisconsin's recreational immunity statute. Because we conclude that the District is immune under the statute from liability for Meyer's injuries, we affirm the order granting summary judgment.
BACKGROUND
The facts relevant to the recreational immunity issue are straightforward and not in dispute. Meyer watched her son's freshman football game from bleachers adjacent to the football field at Colby High School. The football field and the bleachers are on property owned by the District. The District charges no admission fee for spectators at freshman football games. Meyer claims that, as she descended the bleachers after the game, a portion of the bleachers broke, causing her to fall and sustain injuries.
Meyer sued the District, alleging that her injuries were caused by its negligence. The District moved for summary judgment, claiming it was immune from liability under § 895.52, STATS.[1] The trial court granted summary judgment, and Meyer appeals.
*516 ANALYSIS
[1, 2]
We review a trial court's grant of summary judgment using the same methodology as the trial court. See M&I First Nat'l Bank v. Episcopal Homes Management, Inc., 195 Wis. 2d 485, 496, 536 N.W.2d 175, 182 (Ct. App. 1995). That methodology is well known, and we need not repeat it here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id. at 496-97, 536 N.W.2d at 182; see also § 802.08(2), STATS.
[3]
Wisconsin's recreational immunity statute generally provides immunity to property owners from liability for injuries to persons engaging in recreational activities on the owner's property, unless the owner derives more than minimal monetary benefit from the recreational activity or maliciously fails to warn against unsafe conditions on the property. See § 895.52, STATS. This immunity applies to governmental entities as well as to private property owners. See § 895.52(1)(a) and (d). The statute broadly defines "recreational activity" as "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity." Section 895.52(1)(g).[2] The definition also provides a *517 non-exclusive list of twenty-eight exemplary recreational activities, and it explicitly includes "any other outdoor sport, game or educational activity." See id. The broad statutory definition of "recreational activity" also contains an exception, however: "`recreational activity' ... does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place." Id.
The parties do not dispute that the freshman football game Meyer attended as a spectator was an organized team sport activity, or that the school district was the sponsor of the activity and the owner of the land on which the game took place. Accordingly, the District, as sponsor-landowner, is not immune from liability for injuries sustained by participants in the game itself. See Kloes v. Eau Claire Cavalier Baseball Ass'n, Inc., 170 Wis. 2d 77, 85, 487 N.W.2d 77, 80 (Ct. App. 1992). The District did not charge an admission fee for spectators at the football game, and Meyer does not allege that the school district acted maliciously in failing to maintain the bleachers or warn of their unsafe condition, circumstances which would deprive the District of immunity under § 895.52(4)(a) and (b), STATS.
[4, 5]
Thus, the sole issue in this appeal is whether the exception in the statutory definition of recreational *518 activity for "any organized team sport activity sponsored by the owner of the property on which the activity takes place" extends to the spectators, and not just the participants, at such an event. This question requires that we interpret § 895.52, STATS. Statutory interpretation is a question of law which we decide de novo. See Stockbridge Sch. Dist. v. DPI, 202 Wis. 2d 214, 219, 550 N.W.2d 96, 98 (1996). The main goal of statutory interpretation is to discern the intent of the legislature. See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 25-26, 559 N.W.2d 563, 566 (1997) (citations omitted). We first look to the plain language of the statute. See id. If the plain language is ambiguous, we turn to extrinsic aids such as the legislative history, scope, context and purpose of the statute to determine legislative intent. See id.
The plain language of paragraph (1)(g) does not indicate whether the exception for an organized team sport activity extends to spectators. By its terms, paragraph (1)(g) does not limit the exception only to participants in organized team sport activities, but neither does it explicitly include spectators at such activities. The District argues that we must infer from the language of § 895.52(4)(a), STATS., which explicitly refers to spectators, that the organized team sport activity exception in paragraph (1)(g) does not apply to spectors. We do not accept the District's argument on this point.
Under paragraph (4)(a), immunity does not extend to liability for "death or injury that occurs on property of which a governmental body is the owner at any event for which the owner charges an admission fee for spectators." Thus, had the District charged Meyer an admission fee to watch her son's football game, the District would presumably not be immune under the *519 statute from liability for her injuries. The District argues that since it charged no admission fee, we must construe paragraphs (1)(g) and (4)(a) together and conclude that its immunity is preserved. We need not necessarily infer from the existence of paragraph (4)(a), however, that the team sport exception in (1)(g) does not also apply to spectators at organized team sport activities, even when no admission fee is charged for spectators. The legislature has provided two separate exceptions in two different paragraphs of the statute, one for organized team sport activities, and one for events at which the owner charges an admission fee for spectators.
The two exceptions overlap when an admission fee is charged for spectators at team sport activities, such as when a school district charges an admission fee for spectators at varsity football games. But these exceptions also apply independently. The exception for events at which a governmental property owner charges an admission fee for spectators applies even when the event in question is not an organized team sport activity. For example, had Meyer been injured on the bleachers while attending a high school band concert for which the District charged spectators an admission fee, it would not be immune, even though no organized team sport activity was involved. Likewise, the organized team sport activity exception applies, at least with respect to participants in the activity, even when the property owner does not charge an admission fee for spectators. See Hupf v. City of Appleton, 165 Wis. 2d 215, 219-22, 477 N.W.2d 69, 71-72 (Ct. App. 1991). In short, these two exceptions function independently, and we do not infer from the existence of one that the scope of the other is therefore narrowed. *520 Because the language of the statute is ambiguous, we may turn to extrinsic aids to interpretation. The legislature has provided a statement of legislative intent to aid in the interpretation of the recreational immunity statute. It provides as follows:
The legislature intends by this act to limit the liability of property owners toward others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit. While it is not possible to specify in a statute every activity which might constitute a recreational activity, this act provides examples of the kinds of activities that are meant to be included, and the legislature intends that, where substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability.
1983 Wis. Act 418, § 1. Although Wisconsin courts have often relied on this statement in determining whether a given activity was or was not a "recreational activity" under the statute,[3] it does not necessarily illuminate the legislative intent underlying the organized team sport activity exception. This is not a case in which we are called upon to interpret whether an activity is "substantially similar" to one of the examples of recreational activity cited in the statute so that it should be considered a recreational activity. Meyer's attendance as a spectator at the game, standing alone, is a recreational activity. See Kostroski v. County of Marathon, 158 Wis. 2d 201, 203, 462 N.W.2d 542, 543 (Ct. App. 1990) (attendance as a spectator at a ball game in the park is a recreational activity). Were it not *521 for the ambiguity created because the event attended was an organized team sport activity sponsored by the property owner, and hence one that is specifically excepted from the definition, we would have no difficulty affirming the dismissal of Meyer's claim against the District. This case requires us to interpret the scope of an express, legislatively-created exception for organized team sport activities, and the statement of legislative intent calling for a broad definition of recreational activity is of limited assistance to our inquiry.
This court considered the scope of the organized team sport activity exception in Hupf v. City of Appleton, 165 Wis. 2d 215, 477 N.W.2d 69 (Ct. App. 1991). In Hupf, a participant in a city softball league at a city park was struck by a ball and injured. The participant was not playing softball at the time of his injuries, however. He was walking between diamonds when he was struck by the ball, which had been thrown by players warming up nearby. We acknowledged that under some circumstances, a walk in a city park would be an immune recreational activity. See id. at 220-21, 477 N.W.2d at 71-72. We concluded, however, that the legislature did not intend to create a "corridor of immunity from the ball field to the parking lot when the walk is inextricably connected to a non-immune activity." Id. at 221, 477 N.W.2d at 72. We held that a sponsoring landowner was not immune from liability for injuries to a participant in an organized team sport activity that occur on the landowner's property as the participant travels directly to and from the activity. See id.
Meyer's injury in this case is not as closely connected to the organized team sport activity sponsored by the District as was the softball player's off-field injury in Hupf. Unlike the injured plaintiff in Hupf, Meyer was not on the premises to participate in the *522 organized team sport activity. Also, her injury did not arise out of the team sport activity itself, or as in Hupf, out of an ancillary activity such as practicing or warming up; nor was the immediate cause of her injury attributable to the actions of any participant in the organized team sport activity she had come to watch. Because Meyer's injuries were not inextricably connected to the organized team sport activity itself, we conclude that Hupf is not controlling on the present facts.
[6]
Rather, we conclude that the organized team sport activity exception does not extend to spectators who are not participants in the excepted activity and whose injuries do not arise out of the team sport activity or the actions of participants in that activity. Thus, the District is immune from liability for Meyer's injuries under § 895.52, STATS.
Our conclusion is consistent with the purpose of the statute, while the opposite conclusion would not be. The purpose of § 895.52, STATS., is "to encourage property owners to open their lands for recreational activities by removing a property user's potential cause of action against a property owner's alleged negligence." Linville v. City of Janesville, 184 Wis. 2d 705, 715, 516 N.W.2d 427, 430 (1994). Because organized team sport activities are excepted from the definition of recreational activity, those who sponsor organized team sport activities on land they own are not relieved by the recreational immunity statute of the duty to keep their premises safe for the participants in those activities. Under our holding in Hupf, the responsibilities of a sponsor-owner extend not only to the playing field itself, but to adjacent areas that must be used by team sport participants as they come and go. Here, *523 Meyer would have us take a further step by removing a sponsor-owner's immunity from liability for injuries to a non-participant which did not arise directly out of the conduct of the organized team sport activity. That result would create a disincentive for property owners to provide facilities for spectators, or even to permit spectators to enter their property to view organized team sport activities. Thus, Meyer's proffered interpretation would be contrary to the purpose of the recreational immunity statute.
Our interpretation also does not conflict with the apparent purpose of the legislative exception for organized team sport activities.[4] The legislature has expressly declared that those who sponsor organized team sport activities on their land should remain liable for injuries that result from those activities. By contrast, a landowner who permits his or her land to be used for organized team sport activities, without sponsoring those activities, is immune under the statute. See Weina v. Atlantic Mut. Ins. Co., 179 Wis. 2d 774, 508 N.W.2d 67 (Ct. App. 1993); also see Kloes v. Eau Claire Cavalier Baseball Ass'n Inc., 170 Wis. 2d 77, 85, 487 N.W.2d 77, 80-81 (Ct. App. 1992). Thus, the exception from immunity for sponsors of organized team sport activities only preserves exposure to liability a sponsor may otherwise face for injuries attributable to its negligence as a sponsor of the activity. We conclude *524 that the legislature, by creating the exception, intended to ensure that a sponsor of an organized team sport activity would not acquire blanket immunity for its own negligence simply because the sponsor also owns the land on which the teams play.[5] The present result is consistent with this purpose, in that a sponsor's duties to participants in a team sport activity are not lessened, but neither are a sponsor's duties expanded to cover non-participants in the activity.
Finally, we note that our interpretation is consistent with the supreme court's direction that, in interpreting § 895.52(1)(g), STATS., our focus must be on the nature of the injured property user's activity, as opposed to the nature of the landowner's activity. See Sievert v. American Family Mut. Ins. Co., 190 Wis. 2d 623, 632, 528 N.W.2d 413, 417 (1995). Meyer was spectating at a ball game, an activity previously held to be recreational within the meaning of the statute. Under the analysis employed in Sievert, Meyer's ability to recover for her injuries from the District should not turn on what type of activity, if any, the District was sponsoring at the time of her injury. Had Meyer been sitting on the bleachers to relax and watch a sunset, or to enjoy a free band concert sponsored by the District, there could be little dispute regarding the District's immunity from liability for her injuries under the statute. *525 Under the Sievert analysis, a different outcome should result only from a difference in the nature and purpose of Meyer's activity and not from any difference in the District's activity.
As with any grant of immunity from liability, the result of applying the recreational immunity statute may seem harsh in an individual case, and it may seem incompatible with outcomes based on closely similar facts. The legislature, however, has determined that the benefit of increased access to lands for recreational purposes, which presumably flows from a liberally construed recreational immunity statute, outweighs the cost of harsh or inconsistent results on individual liability claims. We have stated above our conclusion that the legislature's directive to liberally construe the term "recreational activity" does not directly assist in illuminating the contours of the sole exception contained in the statutory definition. We also note, however, that our present result is consistent with past decisions of the supreme court and this court which have expressed the legislative intent of § 895.52, STATS., more expansively. See Linville, 184 Wis. 2d at 715, 516 N.W.2d at 430 ("[C]ourts must liberally construe the statute in favor of property owners."); Weina, 179 Wis. 2d at 779, 508 N.W.2d at 69 ("[T]he legislature's directive [is] to liberally construe the recreational statute in favor of a property owner's immunity.").
CONCLUSION
For the reasons outlined above, the trial court's order granting summary judgment in favor of the District is affirmed.
By the Court.Order affirmed.
NOTES
[] Petition to review granted.
[1] Section 895.52(2), STATS., provides, in pertinent part:
(a) Except as provided in subs. (3) to (6), no owner and no officer, employe or agent of an owner owes to any person who enters the owner's property to engage in a recreational activity:
1. A duty to keep the property safe for recreational activities.
2. A duty to inspect the property, except as provided unders. 23.115(2).
3. A duty to give warning of an unsafe condition, use or activity on the property.
(b) Except as provided in subs. (3) to (6), no owner and no officer, employe or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner's property or for any death or injury resulting from an attack by a wild animal.
[2] Section 895.52(1)(g), STATS., provides:
"Recreational activity" means any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. "Recreational activity" includes, but is not limited to hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motor cycling, operating an all-terrain vehicle, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sport, sight-seeing, rockclimbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature and any other outdoor sport, game or educational activity, but does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.
[3] See, e.g., Linville v. City of Janesville, 184 Wis. 2d 705, 714-15, 516 N.W.2d 427, 430 (1994).
[4] The exception for owner-sponsored organized team sport activities was included in § 895.52(1)(g), STATS., when it was first enacted. See 1983 Wis. Act 418, § 5. Although not a part of 1983 Senate Bill 586 as introduced, the exception was added by amendment while the bill was in committee. The Legislative Reference Bureau drafting file contains no information which specifically identifies the concern intended to be addressed by the language of the exception.
[5] We also note that, without the exception for organized team sport activities, anomalous outcomes would be possible on claims of liability for negligence on the part of team sport sponsors, depending solely on the location of a team sport event. For instance, absent the exception, one could argue that the Colby School District is potentially liable for injuries sustained by its athletes at away games, but that it is immune from suit for injuries arising under identical circumstances but occurring on the home field. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620732/ | 294 S.W.2d 77 (1956)
Charles E. ANNESS, Appellant,
v.
Claude FREEMAN et al., Appellees.
Court of Appeals of Kentucky.
October 5, 1956.
Carl L. Combs, Lexington, for appellant.
Brown, Miller & Griffin, Lexington, for appellees.
CULLEN, Commissioner.
This action was instituted to obtain specific performance of a contract for the sale of land. The contract provided that the land would be free for use as a site for business offices. The purchaser declined to perform on the ground that the seller could not furnish title meeting the terms of the contract, because of a plat restriction limiting the use of the property to single family dwelling units. In the court below the restriction was declared void and the contract specifically enforcible; whereupon the purchaser appealed.
The sole question presented upon this appeal is whether there was sufficient evidence of substantial change in the neighborhood to warrant declaring the restrictive covenant void.
The land in question is a portion of original lots Nos. 2 through 6, in the Rosemill Subdivision, Unit 2, on the south side of the City of Lexington. The plat of this unit of the subdivision was recorded in 1940. Between 1949 and 1951 a major traffic by-pass, known as the Southern U-Pass, was constructed across a number of the lots in Unit 2, and thereafter there *78 was a substantial commercial development of the neighborhood.
The lots here in question are bounded on the east by the Southern U-Pass and on the north and west by Mitchell Avenue and Rosemill Drive. On the south is a plant nursery, covering a portion of lots 5 and 6. This land has been used for business purposes, in violation of the restriction, for over 10 years.
The testimony of the developer of a nearby shopping center, the city-county building inspector, a subdivider of 310 acres in Fayette County, and others was to the effect that the property is now totally unsuited for residential purposes. Both the owner and the purchaser had talked to the people in the neighborhood and no one had objected to the proposed use. The Fayette County Zoning and Planning Commission, upon petition, had approved a change of zone of this property to permit the erection of an office building and the plans of the proposed building were approved by the commission.
It is well established that restrictive covenants against business enterprises will not be enforced when there has been a fundamental change in the character of the property in the restricted area due to municipal expansion, spread of industry and other like causes. See Goodwin Bros. v. Combs Lumber Co., 275 Ky. 114, 120 S.W.2d 1024 and the cases cited therein. However, before a change of conditions will bring into operation the annulment of a restrictive covenant, it must be a change of such character that it clearly neutralizes the benefits of the restriction to such an extent as to defeat the purpose of the covenant. Franklin v. Moats, Ky., 273 S.W.2d 812; Restatement, Property, Sec. 564.
The evidence amply supports the finding of the lower court that the change here was such as to defeat the purpose of the covenant. The fact that other property owners have disregarded the restriction tends to show that any previously existing benefits have disappeared. The undisputed testimony of qualified realty experts that the property is no longer suited for residential purposes is persuasive.
While the action of the zoning commission could not destroy the covenant, it shows a transformation of the character of the neighborhood and when added to the other evidence, the change is manifest.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620659/ | 916 So. 2d 1268 (2005)
STATE of Louisiana, Appellee
v.
Daryl Germaine ROSHELL, Appellant.
No. 40,374-KA.
Court of Appeal of Louisiana, Second Circuit.
December 14, 2005.
*1269 Louisiana Appellate Project by Edward K. Bauman, and Indigent Defender Board by Michael Bowers, for Appellant.
Paul J. Carmouche, District Attorney, Shenequa L. Grey, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
Before STEWART, CARAWAY and DREW, JJ.
STEWART, J.
The defendant, Daryl Germaine Roshell, was found guilty by a jury of attempted manslaughter, attempted armed robbery, and two counts of armed robbery. He was adjudicated a third felony offender based on one of the armed robbery convictions and sentenced to 100 years hard labor. He was also given sentences of 20 years for attempted manslaughter, 35 for attempted armed robbery, and 40 years for the other armed robbery to be served concurrently with the 100 year sentence.
The defendant argues that his convictions should be reversed on the grounds that the trial court erred in denying a motion to suppress his confession. We find no error in the trial court's denial of the motion to suppress. However, error patent review shows that the defendant was erroneously adjudicated as a third felony offender. Therefore, we reverse both the adjudication as a third felony offender and the sentence of 100 years, and we remand for the state to bring a new habitual offender proceeding and then for resentencing by the trial court on the armed robbery conviction that is subject to the enhanced habitual offender penalty. Otherwise, the defendant's convictions and sentences are affirmed.
FACTS
On August 23, 2002, three City of Shreveport employees, Alvin Cox, Calvin Cross, and Elmo Rogers, were working to clear a sewer drain at the corner of Carver and Broadway streets when two individuals wearing bandannas over their faces approached them and demanded their money. One of the assailants was hollering and waving a gun around. Both Rogers and Cross gave the gunman their money, *1270 but Cox told the gunman that he did not have any. After Cox refused the gunman's second demand for money, the gunman walked behind him and shot him in the back of the head. At the sound of the gunshot, Rogers and Cross fled by diving into the drainage ditch.
A Crime Stoppers tip by Jessie Caldwell led police to question the defendant on September 28, 2002, as a suspect in the robberies and shooting. The defendant denied any knowledge of the crimes and claimed that he had been in Dallas when they occurred. Because Caldwell refused to testify, the police had nothing more to go on and suspended the case.
However, Caldwell again came forward in May 2003, and agreed to testify. Caldwell gave a statement to the police which led them to Daryl "Duck" Houston, known as the defendant's brother. The police believed the defendant had given the gun used in the incident to Houston. Houston told police that he could retrieve the gun but needed $100 to do so. He was given the money, and the police got the gun. The gun fit the description of the weapon used during the crimes.
On May 30, 2003, the police picked up the defendant, who for reasons not clear in the record was at the Caddo Correctional Center. While being driven to the interview location, the defendant denied any involvement in the crimes. However, once shown the gun, the defendant asked to speak to his brother, and Houston was called to the station. The defendant had a private conversation with Houston of no more than 15 minutes, after which Houston told the police that his brother would tell the truth. The defendant then gave a statement to the police admitting his involvement in the crimes. The defendant was ultimately charged with attempted second degree murder, attempted armed robbery, and two counts of armed robbery.
Two motions to suppress the defendant's confession were filed prior to trial. The first was filed by the defense attorney on March 15, 2004, and asserted that the statement was induced by "threats and promises made by the Shreveport Police Department during the investigation of the crimes." The second was a pro se motion by the defendant filed on March 25, 2004, alleging that the statement was made in response to "intimidations and threats by police and while under duress." The defendant's pro se motion further alleged that the police told him that due to the victims being city employees, they were under "pressure to make an arrest and they didn't care who that person was or if they did it."
A hearing on the motions to suppress was held on April 27, 2004. The state presented the testimony of Detective Rod Johnson and Sgt. Brian Strange of the Shreveport Police Department. Johnson testified as to the investigation that led to the defendant's confession. He described the defendant's reaction to seeing the gun by stating, "I think he would have crawled up the wall if he could have." Johnson did not know what the defendant and Houston talked about prior to the defendant's statement. Finally, he asserted that no threats, coercion, violence, or promises were used by the police to induce the defendant's statement. Strange also described the defendant as "visibly upset" upon seeing the gun. He did not hear any of the conversation between the defendant and his brother, Houston. Lastly, Strange also denied that any threats of violence, coercion, or promises were used by the police to induce the confession.
The defendant testified that when the police first picked him up for the interview, he denied any involvement in the crime. He also denied asking to see his brother, and he stated that Houston was not his *1271 brother. He explained that he sold drugs for Houston and that they called each other brother for identification purposes with their neighborhood buyers. He also explained that he listed Houston as his brother in his jail records so that Houston could bring him clothes and contact him in jail. The defendant's story was that Houston told him the police kicked in his door and found guns, drugs, and a bulletproof vest. Houston wanted him to take the charge and told him that he knew where his mother stayed. The defendant testified that he took this as a threat by Houston, whom he described as a violent person with money and influence as a drug dealer. He testified that Houston told him exactly what to say. On cross examination, the defendant could not explain why he did not mention Houston's threats in his motion to suppress. Instead, he claimed that the police tried to make him touch the gun, that a detective mouthed to him what to say during the interview, that they tried to bribe him with coffee and cigarettes, and that they left Houston in a room with him to threaten his handicapped mother. He also suggested that Houston was a confidential informant.
After taking the matter under advisement, the trial court denied the motions to suppress upon determining that the defendant's statement was freely and voluntarily given. The matter proceeded to a trial at which defense counsel renewed the objection to the confession being admitted into evidence. In compliance with La. C. Cr. P. art. 703(G), the state introduced the circumstances under which the confession was obtained. Detective Johnson testified about both interviews with the defendant so that the jury learned that he had denied any involvement until after having spoken to Houston.
The jury found the defendant guilty of attempted manslaughter and attempted armed robbery of Alvin Cox, armed robbery of Calvin Cross, and armed robbery of Elmo Rogers. Defendant was then adjudicated a third felony offender and sentenced as previously set forth. Motions for a new trial, post-verdict judgment of acquittal, and reconsideration of sentence were all denied, as was the defendant's pro se motion for a new trial. This appeal, which challenges the trial court's denial of the motions to suppress, followed.
DISCUSSION
Motion to Suppress
The defendant's sole assignment of error is that the trial court erred in denying the motion to suppress. He argues that the state failed to prove that his statement was made voluntarily, since it was given after Houston threatened to harm his mother. He asserts that in the absence of the improperly admitted confession, the evidence was not sufficient to convict.
According to the state, the defendant's claims that he was coerced into giving a confession and only repeated details told to him lacks credibility and merit. The state asserts that the trial court did not believe the defendant was forced to give a statement and that under the holding of State v. Coleman, 32,906 (La.App.2d Cir.4/5/00), 756 So. 2d 1218, writ denied, 00-1572 (La.5/23/01), 787 So. 2d 1010, that factual determination should not be disturbed.
Before a confession may be introduced into evidence, "it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises." La. R.S. 15:451. The state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession at a hearing on a motion to suppress. State v. Coleman, supra; State v. Hills, *1272 354 So. 2d 186 (La.1977). The state must also affirmatively prove that the defendant was first advised of his Miranda rights and that the confession was not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. State v. Johnson, 36,014 (La. App.2d Cir.6/12/02), 821 So. 2d 652. The testimony of the interviewing police officer alone may be sufficient to prove the defendant's statement was given freely and voluntarily. State v. Trotter, 37,325 (La. App.2d Cir.8/22/03), 852 So. 2d 1247, writ denied, 2003-2764 (La.2/13/04), 867 So. 2d 689, recon. denied, 2003-2764 (La.4/23/04), 870 So. 2d 282; State v. Henderson, 31,986 (La.App.2d Cir.8/18/99), 740 So. 2d 240.
In State v. Jackson, 381 So. 2d 485 (La.1980), and State v. Morvant, 384 So. 2d 765 (La.1980), the Louisiana Supreme Court stated the principles under which the admissibility of a confession must be judged. As a matter of federal constitutional law, a confession obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, must be considered involuntary and inadmissible. See Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897) and State v. Roddy, 33,112 (La. App.2d Cir.4/7/00), 756 So. 2d 1272, writ denied, XXXX-XXXX (La.5/11/01), 791 So. 2d 1288.
The admissibility of a confession is a question for the trial court, whose conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Coleman, supra; State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So. 2d 916, cert. denied, 529 U.S. 1112, 120 S. Ct. 1969, 146 L. Ed. 2d 800 (2000). Because the trial court has the opportunity to observe the witnesses and assess their credibility, we place great weight on its factual determinations. State v. Crews, 28,153 (La. App.2d Cir.5/8/96), 674 So. 2d 1082.
While the state has the burden of proving the admissibility of the confession in a trial on a motion to suppress, the defendant has the burden of proving the ground of his motion. La.C.Cr.P. art. 703(D). Two motions were filed to suppress the defendant's statement made on May 30, 2003. The first, filed by defense counsel on March 15, 2004, claimed that the confession was made under "threats and promises made by the Shreveport Police Department during the investigation of the crimes." The second, filed by the defendant on March 25, 2004, claimed that the confession,
was made under intimidations and threats by police and while under duress. Police stated because it was a case involving a city employee there was pressure to make an arrest and they didn't care who that person was or if they did it, if I didn't they would give me the charge.
Review of the allegations made in the motions to suppress shows that neither raised coercion by Houston as grounds for suppression of the confession. The defendant did not even raise the alleged coercion by Houston in his pro se motion for a new trial, in which he wrote only that he was intimidated by the "police surroundings" and alleged that a long and threatening interrogation, lack of counsel, being transported across town, being "tricked" into handling a gun, and being promised that he "would see home again" caused him to confess. However, the issue of alleged coercion by Houston was alluded to in defense counsel's post-verdict judgment of acquittal filed on July 30, 2004, which states, "It was only after a conversation with Daryl Houston that the defendant gave a statement. Something said to him *1273 while they were speaking together made Daryl Roshell give a false statement."
At the hearing on the motion to suppress, Johnson and Strange testified that the defendant asked to speak with Houston and afterwards, after being read his rights and signing a waiver, he voluntarily gave his statement. Nothing in the tape indicates that Roshell was distraught, hesitant, or under any stress. On the tape, he stated that he had not been threatened. The record shows that the allegations regarding the detectives' role in Houston's alleged threat appear to have been an afterthought by Roshell. Nothing in the record, aside from the defendant's own claims, suggests that the detectives inappropriately used Houston, forced the defendant to speak with Houston, had knowledge of what was said during Houston's conversation with the defendant, or had any part in the threats allegedly made by Houston.
The denial of the motions to suppress indicates that the trial court apparently believed the police officers' testimony that Roshell asked for Houston to be brought to the station and that they did not hear the conversation between Roshell and Houston, whom they had reason to believe was the defendant's brother. On this record, it is reasonable to believe that the defendant, who referred to Houston as his brother and listed him as such on his jail records, would have asked to speak with him. The trial court holds the advantageous position of observing the witnesses and being able to assess their credibility. Thus, the court's determination that the statement was given freely and voluntarily is entitled to great weight. After listening to the testimony and observing the witnesses, the trial court determined that the state had met its burden. Implicit in that finding is that the defendant did not meet his burden of proving the "ground of his motion[s]" as required by La.C.Cr.P. art. 703(D).
Our review of this record shows that the defendant asserted whatever claim he could think of to have his confession suppressed. When cross-examination forced him to address the discrepancy between the grounds alleged in the two motions to suppress and his testimony centering on alleged threats by Houston, he stated a litany of improper actions by the police which he alleged caused him to confess under duress. The defendant's grasping at any grounds possible to have his confession given after a valid waiver of rights suppressed was unconvincing to the trial court and is unconvincing to this court. The trial court's ruling denying the motion to suppress shows that the court found the defendant lacking in credibility. Thus, the trial court disbelieved the defendant's denial that he asked to speak to Houston, his claims of threats by Houston, his suggestion that Houston was a confidential informant, and his allegations of intimidations, threats, and promises by the officers. The trial court's finding that the defendant's confession was given voluntarily is supported by the entire record. Considering the great weight placed on the trial court's factual determinations and our review of the record, we find no merit to the defendant's claim that the trial court erred in denying the motions to suppress. Finding that the confession was properly admitted into evidence at trial, we will not address the defendant's argument regarding the sufficiency of the evidence in absence of the confession.
Error Patent
In reviewing the record for error patent, we find that the defendant was improperly adjudicated a third felony offender. The habitual offender provisions found in La. R.S. 15:529.1(A)(1) provide, in pertinent part, "Any person who, after *1274 having been convicted within this state of a felony ..., thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows...." (Emphasis added.) This statute and jurisprudence require that prior convictions must precede the commission of the principal offense in order for use to enhance a defendant's status as a multiple offender. See State v. Lennon, 427 So. 2d 860 (La.1983); State v. Ball, 32,498 (La. App.2d Cir.12/15/99), 748 So. 2d 1249, writ denied, XXXX-XXXX (La.10/6/00), 770 So. 2d 364.
The convictions utilized by the state to bill the defendant as a third felony offender included:
1. Purse snatching committed on October 14, 1998, pled guilty on August 31, 1999, and sentenced that same day to two years hard labor under Docket No. 198,526, First Judicial District Court, Caddo Parish, Louisiana.
2. Forgery committed on June 27, 2002, pled guilty on October 3, 2002, and sentenced that day to one year at hard labor, suspended, with one year active supervised probation and restitution ordered, under Docket No. 224,468, First Judicial District Court, Caddo Parish, Louisiana.
3. Armed robbery, count three among the charges in this case, committed on August 23, 2002, found guilty by jury on May 14, 2004, and sentenced to 100 years hard labor on November 10, 2002, under Docket No. 228,787, First Judicial District Court, Caddo Parish, Louisiana.
The listing of convictions shows that at the time of the commission of the third felony, the defendant had not yet been convicted of the forgery used as the second felony offense for purposes of adjudication as a third felony offender. In light of this error in the habitual offender adjudication, we hereby reverse the defendant's adjudication as a third felony offender and the 100 year sentence for the count three armed robbery as a third felony offense. We remand the matter to allow the state to bring a new habitual offender proceeding and for the trial court to then resentence the defendant on the enhanced armed robbery conviction.
CONCLUSION
For the reasons stated in this opinion, we affirm the defendant's convictions and his concurrent sentences of 20 years of hard labor for the attempted manslaughter, 35 years of hard labor for the attempted armed robbery, and 40 years of hard labor for the armed robbery listed as count four. The defendant's adjudication as a third felony offender and his sentence of 100 years of hard labor for the count three armed robbery conviction are reversed, and the matter is remanded for the state to bring a new habitual offender proceeding and for the trial court to then resentence the defendant on the armed robbery conviction for count three of the charges.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620740/ | 916 So. 2d 339 (2005)
STATE of Louisiana
v.
Justin SAVOY.
No. 05-92.
Court of Appeal of Louisiana, Third Circuit.
November 2, 2005.
*340 Michael Harson, District Attorney, J.N. Prather, Jr., Assistant District Attorney, Lafayette, LA, for State-Appellee, State of Louisiana.
Jason Wayne Robideaux, Attorney at Law, Lafayette, LA, for Defendant-Appellant, Justin Savoy.
James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant-Appellant, Justin Savoy.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
PICKETT, Judge.
FACTS
On December 5, 2003, the defendant, Justin Savoy, had an altercation with Jermaine "Tito" Duhon. Later, the defendant appeared in the street near Duhon's grandmother's house, where Duhon had gone after that altercation had ended. During a second altercation at that location, the defendant stabbed Duhon, who subsequently died as a result of the stab wounds.
On January 21, 2004, the defendant was indicted by a grand jury for second degree murder, a violation of La.R.S. 14:30.1.
On August 27, 2004, following the trial, the jury found the defendant guilty as charged. On that same date, the defendant waived the delay in sentencing, and the trial court sentenced him to life imprisonment at hard labor. The trial court further specified that the sentence was to be served without benefit of parole, probation or suspension of sentence.
On September 9, 2004, the defendant filed a motion for appeal. The defendant is now before this court on appeal and alleges, as assignment of error, that the evidence was not sufficient to convict him of second degree murder.
On March 24, 2005, the defendant filed a supplemental brief, pursuant to an order by the clerk of this court, asserting an additional assignment of error. In that brief, the defendant asserts that the trial court erred in allowing the jury, during deliberations, to listen to an audiotape of his confession and to view written evidence without a waiver of his rights under La. Code Crim.P. art. 793.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. *341 After reviewing the record, we find there are no errors patent.
ORIGINAL ASSIGNMENT OF ERROR
In his appeal to this court, the defendant asserts that the evidence was not sufficient to sustain his conviction of second degree murder, but rather shows that the homicide was committed in self-defense.
The elements of second degree murder are set forth in La.R.S. 14:30.1, which provides, in pertinent part, that "[s]econd degree murder is the killing of a human being: (1)[w]hen the offender has a specific intent to kill or to inflict great bodily harm...." The defendant claimed at trial that he acted in self-defense and that the evidence was, therefore, insufficient to sustain his conviction for second degree murder. Louisiana Revised Statutes 14:20 provides that a homicide is justifiable: "(1) [w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger."
The analysis for a claim of insufficient evidence is well-settled:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, rehearing denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979); State ex rel. Graffagnino v. King, 436 So. 2d 559 (La.1983); State v. Duncan, 420 So. 2d 1105 (La.1982); State v. Moody, 393 So. 2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So. 2d 559 (citing State v. Richardson, 425 So. 2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So. 2d 1367, 1371.
This court recently recognized that "[w]hen a defendant claims that he acted in self-defense, the State has the burden of establishing beyond a reasonable doubt that he did not act in self defense." State v. Alexander, 04-788, p. 1 (La.App. 3 Cir. 11/17/04), 888 So. 2d 401, 402. (citing State v. Brown, 414 So. 2d 726 (La.1982)). The defendant claims that the state failed to prove beyond a reasonable doubt that the homicide was not committed in self-defense; thus, the conviction should be reversed. Under the Jackson standard, this court must determine whether any rational finder of fact could have found that the evidence, viewed in the light most favorable to the prosecution, proved beyond a reasonable doubt that the defendant did not act in self-defense. In his brief to this court, the defendant does not enumerate facts alleged to support his allegation that he reasonably believed he was in imminent danger, sufficient to show that the homicide was justifiable under La.R.S. 14:20. Therefore, in order to fully analyze the defendant's claim, we will discuss all of the events occurring on the night in question in light of the actions or statements which the defendant may have reasonably perceived to be threatening. In order to clarify the events, we will discuss the two altercations separately.
*342 At trial, five witnesses testified that they were present at either one or both of the two separate altercations between the defendant and Duhon on the night of December 5, 2003. The defendant also testified. The testimony of the various witnesses conflicts on several points.
THE FIRST ALTERCATION
On the evening in question, the defendant and Duhon were "hanging out" with Jason Christian and Nathaniel Davis. At some point during that evening, the defendant and Duhon began an argument which escalated into a physical fight. Both Christian and Davis testified that they broke up the fight, and that Duhon and the defendant each left the scene separately. However, the defendant testified that Christian and Davis, rather than breaking it up, encouraged the fight, and then held onto his arm and his shirt as he was trying to walk away.
Before leaving the scene, Duhon allegedly made threatening statements to the defendant. According to Christian's testimony, Duhon told the defendant he was going to "burn" him. Whitney Phillips, who witnessed the fight, also testified that she heard Duhon tell the defendant "I'm going to burn you before you burn me."
Davis testified that after the fight, he continued to talk to the defendant, who had gone down the street to use a pay phone. Davis also stated that after the defendant made a call, a gray car pulled up, and the defendant asked its occupants to take him to his home so that he could get his gun. Davis then said that the defendant left the scene, but in a different car. Whitney Phillips also stated that the defendant went to the home of her mother, Victoria Phillips, to use the telephone, but she did not state whether she saw him leave the area. The defendant also testified that he went to the home of Phillips' mother, Victoria Elaine Phillips, to use the phone, but after he was unable to find someone willing to pick him up, he left the area on foot. Victoria Phillips testified that the defendant used a pay phone located adjacent to her home, but she did not state whether she saw the defendant leave the area.
According to witness Alton Phillips, Whitney Phillips' brother, the defendant came to his house in a blue or silver car with two other male individuals, told Phillips of the altercation, said that he had been "jumped," and asked Phillips to "watch his back." Phillips stated that when he refused to offer him assistance, the defendant left Phillips' house in the same car.
Christian and Davis testified that as the defendant departed, Duhon also left the scene in an automobile and subsequently arrived at the home of his grandmother. Whitney Phillips stated that Duhon got into a car driven by Albert Francis. Albert Francis testified that he arrived at the scene of the first altercation after Duhon and the defendant had been separated and that Duhon got into his car. Francis stated that Duhon told him that he had beaten up the defendant. Francis then testified that after driving him around for some time, he dropped Duhon off at the corner of Magnolia and Fourteenth, adjacent to Duhon's grandmother's house. Francis then stated that Duhon told him that he was finished with the fight, and that it was over. Francis then left the scene.
Following the departures of the defendant and Duhon from the scene of the first altercation, Christian stated that he and Davis left the scene to "walk around the [neighbor]hood." Davis stated that he and Christian "went back to the corner" where they were hanging out. Davis and Christian each stated that they were together near Duhon's grandmother's house when *343 Duhon arrived at that location, and that they spoke with him at that time. Davis testified that he and Christian left that area briefly but later returned. At that time, Duhon was still outside his grandmother's house. At that point, Davis testified, he told Duhon that he should go inside his grandmother's house because the defendant had said he was going to get a gun.
THE SECOND ALTERCATION
Shortly after Duhon arrived at his grandmother's home, the defendant also arrived at that location. Christian and Davis testified that the defendant arrived in a blue car. The defendant testified that he happened to be walking through the area on his way home when he came upon the location where Christian, Davis and Duhon were situated. The defendant further stated that a blue car, driven by Leonard Simpson, had pulled up and that Simpson had gotten out to speak to him when he first saw the three approaching. Simpson also testified that he first saw the defendant walking on Magnolia Street and that when he stopped to talk to him, he saw Christian, Davis and Duhon approach.
Alton Phillips, who testified that the defendant had unsuccessfully sought his assistance after the first altercation, stated that he later went to look for the defendant and that he drove his blue car to the area around Magnolia Street. He stated that when he first drove through the area he did not see anyone, but that on his second pass, he saw Duhon and his friends, as well as the car in which he had earlier seen the defendant. Phillips stated that Duhon and the defendant were exchanging words, and that the friends of Duhon were attempting to end the argument. He also stated that he told the group to "just let them get it off their chest now because them boys they're going to fight either tonight, tomorrow and then get drunk later on. So y'all might as well let them fight now."
Simpson, who stated that he had arrived at the scene in his blue car, also testified that Alton Phillips was present, and that Phillips had a firearm. He further testified that when Duhon and his two friends approached the defendant, Duhon "ran up" on the defendant with a gun in his hand. Simpson said that he yelled a warning at the defendant, and that the defendant then swung first his left, and then his right arm to protect himself. Similarly, the defendant testified that while he was talking to Simpson, Phillips pulled up, and that he was wielding a gun. The defendant stated that when Simpson yelled out a warning, he reflexively swung back because he knew that Duhon was running up to him. The defendant then explained that he had a knife in his hand at the time because he always carried a knife when he walked the streets late at night. The defendant also stated that Duhon had a gun, and that although he did not see it because his back was turned, the gun fell to the ground. Later however, the defendant testified that he did not see a gun in Duhon's possession, nor did he look for a gun on the ground. He stated rather, that Duhon had "a weapon" and that he had something in his pants that the defendant couldn't see. The defendant acknowledged that he did not mention Phillips' possession of a gun to the police upon subsequent questioning.
The defendant testified that after he stabbed Duhon, and as he was leaving the scene, he told Davis to call an ambulance. At that point, Duhon's friends told the defendant to leave. The defendant stated that he got into Simpson's car and that they went to the residence of a cousin of the defendant. Simpson said that he dropped the defendant off at a location on Kaliste Saloom Road. The defendant testified that he slept on his cousin's couch, and *344 later received a call informing him that he was being sought by the police for the death of Duhon. The defendant subsequently turned himself in to the police.
The testimony of the witnesses who saw the altercation which resulted in the death of Duhon is inconsistent. Davis, Christian, Alton Phillips and Whitney Phillips testified that they did not see Duhon with a gun, or any other type of weapon, while the defendant and Leonard Simpson both testified that Duhon was armed and posed a threat to the defendant. It is well settled that the factfinder is free to accept or reject some, none, or all of any witness's testimony. Pursuant to Kennerson and the jurisprudence cited therein, we are unable to conclude the jury was unreasonable in accepting as credible the testimony of the witnesses who stated that Duhon did not pose a threat to the defendant, and in rejecting the conflicting testimony of the other witness and the defendant himself. We find, therefore, that the jury was not unreasonable in ultimately finding the defendant guilty as charged.
Accordingly, the assignment lacks merit.
SUPPLEMENTAL ASSIGNMENT OF ERROR
In his supplemental brief to this court, the defendant asserts that the trial court erred in allowing the jury, during deliberations, to listen to an audio tape of his confession and to view written evidence without a waiver of his rights under La. Code Crim.P. art. 793.
Louisiana Code of Criminal Procedure article 793 provides that jurors must rely on their memories during deliberations, and that testimony shall not be repeated to the jury. Further, Article 793 permits the trial court to allow, upon the request of a juror, the physical examination of any object or document admitted into evidence, when that examination is necessary during the deliberative process.
In State v. Broussard, 598 So. 2d 1302 (La.App. 3 Cir.1992), this court recognized the policy basis of Article 793, as follows:
Our Louisiana Supreme Court has made it abundantly clear that allowing a jury to review evidence or testimony such as audiotapes or transcripts during deliberations is reversible error because of the possibility that jurors might give undue weight to that limited portion of the oral testimony adduced at trial. State v. Adams, 550 So. 2d 595 (La.1989); State v. McCully, 310 So. 2d 833 (La. 1975); State v. Freetime, 303 So. 2d 487 (La.1974), appeal after remand, 334 So. 2d 207 (La.1976).
Broussard, 598 So.2d at 1303.
The supreme court discussed the requirements for waiving the statute in Adams, 550 So.2d at 599:
Because the statute contains prohibitory language, the trial judge has no discretion to make exceptions. "The general reason for the prohibition is a fear that jurors might give undue weight to the limited portion of the verbal testimony thus brought into the room with them." State v. Freetime, 303 So. 2d 487, 488 (La.1974), aff'd after remand, 334 So. 2d 207 (La.1976). This court has held that the jury's review of written evidence for its verbal contents in violation of La.Code Crim.P. art. 793 constitutes reversible error. State v. Perkins, 423 So. 2d 1103, 1110 (La.1982); Freetime, 303 So.2d at 490. Just as a party may knowingly and voluntarily waive his constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), parties may agree to waive a statutory provision such as La.Code Crim.P. art. 793. Such an agreement must be in clear express language and must be reflected in the record.
*345 During deliberations, the jury asked for the audio recording of the defendant's statement to the police and for all other evidence, except the photograph of the police lineup. When the jury notified the trial judge of its request, the trial judge brought the court into order. The following exchange took place between the trial judge, the prosecuting attorney, Mr. Prather, and defense counsel, Mr. Register (emphasis added):
BY THE COURT: The jury has a question. We'll get the defendant in. We'll come to order and the defendant is present with his attorney. The jurors have sent in a note asking for exhibits. Number 1 is the tape of the defendant's statement. Y'all want to send in the defendant's statement?
BY MR. PRATHER: It's been offered and introduced.
BY MR. REGISTER: I don't have a problem.
BY THE COURT: But do we send in the recorder with it?
BY MR. REGISTER: My only concern that's why I don't know if we didn't play the tape.
BY THE COURT: Right.
BY MR. REGISTER: But it is in evidence. So I don't know if we play it in open court or if they can take it in there. I don't think they can take a recorder in there.
BY THE COURT: That's my question about the recording. Do y'all want to bring them in and play it in the courtroom?
BY MR. PRATHER: Whatever you want.
BY THE COURT: Can y'all agree to that?
BY MR. REGISTER: That's fine. Or a transcript; I don't know followed by the transcript. That might be quicker. If the transcript is offered in evidence, could they take that with them? You want to do it that way?
BY MR. PRATHER: Yeah, but the transcript is not evidence.
BY THE COURT: The transcript was not offered.
BY MR. REGISTER: Okay. Well, we're going to have to play the tape then.
BY THE COURT: So can y'all both agree to that we'll instead of letting it go in the jury room, that they can come out and we'll play it for them in the courtroom?
BY MR. PRATHER: That's fine with me.
BY THE COURT: Instead of having the tape recorder in the jury room. Okay. The other thing, they want the pictures of the crime scene and pictures of the victim. And they want the coroner's report. Now, there's no report, but there's a death certificate, right?
BY MR. PRATHER: Right.
BY THE COURT: Should we send in the death certificate just with a note there's no coroner's report. Is that okay?
BY MR. REGISTER: Right.
BY MR. PRATHER: That's correct.
BY THE COURT: I'll put at the bottom there's no report, but that we're sending in the okay.
BY MR. PRATHER: Now, if we're going to play the tape, Judge, you want me to get the system to play it because we have that upstairs?
BY THE COURT: What?
BY MR. PRATHER: If we're going to play the tape, you want me to get the system to play it?
BY THE COURT: Right.
*346 BY MR. REGISTER: Your Honor, you said the pictures of the crime scene and what else? What crime scene pictures?
BY THE COURT: Picture of the crime scene. I guess
BY MR. PRATHER: There's no pictures of the crime scene.
BY THE COURT: What pictures are they talking about?
BY MR. REGISTER: That's what I was trying pictures that I introduced or
BY THE COURT: One, two and three, I guess.
BY THE CLERK: One, two and three are Mr. Register's pictures.
BY THE COURT: You think that's what they're talking about?
BY MR. PRATHER: Or the hand drawing if that's the crime scene. I don't know what
BY MR. REGISTER: Give them everything.
BY MR. PRATHER: I'm happy with that, too.
BY THE COURT: Is that all we'll send in all the exhibits?
BY MR. PRATHER: The exhibits, all of them, the map, all that.
BY THE COURT: We don't need to send that in, the photo lineup.
BY MR. PRATHER: Photo lineup?
BY THE COURT: No.
BY MR. PRATHER: They didn't ask for it.
BY THE COURT: We'll send in the other exhibits. I'll put "No report" I just put, "No report, but there is Exhibit State 4, Death Certificate."
BY MR. REGISTER: Right.
(WHEREUPON, A BRIEF RECESS WAS TAKEN.)
AFTER RECESS
BY THE COURT: I'll just explain the procedure. The jury will come in without any statements by the attorneys, we're just going to by request of the jury, the tape of the defendant's statement will be played in open court. And y'all have agreed to that procedure?
BY MR. REGISTER: Yes, sir.
BY MR. PRATHER: Yes, Your Honor.
BY THE COURT: Then we'll send them back with the exhibits that we've agreed that they can take into the jury room. And I will explain to them that there is no coroner's report, but Exhibit 4 is a death certificate. We can bring them in.
(WHEREUPON, THE JURY WAS RETURNED TO THE COURTROOM.)
BY THE COURT: Before we give you the exhibits, you've requested the tape of the defendant's statement as per your request
BY MR. PRATHER: Wait, there's two missing or one.
BY THE CLERK: It's just an extra chair.
BY THE COURT: Well, let's we should get that on the record. Do you waive polling of the jury?
BY MR. REGISTER: Yes.
BY MR. PRATHER: Waive polling, Judge. The alternate is not present.
BY THE COURT: Okay. But again, you requested some exhibits, which you'll be able to take into the jury room. But you also requested the tape. The tape will be played in open court. So we'll proceed to play the tape.
(WHEREUPON, THE TAPE RECORDED STATEMENT OF JUSTIN SAVOY WAS PLAYED.)
BY THE COURT: Go ahead and hand the exhibits to Mr. Brasseaux. *347 And the jury had requested a coroner's report. And there is no coroner's report in evidence. There's an exhibit. State Exhibit 4 is a death certificate. We can retire the jury.
(WHEREUPON, THE COURT WAS AT RECESS DURING DELIBERATIONS.)
It is clear that, when presented with the jury's request for the audiotape and other items of evidence, the defendant readily agreed that the evidence should be provided, only questioning the procedural method by which the jury should listen to the audiotape. Defense counsel expressly stated, when the discussion turned to which particular items they were requesting, that the court should "[g]ive them everything." We find this to be a clear and express waiver of the provisions of Article 793. We find, therefore, that having waived the provisions of Article 793, the defendant is precluded from raising this issue on appeal.
CONCLUSION
The defendant's conviction and sentence are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1299423/ | 578 N.W.2d 428 (1998)
254 Neb. 578
Bonnie J. MARSHALL, Personal Representative of the Estate of Thomas J. Marshall, Deceased, Appellant,
v.
DAWSON COUNTY PUBLIC POWER DISTRICT, Appellee.
No. S-96-1136.
Supreme Court of Nebraska.
May 8, 1998.
*429 David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., Kearney, for appellant.
Steven E. Guenzel, of Barlow, Johnson, Flodman, Sutter, Guenzel & Eske, Lincoln, for appellee.
Patrick W. Healey, of Healey & Wieland Law Firm, Lincoln, for amicus curiae Nebraska Rural Electric Association.
WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.
CONNOLLY, Justice.
Following the death of her husband due to electrocution, the appellant, Bonnie J. Marshall, as personal representative of the estate of Thomas J. Marshall, brought a claim pursuant to the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 13-901 to 13-926 (Reissue 1991 & Cum.Supp.1994), against the appellee, Dawson County Public Power District (DCPPD). Marshall alleged that her husband was electrocuted due to the failure of DCPPD to inspect wiring on a boat dock not owned by DCPPD and to warn Thomas Marshall of dangerous wiring on the boat dock. The district court determined that DCPPD did not have a duty to inspect the wiring on the boat dock and granted summary judgment to DCPPD. We conclude there is no duty on the part of a public utility to inspect lines owned or controlled by its customers unless the public utility has actual notice of a dangerous condition. We affirm.
BACKGROUND
In 1989, Bonnie and Thomas Marshall purchased a cabin located at Johnson Lake. The Mallard Beach Association, an association of cabin owners at Johnson Lake, maintained a dock on the lake. Members of the association were assessed dues to pay for upkeep of the dock and worked together to keep the dock in repair. Members of the association removed the dock from the lake each fall and placed it back in the lake each spring. The dock was equipped with a system of lights powered by electricity. DCPPD supplied power to the dock through a line that was attached to a meter pole 6 feet from the dock. There is no dispute between the parties that the electric line up to the meter was owned by DCPPD, while the lines past the meter, including the electric lines on the dock, were not DCPPD's property. Rather, the electric wiring past the meter is referred to by both parties as being "the customer's," who is presumably the Mallard Beach Association.
*430 On July 8, 1993, a severe storm passed through the Johnson Lake area, moving several sections of the dock out of alignment and damaging service to the meter pole. As a result, two linemen from DCPPD replaced the powerline running to the meter pole. When the linemen performed the repair, they observed there was no load on the electrical system. Specifically, they saw what appeared to be a residential electric fuse box attached to the meter pole with the disconnect switch set to the "off" position. In addition, the meter included a plug outlet that had nothing plugged into it, and no lines were leading out of the service boxes below the meter. Because a line was not connected or plugged into the service box and the disconnect switch was off, the linemen perceived no risk associated with reenergizing the system and they proceeded to do so. The linemen did not look at or go onto the dock because they saw no reason to do so. The record reflects that the linemen were not trained in the National Electric Code because power distribution does not fall under the scope of that code. Rather, it is the wiring beyond the customer's meters, such as the wiring on the boat dock, that is governed by the National Electric Code.
On July 25, 1993, Thomas Marshall assisted other members of the Mallard Beach Association in realigning the damaged sections of the dock. While working on the dock, Thomas Marshall came in contact with electricity from the dock lighting and was electrocuted. An electrical inspector for the State of Nebraska inspected the dock's wiring on August 19, found violations of the National Electric Code, determined that the dock wiring was "proximately dangerous" to human life, and issued a disconnect notice for the electrical service to the dock.
Marshall filed the instant action pursuant to §§ 13-901 to 13-926, alleging that DCPPD was negligent in failing to inspect the dock and warn of the danger. DCPPD's answer did not allege that any of the exceptions to coverage of the Political Subdivisions Tort Claims Act in § 13-910 applied. At the summary judgment hearing, Marshall offered into evidence exhibit 8. Exhibit 8 purported to be an expert opinion regarding what the linemen could have or should have seen regarding the condition of the wiring on the dock if they had looked at it. The district court refused to admit exhibit 8 because the opinion was beyond the expertise of the witness and was not relevant. The court then determined that DCPPD did not have a duty to inspect the electric wiring on the dock and granted summary judgment in favor of DCPPD.
ASSIGNMENTS OF ERROR
In summary, Marshall assigns that the district court erred in (1) determining that DCPPD did not have a duty to inspect the dock and warn of the electrical hazards on the dock, (2) granting summary judgment to DCPPD, and (3) failing to admit exhibit 8 into evidence.
STANDARD OF REVIEW
Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Chelberg v. Guitars & Cadillacs, 253 Neb. 830, 572 N.W.2d 356 (1998); Miller v. City of Omaha, 253 Neb. 798, 573 N.W.2d 121 (1998).
ANALYSIS
Marshall contends that DCPPD had a duty to inspect the dock and warn of the dangerous nature of its wiring because the dangerous nature of the wiring would have been readily apparent had the linemen looked at the dock. Essentially, Marshall contends that DCPPD should have known that the wiring on the dock was defective and, in light of this, should have refused to reenergize the lines or should have warned Thomas Marshall of the danger. DCPPD contends that it does not have a duty to inspect a customer's wiring unless it has actual notice of a danger.
A power company engaged in the transmission of electricity is required to exercise reasonable care in the construction and maintenance of its lines. Engleman v. *431 Nebraska Public Power Dist., 228 Neb. 788, 424 N.W.2d 596 (1988); Tiede v. Loup Power Dist., 226 Neb. 295, 411 N.W.2d 312 (1987). However, power companies are not insurers and are not liable for damages in the absence of negligence. Engleman v. Nebraska Public Power Dist., supra; Tiede v. Loup Power Dist., supra. It is well settled that unless a public utility has actual knowledge of a dangerous condition, the public utility has no duty to inspect or maintain power wires or appliances before supplying electrical power when those wires or appliances are owned or controlled by the customer. Central Power & Light Co. v. Romero, 948 S.W.2d 764 (Tex. App.1996); Carter v. Bangor Hydro-Elec. Co., 598 A.2d 739 (Me.1991); Upton v. Magnolia Elec. Power Ass'n, 511 So. 2d 939 (Miss. 1987); Jenks v. Hill, 504 F. Supp. 1130 (W.D.Okla.1981); Summers v. Union Elec. Co., 565 S.W.2d 677 (Mo.App.1978); New Mexico Electric Service Co. v. Montanez, 89 N.M. 278, 551 P.2d 634 (1976); Kroger v. Omaha Public Power District, 523 F.2d 161 (8th Cir.1975) (applying Iowa law); Naki v. Hawaiian Elec. Co., 50 Haw. 416, 442 P.2d 55 (1968); Martin v. Northern States Power Co., 245 Minn. 454, 72 N.W.2d 867 (1955); Delaney v. Town of Etowah, 182 Tenn. 386, 187 S.W.2d 531 (1945); Oesterreich v. Claas, 237 Wis. 343, 295 N.W. 766 (1941).
In the instant case, it is undisputed that the wiring beyond the meter pole, including the wiring on the dock, was owned and controlled by the customer and not by DCPPD. It is also undisputed that DCPPD did not have actual knowledge or notice of any defects in the wiring on the dock. Marshall's allegation that DCPPD "should have known" of the dangerous wiring because it would have become obvious if the linemen had looked at the dock is not sufficient to create a duty of inspection on the part of DCPPD. See, e.g., Jenks v. Hill, supra (constructive knowledge is insufficient where public utility has no independent duty to inspect, maintain, or repair). Accordingly, DCPPD did not have a duty to inspect or maintain the wiring of the dock, and summary judgment was appropriate.
Having determined that there was no duty on the part of DCPPD to inspect the dock, we also determine that the refusal of the trial court to admit into evidence exhibit 8, an exhibit purporting to give an opinion of what the linemen could have or should have seen had they inspected the dock, was appropriate. The order of the district court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619842/ | 13 So.3d 538 (2009)
COMMUNITY ASPHALT CORP., a Florida Corporation for Profit, and Alfredo Martinez, individually, Appellants,
v.
Joaquin BASSOLS, Appellee.
No. 3D07-1317.
District Court of Appeal of Florida, Third District.
July 1, 2009.
*539 Marlow, Connell, Abrams, Adler, Newman & Lewis and Rosemary B. Wilder, Coral Gables, for appellants.
Robert S. Glazier, Miami; Alejandro Alvarez, Miami, for appellee.
Before RAMIREZ, C.J., and COPE and SALTER, JJ.
RAMIREZ, C.J.
Community Asphalt Corporation and Alfredo Martinez appeal the trial court's order granting a new trial based upon an improper closing argument. We reverse because the comments defense counsel made during closing argument were insufficient to warrant a new trial.
This case involved a motorcycle accident in which Martinez's truck struck Joaquin Bassols. Bassols sued Martinez, the driver, and Community Asphalt, the owner of the dump truck. Various witnesses testified at trial and both parties presented expert testimony. Credibility became a central issue in the case. Bassols' sister testified about negotiations Bassols had with marketing brand Red Bull in relation to a contract for $1.4 million. The jury ultimately found no liability, and Bassols moved for a new trial based upon comments made during closing argument. In its order granting a new trial, the court noted that the defense counsel's comments created the inference that available witnesses would have testified contrary to the plaintiff, the plaintiff's sister, and the rest of the family.
Bassols maintains that during closing argument, defense counsel made an impermissible argument that Bassols had failed to call witnesses:
Mr. Bassols admitted on the stand that at no time before the day that he heard his sister testify did he know about a $1.4 million deal with Red Bull. He didn't even know it was Red Bull. He thought it was maybe Sony. He wasn't sure. He let his sister handle all of that stuff. News to him: $1.4 million. You should expect more evidence than his sister coming into court. You should expect something from Red Bull.
Bassols objected, and the trial court overruled the objection. Bassols contends that this argument violated the rule that when witnesses are equally available to both parties, no inference should be drawn or comments made on the failure of either party to call the witness. Haliburton v. State, 561 So.2d 248, 250 (Fla.1990); Lowder v. Econ. Opportunity Family Health Ctr., Inc., 680 So.2d 1133, 1135-36 (Fla. 3d DCA 1996). We conclude that the objection was properly overruled. The phrase "something from Red Bull" did not necessarily mean a witness. After the objection was overruled, the next statement from defense counsel was, "You should expect a contract." This was a permissible argument. A party is allowed to comment on the lack of evidence supporting the opposing party's position. It was permissible for the defense to point out that Bassols had not produced a contract with Red Bull. Defense counsel next said: *540 "[y]ou should expect perhaps one of his coaches to come in here. You should expect someone to come in and talk about his true opportunities to make the Olympics, not just Mr. Bassols' word for it or his sister's word for it". While Bassols maintains that the argument violates Haliburton and Lowder, Bassols did not object. Defense counsel thereafter repeated a similar argument. Bassols did not object.
In our view, the comments were neither highly prejudicial nor inflammatory so as to rise to the level of a mistrial. See Murphy v. Int'l Robotic Sys. Inc., 766 So.2d 1010 (Fla.2000); Norman v. Gloria Farms, Inc., 668 So.2d 1016 (Fla. 4th DCA 1996).
We therefore reverse the order granting a new trial, and order reinstatement of the jury's verdict. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619882/ | 955 So.2d 715 (2007)
Karen JOHNSON
v.
Mustafa MISIRCI and ABC Insurance Company.
No. 2006-CA-1136.
Court of Appeal of Louisiana, Fourth Circuit.
March 28, 2007.
*716 Raymond P. Ladouceur, Jane C. Alvarez, Ladouceur and Ladouceur, L.L.C., New Orleans, LA, for UM Too, L.L.C.
B. Frank Davis, Howard B. Kaplan, Bernard Cassisa Elliott & Davis, A PLC, Metairie, LA, for Landmark American Insurance Company.
(Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, Sr., Judge TERRI F. LOVE).
*717 TERRI F. LOVE, Judge.
This appeal arises from an alleged injury suffered while on the job by Mrs. Karen Johnson. Her worker's compensation claim was denied when she tested positive for marijuana. Mrs. Karen Johnson then filed suit against multiple defendants alleging negligence and strict liability. Landmark American Insurance Company, a third party defendant that insured Mustafa Misirci, d/b/a UM Too, L.L.C., alleges that it owes no duty to defend or indemnify the insured because the lawsuit stems from a worker's compensation claim and was under an insured contract. The trial court granted a motion for summary judgment in favor of UM Too, L.L.C., finding that Landmark American Insurance Company's policy covered and indemnified UM Too, L.L.C. The trial court also found that Landmark American Insurance Company had a duty to defend UM Too, L.L.C. However, the trial court declined to assess penalties against Landmark American Insurance Company for its failure to timely provide the cost of defense to UM Too, L.L.C. Finding that conflicting provisions regarding insurance coverage of liability assumed in an insured contract create ambiguity and that Landmark American Insurance Company did not arbitrarily refuse to provide a defense, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Mrs. Karen Johnson ("Mrs. Johnson") worked as a prep cook at the Italian Pie Restaurant ("Italian Pie") located in Orleans Parish. Upon her arrival at work on August 29, 2003, she turned on the lights and was allegedly[1] hit with a tile from the ceiling. Mrs. Johnson filed a worker's compensation claim, which was denied when she tested positive for, marijuana. Thereafter, she filed a petition seeking damages based on negligence and strict liability against Mustafa Misirci ("Mr. Misirci"), as the owner and operator of the Italian Pie, and ABC Insurance Company ("ABC").
Mr. Misirci, d/b/a UM Too, L.L.C. ("UM"), leased the space utilized as the Italian Pie from Rachel Investors, LLC ("Rachel"). The lease between Mr. Misirci and Rachel stipulated that the lessee indemnifies and assumes liability for damages and injuries occurring on the leased premises. Thus, Mr. Misirci, on behalf of UM, acquired a "Commercial General Liability Coverage" policy ("Policy") from Landmark American Insurance Company ("Landmark") to comply with the lease provision.
Mrs. Johnson asserted in her first supplemental and amended petition that Mr. Misirci was the owner of UM and operator of the Italian Pie. The pleading also added UM and Rachel as additional defendants. Rachel then filed a cross claim against UM and Mr. Misirci due to the lease provisions on indemnification and assumption of liability. Rachel also filed a third party demand against Essex Insurance Company ("Essex") as a third party defendant. Rachel, in its supplemental and amended third party demand, added Landmark as a third party defendant. Then, Rachel dismissed all claims against Essex without prejudice.
Mr. Misirci, individually and on behalf of UM, filed a reconventional demand against Mrs. Johnson alleging that she "faked" the accident and was liable for litigation fraud. Mr. Misirci, individually and on behalf of *718 UM, filed a third party demand making Landmark a third party defendant alleging it owed defense and indemnity. Mr. Misirci, individually and on behalf of UM, filed a motion for summary judgment to dismiss Mrs. Johnson's claims. The trial court granted the summary judgment and dismissed all of Mrs. Johnson's claims against Mr. Misirci and UM with prejudice.
Landmark filed a motion for summary judgment or alternatively a declaratory judgment asserting that the Policy did not require it to defend or indemnify UM. UM filed a cross motion for summary judgment alleging that ambiguities in the Policy mandated that Landmark provide a defense against Mrs. Johnson and seeking penalties for Landmark's failure to defend. The trial court granted UM's cross motion for summary judgment and held: 1) that the Policy provided coverage and indemnification to UM under the assumed contract with Rachel; 2) that Landmark had a duty to defend UM; and 3) that Landmark was not liable for penalties for failure to timely provide the cost of defense to the insured.
Landmark timely filed a devolutive appeal asserting that the trial court erred by finding that the worker's compensation exclusion was ambiguous and that the trial court erred in granting UM's cross motion for summary judgment. UM answered the appeal and asserts that the trial court erred by failing to assess penalties against Landmark for its failure to timely provide the cost of defense.
SUMMARY JUDGMENT
Appellate courts review motions for summary judgment with the same de novo standard as the trial court. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. The reviewing court examines the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits" to find genuine issues of material fact. La. C.C.P. art. 966(B). If the court finds no genuine issues of material fact, the "mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B). The mover bears the burden of proof. La. C.C.P. art. 966(C)(2).
Interpretation of Insurance Contracts
In Louisiana, insurance policies are "construed by using the general rules of interpretation of contracts." Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580. Thus, we must determine the intent of the parties. Id. However, the interpretation of the intent of the parties and the insurance policy provisions must be reasonable and not create a "perversion of the words." Id. Ambiguous insurance policy provisions are construed against the insurer and in favor of the insured. Id., 02-1637, p. 4, 848 So.2d at 580. "[A]n ambiguity exists in an insurance policy when the pertinent provision can reasonably be construed in two different ways." McCarthy v. Berman, D.C., 95-1456 (La.2/28/96), 668 So.2d 721, 726.
Insurer's Duty to Defend
"[A]n insurer's duty to defend lawsuits against its insured is broader than its liability for damage claims." Mossy Motors, Inc. v. Cameras America, 04-0726, p. 6 (La.App. 4 Cir. 3/2/05), 898 So.2d 602, 606. This Court enumerated the insurer's duty to defend as follows:
A liability insurer's duty to defend and the scope of its coverage are separate and distinct issues. Dennis v. Finish Line, Inc., 93-0638 (La.App. 1 Cir. 3/11/94), 636 So.2d 944, 946. It is likewise well-recognized that the obligation of a liability insurer to defend suits against its insured is generally broader than its obligation to provide coverage for damages claims. Steptore v. Masco *719 Construction Co., Inc., 93-2064, p. 8 (La.8/18/94), 643 So.2d 1213, 1218. The issue of whether a liability insurer has the duty to defend a civil action against its insured is determined by application of the "eight-corners rule," under which an insurer must look to the "four corners" of the plaintiff's petition and the "four corners" of its policy to determine whether it owes that duty. Vaughn v. Franklin, 00-0291, p. 5 (La.App. 1 Cir. 3/28/01), 785 So.2d 79, 84. Under this analysis, the factual allegations of the plaintiff's petition must be liberally interpreted to determine whether they set forth grounds which raise even the possibility of liability under the policy. Id. In other words, the test is not whether the allegations unambiguously assert coverage, but rather whether they do not unambiguously exclude coverage. Id. Similarly, even though a plaintiff's petition may allege numerous claims for which coverage is excluded under an insurer's policy, a duty to defend may nonetheless exist if there is at least a single allegation in the petition under which coverage is not unambiguously excluded. Employees Ins. Representatives, Inc. v. Employers Reinsurance Corp., 94-0676, p. 3 (La.App. 1 Cir. 3/3/95), 653 So.2d 27, 29.
Generally, an insurer's duty to defend lawsuits against its insured is broader than its liability for damage claims. The duty to defend is determined by the allegations of the plaintiff's petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Yount v. Maisano, 627 So.2d 148 (La.1993); Matheny v. Ludwig, 32,288 (La.App. 2 Cir. 9/22/99), 742 So.2d 1029. Thus, assuming all the allegations of the petition to be true, if there would be both coverage under the policy and liability to the plaintiff, the insurer must defend the lawsuit regardless of its outcome. Yount, supra; Matheny, supra. The duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. Steptore v. Masco Const. Co., Inc., 93-2064 (La.8/18/94), 643 So.2d 1213; Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App. 2 Cir. 3/31/99), 731 So.2d 482.
Id., 04-0726, pp. 5-7, 898 So.2d at 606-07. This Court examines the "four corners of the plaintiff's petition and the four corners" of the insurance policy to determine if a duty to defend exists based on the "eight-corners rule." Grimaldi Mech., L.L.C. v. Gray Ins. Co., 05-0695, p. 8 (La.App. 4 Cir. 6/2/06), 933 So.2d 887, 891. This requires a liberal interpretation of the factual allegations contained in the plaintiff's petition. Id.
The Policy
Rachel required UM to indemnify it "against all claims, losses, liabilities, injuries or damages of whatsoever nature" in congruence with the leased premises. Thus, UM obtained the Policy from Landmark for indemnity. In regards to insured contracts and worker's compensation, the Policy provides:
SECTION I COVERAGES
COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
. . . .
2. Exclusions
This insurance does not apply to:
. . . .
b. Contractual Liability
"Bodily injury" or "property damage" for which the insured is obligated to pay damages by reason of the assumption of liability in a contract *720 or agreement. This exclusion does not apply to liability for damages:
(1) That the insured would have in the absence of the contract of agreement; or
(2) Assumed in a contract or agreement that is an "insured contract", provided the "bodily injury" or "property damage" occurs subsequent to the execution of the contract or agreement. Solely for the purposes of liability assumed in an "insured contract", reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of "bodily injury" or "property damage", provided:
(a) Liability to such party for, or for the cost of that party's defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies alleged.
. . . .
d. Workers' Compensation And Similar Laws
Any obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law.
e. Employer's Liability
"Bodily injury" to:
(1) An "employee" of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured's business; or
(2) The spouse, child, parent, brother or sister of that "employee" as a consequence of Paragraph (1) above.
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.
This exclusion does not apply to liability assumed by the insured under an "insured contract". (Emphasis added)
The Policy defines an insured contract, in pertinent part, as follows:
9. "Insured contract" means
a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire to premises while rented to you or temporarily occupied by you with permission of the owner is not an "insured contract";
. . . .
f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury" or "property damage" to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
An endorsement ("Endorsement") to the Policy amends Section I(A)(2)(e) to read: "This exclusion also applies to "temporary workers" and "employees" of subcontractors as well as liability assumed by the insured under an "insured contract"."
Alleged Ambiguity
Landmark avers that the clear and unambiguous language of the Policy *721 documents that it has no duty to defend UM because the worker's compensation exclusion applies; that the insured contract endorsement excludes coverage for all liability assumed by the insured under an insured contract; and if the insured contract endorsement does not apply, UM is not the proper party to benefit from the coverage.
It is undisputed that Mrs. Johnson's alleged injuries occurred during the course and scope of her employment. However, once her worker's compensation claim was denied because of a positive drug test, she filed a petition asserting negligence, which is not covered by worker's compensation. Mrs. Johnson's petition and first supplemental and amended petition does not state a worker's compensation claim, but instead, states a strict liability and negligence claim arising from her injury while working at the Italian Pie. Specifically, Mrs. Johnson avers that the defendants were aware: 1) of the defective condition of the building/ceiling; 2) that stored chairs put weight on the ceiling, which created a dangerous condition; 3) that poorly supported tubing put pressure on the ceiling; 4) that part of the ceiling had fallen prior to her injury; 5) that safety guidelines were not followed; and 6) that they failed to take reasonable steps to prevent her injury.
As stated above, an insurer's duty to defend the insured is more extensive than its liability. Giving a liberal construction to Mrs. Johnson's petition and assuming every fact alleged by Mrs. Johnson is true, the lawsuit falls outside the purview of worker's compensation. Thus, we find Landmark's argument that it owes UM no defense due to the worker's compensation exclusion is without merit. We find Landmark's argument that UM is not the proper party to benefit from the coverage is also without merit. The Policy provides coverage to UM, which indemnifies Rachel.
Landmark then asserts that the Endorsement excluding coverage for liability assumed by the insured under an insured contract in Section I(A)(2)(e) precludes a duty to defend UM. It is undisputed that Rachel and UM's lease agreement is an insured contract. However, the Endorsement amends Section I(A)(2)(e), but does not refer to Section I(A)(2)(b) of the Policy, which states that exclusion does not apply to liability assumed under an insured contract. This creates an ambiguity as to whether Landmark intended to include insured contracts in one provision and exclude it in another. Therefore, two reasonable interpretations of coverage under the Policy exist. Ambiguous provisions are construed against the insurer.
The trial court correctly stated: "When you look at this file you say, I can't figure what you would ever cover." Further, the trial court noted that Mrs. Johnson made a strict liability claim, which it stated, "might not fly, but I think you still have to defend it." Due to the contradictions in the Policy regarding the exclusion of liability assumed in an insured contract in Section I(A)(2)(e) and Section I(A)(2)(b), we find that the Policy does not unambiguously exclude coverage and that Landmark owes a duty to defend UM against Mrs. Johnson's claims.
PENALTIES
The Louisiana Revised Statutes provide that insurers must pay or offer to settle claims within thirty days of "receipt of satisfactory proof of loss." La. R.S. 22:658. When the insurer fails to do so, the trial court may assess penalties if the failure is "arbitrary, capricious, or without probable cause." La. R.S. 22:658. The statute must be strictly *722 construed, as it is penal in nature. Sanders v. Int'l Indem. Co., 97-1061, p. 6 (La. App. 3 Cir. 2/4/98), 708 So.2d 772, 776. The trial court's decision to assess penalties pursuant to La. R.S. 22:658 is partially based on factual determinations and should not be reversed absent a showing that it is manifestly erroneous. A trial court's conclusion concerning the assessment of statutory penalties is in part a factual determination that should not be disturbed absent a finding that it is manifestly erroneous. Sanders, 97-1061, pp. 6-7, 708 So.2d at 776.
UM asserts that Landmark arbitrarily refused to provide a defense to Mrs. Johnson's claims and alleges that Landmark "knowingly misrepresented" the Policy provisions. However, the trial court stated that Landmark's insurance policy was the "worst insurance policy that" it "ever saw." The trial court further stated, in reference to Landmark's insurance policy: "When you look at this file you say, I can't figure what you would ever cover." The trial court refused to assess penalties for Landmark's failure to timely provide the cost of defense to UM, but provided no reasons.
Given the trial court's statement regarding the ambiguity in the Policy coverage and our own review of the policy provisions, we find that it was not arbitrary for Landmark to reasonably believe that it did not owe UM a defense to a claim that originated as a worker's compensation claim. We find that the trial court did not commit manifest error or abuse its discretion in refusing to assess penalties against Landmark.
DECREE
For the reasons assigned above, we find that the trial court did not err in granting the cross motion for summary judgment nor by declining to assess penalties against Landmark.
AFFIRMED.
NOTES
[1] There is evidence in the record that the ADT surveillance video documenting Mrs. Johnson's alleged injury showed the ceiling tile falling prior to her entering the area. She then allegedly pulled a chair over to reach the ceiling and rubbed the ceiling materials on her shoulder to "fake" a workers' compensation injury. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619888/ | 955 So.2d 934 (2007)
Jody OTTS and Amanda Otts, Appellants
v.
Donna LYNN, Individually and d/b/a Southern Foundations, Appellee.
No. 2005-CA-01876-COA.
Court of Appeals of Mississippi.
May 1, 2007.
*936 John C. Jopling, David C. Owen, Columbus, William Charles Cunningham, for appellants.
John R. White, for appellee.
*937 Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
CHANDLER, J., for the Court.
¶ 1. Jody and Amanda Otts sued Donna Lynn personally and d/b/a Southern Foundations for the paralysis Jody sustained when he was shot on Lynn's premises in Columbus, Mississippi. During an altercation with his sister, Lisa Otts, Jody was shot, paralyzing him from the waist down. Jody sued Donna Lynn, Lisa's girlfriend and alleged employer, claiming theories of premises liability, vicarious liability and negligence. The trial court granted summary judgment in favor of Donna Lynn, finding no genuine issues of material facts. Aggrieved, the Otts appeal, arguing:
I. WHETHER SUMMARY JUDGMENT WAS PROPER IF FACTS WERE CONTESTED.
II. WHETHER THE LOWER COURT FAILED TO APPLY THE APPROPRIATE STANDARD OF REVIEW FOR SUMMARY JUDGMENT.
III. WHETHER THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT WHERE THE APPELLEE'S MOTION FAILED TO COMPLY WITH THE UNIFORM CIRCUIT AND COUNTY COURT RULES.
¶ 2. Finding no error, we affirm.
FACTS
¶ 3. Jody Otts, an independent contractor, and his wife, Amanda, filed suit against Jody's sister, Lisa Otts, her girlfriend, Donna Lynn, and Lynn's company, Southern Foundations. Jody was paralyzed as a result of an altercation with Lisa on February 7, 1997, in which he was shot with a gun owned by Lynn.
¶ 4. Jody worked occasionally as a carpenter and independent contractor for Lynn. He had a history of drug and alcohol abuse. Approximately two days before the altercation in question, Lynn severed their working relationship when another worker reported that Jody had driven the company truck while under the influence of pills, marijuana and alcohol. Although Lynn fired Jody from his position as an independent contractor with her company, she allowed him to take over a former Southern Foundations' job building a carport, which was to be completed the next day on February 6, 1997.
¶ 5. On the night in question, Lynn and Lisa drove to Jody's house around 8:00 p.m. to retrieve the company truck that Jody had been using. At the time, Jody was not at home and had left the truck in his driveway. Jody had also left his tools in the truck. Lynn took the company truck back to her own home. After drinking at a bar for several hours, Jody went to Lynn's house sometime after midnight to retrieve his tools and ask for payment for the carport job. Amanda drove him because he had been drinking. Their young children also went along for the ride, because the couple did not want to leave them at home alone.
¶ 6. When Jody arrived at Lynn's home, Lisa was asleep and Lynn answered the door. Jody was upset and Lynn invited Amanda and him in to talk. Lynn testified at trial that Jody announced "it would take the law to get him out" and that she might as well call them. As Lynn and Jody were talking, Lisa awoke and entered the room. Lisa and Jody began arguing, and Amanda went back outside to the truck to check on the children. Lisa and Lynn both stated that they repeatedly told Jody to leave. When Lisa and Jody began exchanging physical blows, Lynn went into her office located in one of the home's bedrooms and called 911.
*938 ¶ 7. At some point in the argument, Lisa retreated to Lynn's bedroom and took Lynn's pistol from a bedside table. Lisa stated that she retrieved the gun, because she was in fear for her life after Jody had physically thrown her over furniture and ripped her clothing. Lisa went back into the room with Jody, holding the gun at her side. The two resumed their argument and Jody discovered the gun. Jody and Lisa began to wrestle for the gun. After a struggle, the gun went off, striking Jody and paralyzing him. Jody claims Lisa shot him accidentally. Lisa maintains that Jody shot himself.
¶ 8. The Otts sued Lisa, Lynn and Lynn's company, Southern Foundations, claiming issues of vicarious liability, premises liability and negligent maintenance of a firearm. Lynn, individually and d/b/a Southern Foundations, requested and was granted a summary judgment in her favor. The Otts requested a certification of final judgment against Lynn pursuant to Rule 54(c) of the Mississippi Rules of Civil Procedure, which was also granted.
¶ 9. The Otts appeal, arguing that summary judgment was improper because issues of material fact existed regarding Jody's claims for premises liability, vicarious liability, and negligence. They claim that a jury should have been able to decide whether: (1) Jody was a licensee or invitee at the time of the shooting on Lynn's property (which would support his premises liability claim), (2) Lisa was an employee of Southern Foundations (which would support his vicarious liability claim), and whether (3) Lynn negligently kept a loaded gun on her property which was used in the shooting.
¶ 10. The Otts further maintain that the circuit court applied an incorrect standard for summary judgment, because the court's order only found that no genuine issues of material fact existed, and did not address the second requirement that Lynn was entitled to a judgment as a matter of law. They argue that the circuit court did not view the facts in favor of the nonmovant (the Otts), and that Lynn did not comply with the mandatory requirements of the Uniform Rules of Circuit and County Court because she did not itemize the facts alleged to be undisputed in her motion for summary judgment.
STANDARD OF REVIEW
¶ 11. This Court reviews the record de novo to determine whether a motion for summary judgment was properly granted. Lowery v. Guaranty Bank and Trust Co., 592 So.2d 79, 81 (Miss.1991). A motion for summary judgment should be granted if it can be shown by the evidence that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). On a motion for summary judgment, a court does not try issues of fact; it can only determine whether there are issues to be tried. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209-10(¶ 6) (Miss.2001). All evidence must be viewed in the light most favorable to the non-movant, and the court should presume that all evidence in the non-movant's favor is true. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993).
LAW AND ANALYSIS
I. WHETHER SUMMARY JUDGMENT WAS PROPER IF FACTS WERE CONTESTED.
¶ 12. Mississippi Rule of Civil Procedure 56(c) states in pertinent part, "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a *939 judgment as a matter of law," summary judgment shall be entered.
¶ 13. The essential facts of this case are not disputed. The parties agree that Jody went to Lynn's home sometime after midnight after drinking for several hours at a bar. After he entered Lynn's home, Lisa awoke. Lisa and Jody argued and began physically fighting. Lisa retrieved a gun from the bedroom, there was a struggle, and Jody was shot. Lynn was not present in the room where the shooting occurred because she was in another room calling 911.
¶ 14. The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. "The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense . . . the existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact." Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss. 1985)).
A. Premises Liability
¶ 15. The Otts argue that a genuine issue of material fact surrounds the question of Jody's status when he was entangled in the altercation with his sister. According to Leffler v. Sharp, 891 So.2d 152, 156(¶ 10) (Miss.2005), the "determination of which status [licensee, invitee, trespasser] a particular plaintiff holds can be a jury question, but where facts are not in dispute, the classification becomes a question of law for the trial judge."
¶ 16. Mississippi uses a three-step approach to determine premises liability. Massey v. Tingle, 867 So.2d 235, 239(¶ 12) (Miss.2004). First, we must classify the status of the injured person as an invitee, licensee, or a trespasser. Id. Second, we determine the duty, if any, owed to the injured party, and then whether the duty was breached by the landowner or business operator. Id.
¶ 17. Jody argues that he was a business invitee because he went to Lynn's house that night to receive payment for work he had completed for Lynn. Lynn argues that Jody was a licensee because he entered her property merely for his own benefit or, in the alternative, she claims that Jody became a trespasser because he was told repeatedly to leave the house once he and Lisa began to argue.
¶ 18. An invitee is "a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage." Corley v. Evans, 835 So.2d 30, 37(¶ 21) (Miss.2003). A business invitee is "invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Clark v. Moore Mem'l United Methodist Church, 538 So.2d 760, 763 (Miss.1989). A licensee is one who "enters upon the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner," and a trespasser is one who "enters upon another's premises without license, invitation, or other right." Corley, 835 So.2d at 37(¶ 21). Our supreme court has further held that a trespasser enters another's property "merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement or express or implied assurance of safety from the owner or person in charge." Titus v. Williams, 844 So.2d 459, 467(¶ 31) (Miss.2003).
*940 ¶ 19. In order to create the status of an invitee, there must be a mutual advantage between the landowner and the invitee. Corley, 835 So.2d at 37(¶ 22). Jody testified that he went to Lynn's home in the middle of the night to retrieve his tools and receive payment for his work on the carport. Lynn asserts that she allowed Jody to enter the home merely to ascertain what was wrong because she could tell that Jody was upset. We find nothing in the record to indicate that Lynn received a mutual benefit from Jody. Jody's work on the carport was not associated with Southern Foundations; it was a separate contracting job from that of his prior work with Southern Foundations. It appears that Lynn was merely doing Jody a favor by allowing him to take over the carport job so that he would have some income until he could find additional work. As such, we cannot say that Jody was an invitee or a business invitee. Therefore, we must next evaluate whether Jody was a licensee or a trespasser. When Jody was initially invited into Lynn's home, he was a licensee. Yet once Lisa and Lynn told Jody to leave the premises, he could have been considered a trespasser. Lisa and Lynn both testified that they told Jody to leave; Jody disputes this.
¶ 20. Regardless of Jody's status, Lynn did not breach any duty owed to him. In Mississippi, the highest standard of care owed to anyone who enters another's land is to keep the premises reasonably safe and when not reasonably safe, to warn only when there is hidden danger or peril that is not plain and in open view. Titus, 844 So.2d at 467(¶ 33). Once the injured person observes and fully appreciates that peril, the duty to warn disappears. Id. Although licensees and trespassers are different classifications, "landowners owe licensees and trespassers the same duty, specifically, to refrain from willfully or wantonly injuring them." Massey v. Tingle, 867 So.2d at 239(¶ 14) (Miss.2004).
¶ 21. As noted above, we find that Jody's status is irrelevant because Lynn owed no duty to warn him of a situation which he created himself. Jody went to Lynn's home in the middle of the night after he had been drinking. When he entered the home, Lynn testified that Jody exclaimed "it would take the law to get him out," and she should go ahead and call the police. When Lisa awoke and entered the room, Jody began arguing with his sister and they subsequently exchanged physical blows. The testimony is uncontroverted that both Jody and Lisa struck one another. At some point during the altercation, Jody witnessed Lisa retreat into Lynn's bedroom and when she returned, Lisa was holding a pistol at her side. A struggle ensued, whereby the gun was discharged.
¶ 22. We find no evidence in the record to support an allegation that Lynn either failed to keep the premises reasonably safe, failed to warn Jody of a hidden danger or failed to refrain from willfully and wantonly injuring Jody. Thus, this argument is without merit.
B. Vicarious Liability
¶ 23. The Otts next maintain that because Lisa was an employee of Southern Foundations, Lynn should be held vicariously liable for Lisa's actions. Lynn counters that at the time of Jody's injuries, Lisa was not acting as an employee of Southern Foundations. Thus, even if Lisa could be characterized as an employee of Southern Foundations, her actions would have been outside the scope of her employment.
¶ 24. Under the doctrine of respondeat superior, an employer may be liable for the acts of his employee if said *941 acts are done in the course of employment and in furtherance of the employer's business. Children's Med. Group, P.A. v. Phillips, 940 So.2d 931, 935(¶ 13) (Miss. 2006) (citing Sandifer Oil Co. v. Dew, 220 Miss. 609, 630, 71 So.2d 752, 758 (1954)). However, if an employee deviates from that work or goes on a "frolic" of his own, then the employer-employee relationship is temporarily suspended. Id.
¶ 25. Southern Foundations was in the business of remodeling homes. Lisa occasionally helped with bookkeeping and visiting work sites to ensure the work was being performed. The altercation between Lisa and Jody occurred after midnight, well after any arguable normal working hours could be maintained. The argument escalated, in part, because Lisa was upset that her brother had been drinking and smoking marijuana on a job site. There is no evidence in the record to prove that Lisa was acting in the course of her arguable "employment" during the altercation with Jody. Thus, we decline to assign liability to Lynn for a dispute between a brother and sister which occurred well outside the scope of employment. Therefore, this argument is without merit.
C. Negligent Maintenance of a Loaded Gun on Business Premises
¶ 26. The Otts assert that Lynn should be held liable for the negligent maintenance of a loaded firearm, which was used to injure Jody. They claim that Lynn knew that Lisa had a "short fuse," and that Lynn failed to take steps to protect Jody. To prevail on a negligence claim in Mississippi, the plaintiff must allege and prove the four basic tort elements for negligence: (1) duty, (2) breach, (3) causation, and (4) injury. Green v. Dalewood Prop. Owners Assoc., Inc., 919 So.2d 1000, 1005(¶ 10) (Miss.2005).
¶ 27. The Otts claim that Lynn breached her duty to warn Jody about the loaded firearm. However, any duty to warn disappears once the peril is in plain view and the plaintiff fully appreciates that peril. Titus, 844 So.2d at 467(¶ 33). Lisa testified that she retrieved the gun from Lynn's bedroom because she feared for her life. She and Jody had been physically fighting for several minutes and he had ripped her clothing, struck her and threw her over furniture. Jody witnessed Lisa retreat into the room and return holding the pistol by her side. A struggle ensued and Jody was shot.
¶ 28. The evidence from the record does not support a negligence claim against Lynn. Lynn was not present in the room when Jody was shot. She was in another room calling the police, and did not see Lisa enter the bedroom to get the gun. If Lisa was known to have a "short fuse," then Jody, as her brother, surely knew of her temper as well. As such, he could appreciate the peril he created for himself when he began arguing and physically fighting with her. Again, we decline to assign liability to another when the plaintiff himself created the perilous situation. Id. Further, we decline to hold a homeowner liable for maintaining a loaded firearm in order to protect him or herself from harm. Accordingly, we find this argument to be without merit.
II. WHETHER THE LOWER COURT FAILED TO APPLY THE CORRECT STANDARD OF REVIEW FOR SUMMARY JUDGMENT.
¶ 29. The circuit court granted Lynn's motion for summary judgment stating that material issues of fact do not exist in this case. The Otts argue that some minimal analysis of the issues raised is necessary to support the order for summary judgment.
*942 ¶ 30. A motion for summary judgment can only be granted if the moving party meets its burden of proof by demonstrating that there is no genuine issue of material fact and that the party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The circuit court's order reads in pertinent part, "In this cause, the Court finds that material issues of fact do not exist in this cause and that the Defendant's, Donna Lynn, individually and doing business as Southern Foundations, Motions for summary judgment should be granted." The Otts claim that the court did not consider or find that Lynn was entitled to a judgment as a matter of law and that the case required more than a one-sentence conclusory finding. However, the Otts do not cite any authority to support their contention that the words "entitled to a judgment as a matter of law" must be contained in the court's order.
¶ 31. In its order denying summary judgment, the circuit court illustrated the appropriate standard for summary judgment under Rule 56 of the Mississippi Rules of Civil Procedure, that "where there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law." Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991). The court further articulated that the evidence would be viewed in the light most favorable to the non-moving party and the court would err on the side of denying the motion if a doubt exists as to whether there is a genuine issue of material fact. American Legion Ladnier Post Number 42 v. Ocean Springs, 562 So.2d 103, 106 (Miss.1990).
¶ 32. The last sentence in the order states only that the court found there were no genuine issues of material fact and did not include the additional language "and the party is entitled to a judgment as a matter of law." However, when reading the order as a whole, it is apparent that the court did fully consider the evidence in the light most favorable to the Otts, and that it appropriately considered whether genuine issues of material fact existed, as well as whether Lynn was entitled to a judgment as a matter of law. Therefore, we find the Otts' argument to be without merit.
III. WHETHER THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT WHERE THE APPELLEE'S MOTION FAILED TO COMPLY WITH THE MANDATORY REQUIREMENTS OF THE UNIFORM CIRCUIT AND COUNTY COURT RULES.
¶ 33. In their final argument, the Otts claim that Lynn failed to comply with the mandatory requirement of the Uniform Rules of Circuit and County Court Rule 4.03 which requires the movant for a summary judgment to itemize the facts alleged to be undisputed.
¶ 34. Rule 4.03 states in pertinent part that "Movants for summary judgment shall file with the clerk as a part of the motion an itemization of the facts relied upon and not genuinely disputed. . . ." The Otts provide no additional authority with which to prove that Lynn's omission of the itemization of undisputed facts should be fatal to her request for summary judgment.
¶ 35. While the summary judgment motion itself did not specifically itemize undisputed facts, we find from the record that the movant did attach relevant excerpts from the pleadings, discovery and depositions, which described undisputed facts. In addition, Lynn filed a memorandum brief to support her motion for summary judgment on the same day as the motion *943 for summary judgment was filed. In the brief, Lynn describes several facts which she claims are not in dispute, namely that Jody entered her home sometime after midnight, he became engaged in an altercation with Lisa, a fight ensured, Lisa took a pistol out of Lynn's bedroom, whereby Jody and Lisa fought over the gun, and Jody was subsequently shot. Thus, we find this argument to be without merit and affirm the lower court's grant of summary judgment.
¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY GRANTING SUMMARY JUDGMENT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619890/ | 13 So.3d 1201 (2009)
Valerie DURAPAU
v.
Diane F. KALLENBORN and State Farm Mutual Automobile Insurance Company.
No. 09-CA-79.
Court of Appeal of Louisiana, Fifth Circuit.
May 26, 2009.
Vincent J. Glorioso, Jr., Maria B. Glorioso, Vincent J. Glorioso, III, The Glorioso *1202 Law Firm, New Orleans, Louisiana, for Plaintiff/Appellant.
Burt K. Carnahan, Pamela K. Richard, Lobman, Carnahan, Batt, Angelle & Nader, New Orleans, Louisiana, for Defendants/Appellees.
Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
MARION F. EDWARDS, Judge.
Plaintiff/appellant, Valerie Durapau ("Ms. Durapau"), appeals an adverse decision of the trial court in an action for damages resulting from an automobile accident. The judgment on appeal is a judgment in which the trial court adopted a jury determination that defendant/appellee, Diane Kallenborn ("Ms. Kallenborn"), was negligent in the accident, but that negligence was not the legal cause of the accident. For reasons that follow, we affirm.
Ms. Durapau filed this action seeking damages as a result of a traffic accident that happened on January 23, 2007 at the intersection of Metairie Road and Magnolia Drive in Metairie, Louisiana. Ms. Durapau was riding a small motor scooter, traveling East on Metairie Road toward New Orleans. Ms. Kallenborn was driving a sports utility vehicle ("SUV") on Magnolia Drive. The two vehicles collided at the intersection, which is controlled by a traffic light. Ms. Durapau suffered multiple injuries as a result of the accident. Ms. Durapau filed a negligence action, naming Ms. Kallenborn and her insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), as defendants in the lawsuit.
The matter went before a jury for trial, after which the jury returned a verdict form containing the following questions and answers:
1. Do you find Diane F. Kallenborn negligent in regards to the motor vehicle accident of January 23, 2007?
Yes 10 No 2
If the answer to this question is "Yes", please proceed to question No. 2. If the answer to this question is "No", please stop here. Do not answer any further questions. Sign this form and notify the bailiff.
2. Was the negligence of Diane F. Kallenborn a legal cause of the motor vehicle accident of January 23, 2007?
Yes 3 No 9
Subsequently, the trial court adopted the jury verdict and rendered judgment in accordance with the above determinations. Ms. Durapau filed a motion for judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial. The motion was denied by the trial court, and this appeal followed.
FACTS
At the trial on the merits, the parties stipulated that Ms. Durapau's medical expenses totaled $29,918, of which $24,277 has been waived by health care providers. Five thousand six hundred forty-two dollars ($5,642) is still owed to health care providers. The parties also stipulated that the injuries consist of a left tibia fibula fracture, which required surgery and the insertion of a rod. Other injuries included a concussion, facial lacerations, and multiple contusions. Additional stipulations established State Farm as Ms. Kallenborn's insurer and introduced medical records, wage and earnings documents, and photos into the record.
Ms. Durapau testified that she is a student at the University of New Orleans and works at the House of Blues as a waitress. On the day of the accident, she *1203 left her mother's home on Bath Street at about 3 p.m. She traveled down Labarre Road and turned left onto Metairie Road on her way to her home on Papworth Street. She was driving a scooter and traveling about 30 miles per hour. She was wearing a helmet. As she approached Haynes Middle School, about 150 feet away from the intersection of Metairie Road and Magnolia, Ms. Durapau saw that the light was green. About ten feet before she reached the intersection, the light turned yellow. Ms. Durapau saw an SUV stopped on Magnolia Street, "inching up forward." Ms. Durapau testified that she assumed the SUV intended to make a right turn on the red light and was checking to see if there were any vehicles coming. However, Ms. Durapau recalled seeing the SUV "shoot out in front" of her just before the impact. Ms. Durapau assumed that Ms. Kallenborn saw the scooter coming, so she did not blow her horn or attempt to brake before she entered the intersection. Ms. Durapau did not recall seeing any witnesses at the scene.
Ms. Kallenborn testified that she was driving a Suburban at the time of the accident. She was on her way home from driving carpool from Jesuit School in New Orleans where her son is a student. She dropped the last child off at his home on Livingston Street and turned onto Magnolia on her way home with her son. She stopped at the red light at the intersection of Magnolia and Metairie Road. Ms. Kallenborn testified that traffic was heavy because it's the time of day that schools are letting out. She was stopped at the red light for about 30 seconds. When the light turned green, she looked left and right and then proceeded into the intersection. When she got to the middle of Metairie Road, she saw a scooter traveling toward her on Metairie Road. It did not slow down or veer off. The scooter rammed into the rear door on the driver's side of the SUV.
Ms. Kallenborn testified that she could not open her door because of damage sustained in the collision. She climbed over the back seat to check on her son then got out to check on the driver of the scooter. There were several people around who called 9-1-1. Ms. Kallenborn made calls to a neighbor and her husband. While she was calling, a woman, later identified as Beverly Scala ("Ms. Scala"), was helping Ms. Durapau. Ms. Durapau was screaming and in obvious pain. Ms. Scala tried to put something under Ms. Durapau's head. Ms. Durapau asked what happened and Ms. Scala told her, "Honey, you ran a red light." Ms. Kallenborn explained that, although Ms. Scala lives nearby, the two women did not know each other before the accident.
Ms. Kallenborn testified that two police officers came to the scene shortly after the accident. One of the officers told her to move her car off to the side and she complied. Ms. Scala told one of the officers she witnessed the accident and gave details. Ms. Kallenborn also gave the officer her account of what happened.
Ms. Kallenborn stated that she has lived in the area for about eight years and was familiar with the intersection and the sequence of lights. She stated that, when the light turns red for Metairie Road traffic, the light turns green for Magnolia first than for Codifer, assuming there are cars on Magnolia waiting for the light.
Ms. Kallenborn stated with certainty that she waited until the light on Magnolia was green before entering the intersection. She denied anticipating the light and going forward while the light was still red. She saw the motorcycle driving on Metairie Road about to hit her car, but she could not be precise about how many seconds that was before the impact happened. *1204 However, Ms. Kallenborn testified that she was in the center of Metairie Road when she saw Ms. Durapau coming, and there was no way to avoid the accident.
Ms. Scala testified that she lives about two blocks away from the intersection at which the accident occurred. She was stopped at a red light on Codifer when she witnessed the accident. She was in the left lane and could see the light facing Metairie Road. It was green at the time. The light went from green to yellow and finally to red. A few seconds later, Ms. Scala saw a motor scooter approaching the intersection, traveling eastbound on Metairie Road. The scooter ran into the side of a truck that had entered the intersection from Magnolia Street. Ms. Scala estimated the speed of the motor scooter at about 35 miles per hour. Ms. Scala pulled over, parked her car, and went over to see if she could help the motor scooter rider. The rider had a large gash in her chin and her leg appeared to be broken. The rider asked Ms. Scala what happened, to which Ms. Scala replied, "Baby, you ran a red light."
Ms. Scala also testified that Officer Lamar Hooks, Jr. ("Officer Hooks"), with whom Ms. Scala is acquainted, was driving by and stopped to direct traffic until the investigating officer arrived on the scene. Shortly afterward, Officer Dominick Imbornone ("Officer Imbornone") arrived and conducted the accident investigation. Ms. Scala testified that she also knows Officer Imbornone's wife.
Officer Imbornone testified at trial regarding his investigation of the accident. He stated that, when he arrived on the scene, there was a motor scooter lying on top of the rider in the intersection of Metairie Road and Magnolia Street. The second vehicle involved was an SUV parked on the corner of Codifer Street and Metairie Road. Officer Hooks was already there, directing traffic and rendering aid to Ms. Durapau. Officer Hooks had called emergency medical personnel, who had not yet arrived.
Ms. Durapau was in extreme pain, so Officer Imbornone was unable to get a statement from her. However, he did obtain statements from Ms. Kallenborn and Ms. Scala. Ms. Scala told Officer Imbornone that Ms. Kallenborn was stopped at the red light at Magnolia. When the signal turned green, she proceeded onto Metairie Road and was struck by a motor scooter traveling eastbound on Metairie Road that ran a red light.
Officer Imbornone confirmed Ms. Scala's testimony that his wife had formerly worked for Ms. Scala but had quit about four years before the accident. He stated that nothing in that relationship affected this accident report.
Officer Hooks testified that he was driving eastbound on Metairie Road at the time of the accident. There were about ten cars in front of his as he stopped for the red light at Magnolia. When the light turned green and traffic did not move, he became aware of a problem at the intersection. Officer Hooks turned on the lights on his police car and drove up a turning lane to discover the cause of the obstruction. He saw Ms. Durapau on the ground and her motor scooter was on top of her. The SUV was parked off to the side.
Ms. Scala was there trying to help Ms. Durapau. Officer Hooks' first concern was to aid Ms. Durapau, who was in great pain. He called in to report the accident and to get medical help for Ms. Durapau.
Officer Hooks testified that he has known Ms. Scala for about twenty years because he is friends with Ms. Scala's son. Ms. Scala told Officer Hooks that she saw the suburban cross the intersection and *1205 the motor scooter run the red light and hit it.
Officer Hooks also stated that he recalled seeing Ms. Scala in the Shell Service Station parking lot at the intersection of Metairie Road and Codifer as he was driving up Metairie Road to the intersection.
Stephen Strength ("Mr. Strength"), a civil engineer employed by the Louisiana Department of Transportation and Development as the District Traffic Operations Engineer, testified as an expert witness.[1] Mr. Strength explained that he is responsible for conducting studies related to improving safety and efficiency of the State highway system within the New Orleans Metropolitan Area. His department oversees the maintenance and operation of traffic signals, signs, striping, setting of speed limits, and other related responsibilities.
Mr. Strength testified that the intersection at which the accident happened is a merge of Metairie Road, Codifer Street, and Magnolia Street. He explained that on the Codifer and Magnolia approaches to Metairie Road there is a traffic light. There is also a left-turn arrow that comes on simultaneously with the green light on each approach street. To aid in his explanation, Mr. Strength produced a Traffic Signal Inventory form for that intersection dated October 19, 2006, which shows the pattern and sequencing of the traffic lights. He verified that the pattern and sequencing has not been changed since that day and would have been the same on the day of the accident.
Mr. Strength testified that the intersection in question has detectors imbedded in the pavement of all three streets to sense the traffic flow. The detectors adjust the timing of the traffic lights within a pre-set maximum and minimum time as necessary to keep traffic flowing smoothly.
The normal sequence is a green light for both approaches of Metairie Road simultaneously, followed by a green phase for the Codifer approach, followed by one for Magnolia. However, it is possible for the detectors to skip an approach if there is no vehicle there. Once either or both phases to a red light for the approach streets is complete, the light on Metairie Road would turn green and remain so until a vehicle approached on Codifer or Magnolia. Mr. Strength further explained that the span of time for a green light on Metairie Road is from ten to forty-five seconds depending on the amount of traffic. However, if there were no traffic on the two side streets, the green light on Metairie Road would stay lit for an unlimited time.
For the green light at Magnolia, the minimum period is three seconds and the maximum is ten seconds. If a vehicle moves onto Metairie Road from Magnolia when the light turns green, and no other vehicle is detected, the light will go to yellow and phase to red. However, the system allows for "passage time" to ensure a vehicle starting out on a green light crosses the intersection safely. Thus, the light will stay green on the side streets longer if another vehicle is detected in the intersection.
Mr. Strength also explained that there is an additional red clearance time during which the light will be red for all three streets. The minimum for the red light hold is 2.4 seconds and the maximum is 3.1 seconds depending on the amount and location of the traffic.
*1206 Mr. Strength testified that there were no malfunctions in the traffic light regulating that intersection around the date of the accident according to maintenance records. He further stated that the sensors in the street would be able to detect the small scooter that Ms. Durapau was riding.
Raymond Burkart ("Mr. Burkart"), an expert in traffic accident reconstruction, testified at trial. He stated that he reviewed the Traffic Signal Inventory, and the depositions of the parties and a witness and the investigating officer. Further, Mr. Burkart went out to the accident scene to conduct an investigation. He took certain measurements and photographs to aid in his reconstruction of the accident.
Mr. Burkart testified that the timing sequence he personally observed in his investigation supported Mr. Strength's testimony. Mr. Burkart's testified there is some question about where Ms. Scala was located when the accident happened and also discrepancies in the time line. In Ms. Scala's deposition, she first stated she watched the SUV for about twenty seconds; later, she changed the estimate to about five seconds. Given the detectors and the sequence of the lights, that is a problem.
Mr. Burkart testified that the light facing Metairie Road is visible from Magnolia. His assumption was that Ms. Kallenborn anticipated the green light and entered the intersection early, before the light actually turned green.
LAW AND ANALYSIS
As previously stated, the jury ultimately found that Ms. Kallenborn was negligent, but that negligence was not a legal cause of the accident. The nature of Ms. Kallenborn's negligence is not evident from the findings of the jury. The trial court adopted the jury's verdict in a final judgment. A motion for a JNOV was filed by Ms. Durapau and denied by the trial court. In that same judgment, the trial court also denied an alternative motion for new trial and made the verdict of the jury the judgment of the court.
The judgment on review is a judgment denying Ms. Durapau's motion for JNOV. A JNOV is permissible pursuant to La. C.C.P. art. 1811. The strict criteria for granting a JNOV is predicated on the rule that when there is a jury, the jury is the trier of fact.[2] Issues regarding finding of facts and determinations on credibility are within the purview of the trier of fact. A reviewing court does not assess the credibility of witnesses or reweigh the evidence. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness.[3]
Considering the above principles, the Louisiana Supreme Court has set forth the criteria to be used in determining when a JNOV is proper as follows:
[A] JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the *1207 motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions.... In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party....[4]
In reviewing a JNOV, an appellate court must first determine whether the district judge erred in granting the JNOV by using the above-mentioned criteria in the same way as the district judge in deciding whether to grant the motion.[5] Thus, the appellate court must determine whether the "facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict."[6]
In brief to this Court, Ms. Durapau asserts the decision by the jury, and the final judgment rendered by the trial court adopting that decision, is based on manifestly erroneous factual and legal findings. In support of that assertion, Ms. Durapau argues that causation was not at issue. Consequently, the only issue to be resolved at trial was the negligence of the parties. Specifically, whether one or both drivers ran red lights and the percentage of fault, if any, that should be attributed to Ms. Durapau. In conclusion, Ms. Durapau argues the trial court's decision to deny the motion for a JNOV was in error.
The main thrust of Ms. Durapau's argument is that, once the jury found negligence in Ms. Kallenborn's actions, causation is a given. We note that, although Ms. Durapau emphasizes that there was no issue of causation as between the accident and the injuries, that fact does not preclude the issue of legal cause for the accident.
Ms. Kallenborn and State Farm argue that negligence and legal cause are separate elements to be considered by the jury, and that the finding that Ms. Kallenborn's negligence was not a legal cause of the accident is supported by competent evidence presented at trial.
Ms. Durapau's cause of action was based on a theory of negligence which requires a duty/risk analysis. A duty/risk analysis involves five elements, which must be proved by the plaintiff: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant's substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).[7]
Given the above-cited jurisprudence, we agree with Ms. Kallenborn's assessment that negligence and legal cause are two separate elements which must both be proven in order to be successful in a negligence cause of action. Conversely, we reject Ms. Durapau's assertion that legal cause is a "given" once negligence is proven.
*1208 Ms. Durapau argues that once negligence of a defendant is found in a twovehicle accident intersectional collision, causation is a given. She further argues that a finding of negligence with a finding of no causation is unreasonable. In support of that theory, Ms. Durapau cites Eubanks v. Dr. John Solomon Chiropractic Clinic, et al.[8]Eubanks is a medical malpractice action in which Mr. Eubanks suffered acute pain immediately after neck manipulation by a chiropractor and was diagnosed with a ruptured cervical disc. The jury found no liability and dismissed plaintiffs action. The trial court granted a JNOV upon a finding by the trial court that "the jury disregarded the charges on causation, and that the facts and inferences point so strongly and overwhelmingly in favor of plaintiff that reasonable men could not have arrived at a contrary verdict."[9]
Eubanks is clearly distinguishable from the matter before us. The issue in Eubanks related to a causal connection between the treatment of the plaintiff and the injury, a matter which has been established in the matter before us by stipulation. It is also an appeal from the grant of a JNOV. The trial court in Eubanks used the proper standard for granting a JNOV and, given the facts presented, this Court affirmed the trial court.
Another case relied upon by Ms. Durapau is also distinguishable. She cites Jackson v. A.L. & W. Moore Trucking[10] for the proposition that the only permissible view of the evidence is that Ms. Kallenborn's negligence was a legal cause of the accident. In Jackson, the jury found that both drivers in an intersectional collision were negligent and assigned fault to each. However, the jury also found that neither was a legal cause of the accident. In that case, the trial judge correctly found that the jury was confused and the verdict was contrary to law and facts. If both drivers were determined to be negligent, and assessed degrees of fault, then there must be a finding of legal cause by the driver(s).
In the instant case, the jury found that Ms. Kallenborn was negligent, although the specific actions leading to that determination are not evident. There was no determination of Ms. Durapau's negligence. The jury found that, although Ms. Kallenborn's conduct was substandard, it was not the legal cause of the accident. Under the duty/risk analysis the jury found that, although Ms. Kallenborn had a duty to Ms. Durapau and that Ms. Kallenborn breached that duty, that breach was not within the scope of liability or scope of protection owned to Ms. Durapau.
Ms. Durapau argues in brief that Ms. Kallenborn "simply presumed her light would turn green" and proceeded into the intersection too early. Ms. Durapau argues that the opinion of her expert, that but for Ms. Kallenborn's "jumping" the light the collision would not have occurred, was not contradicted. Although that may be Ms. Durapau's determination of the facts, we are reminded that a JNOV should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover.[11]
We do not find the evidence presented at trial reaches that high standard. The evidence opposed to the motion is of such *1209 quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions.[12] The jury could have found that Ms. Durapau ran a red light and was the legal cause of the accident and that Ms. Kallenborn's negligent actions was minor and not a legal cause of the accident.
Given the jurisprudence and the facts of this case, we do not find the trial court erred in denying the JNOV and affirming the verdict of the jury. Accordingly, we affirm the judgment of the trial court and assign all costs of this appeal to Ms. Durapau.
AFFIRMED.
NOTES
[1] Mr. Strength was unable to attend the trial so his testimony was offered by video deposition.
[2] Smith v. State, Dep't of Transp. & Dev., 04-1317, 04-1594 (La.3/11/05), 899 So.2d 516.
[3] Castillo v. Clerk of Court for 29th Judicial District, 06-662 (La.App. 5 Cir. 1/30/07), 951 So.2d 1258, writ denied, 07-0359 (La.3/30/07), 953 So.2d 69.
[4] Joseph v. Broussard Rice Mill, Inc., 00-0628 (La. 10/30/00), 772 So.2d 94, 99 (citations omitted).
[5] VaSalle v. Wal-Mart Stores, Inc., 01-0462 (La.11/28/01), 801 So.2d 331, 339.
[6] Id. (quoting Joseph, 772 So.2d at 99).
[7] Smith v. AFS, Inc., 08-332 (La.App. 5 Cir. 10/28/08), 998 So.2d 168, 169-170.
[8] 99-425 (La.App. 5 Cir. 2/16/00), 756 So.2d 517.
[9] Id. at 519.
[10] 609 So.2d 1064 (La.App. 2 Cir.1992).
[11] Joseph v. Broussard Rice Mill, Inc., supra.
[12] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619901/ | 955 So.2d 988 (2006)
Richard M. SCRUSHY
v.
Wade TUCKER.
1050564.
Supreme Court of Alabama.
April 12, 2006.
Rehearing Directed to Opinion Issued April 12, 2006, Denied August 25, 2006.
Opinion on the Merits August 25, 2006.
Rehearing Directed to Opinion Issued August 25, 2006, Denied October 27, 2006.
*991 C. Neal Pope of Pope, McGlamry, Kilpatrick, Morrison & Norwood, LLP, Columbus, Georgia; and David G. Russell and J. Marbury Rainer of Parker, Hudson, Rainer & Dobbs, LLP, Atlanta, Georgia, for appellant.
John W. Haley, Ralph D. Cook, and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham; John Q. Somerville of Galloway & Somerville, Birmingham; and Frank P. DiPrima, Convent Station, New Jersey, for appellee.
LYONS, Justice.
Richard M. Scrushy, the defendant in this case, appealed from a partial summary judgment entered in favor of the plaintiff, Wade Tucker. The trial court made the judgment final pursuant to Rule 54(b), Ala. R. Civ. P. As a preliminary matter, Scrushy filed in this Court an emergency motion to stay execution of the judgment against him. This Court ordered execution of the judgment stayed pending further orders of the Court and, in addition, ordered the parties to show cause whether the partial summary judgment is appropriate for certification as a final appealable order pursuant to Rule 54(b). An adverse determination of that issue would eliminate the basis for enforcement of the judgment. After considering the parties' responses to the Court's show-cause order, we conclude that the trial court's Rule 54(b) certification was appropriate, and, accordingly, we vacate the stay of the execution of the judgment and allow the appeal in this case to proceed. We further conclude that the emergency motion to stay execution of the judgment is due to be denied as premature.
I. Factual Background and Procedural History
Wade Tucker, a shareholder of HealthSouth Corporation, filed a shareholder's derivative lawsuit on behalf of HealthSouth against Scrushy, the former chief executive officer for HealthSouth, and numerous other defendants. This case is one of three civil actions filed as a result of alleged fraudulent accounting practices at HealthSouth. The other two civil cases are pending in the United States District Court for the Northern District of Alabama and in the Delaware Chancery Court. In addition, criminal charges were brought against Scrushy in the same federal court. All of the civil cases were stayed during the pendency of the criminal proceedings against Scrushy. After a lengthy trial, Scrushy was acquitted of the criminal charges against him.
Tucker's complaint alleges that Scrushy and others perpetrated an accounting fraud against HealthSouth, resulting in massive financial losses by HealthSouth and ultimately its shareholders. Tucker's complaint alleges claims of insider open-market trading, fraud, breach of fiduciary duty by corporate directors, professional negligence by auditors, aiding and abetting or civil conspiracy by an investment banking firm, and breach of contract. Tucker's complaint also alleges that Scrushy was unjustly enriched when he accepted bonuses as a result of overvalued financial statements that misstated HealthSouth's net income, which, Tucker alleges, was in violation of a contract between HealthSouth *992 and Scrushy. As to the claim of unjust enrichment, Tucker's complaint alleges, in pertinent part, as follows:
"34. Beginning in or about January 1997, and continuing into March 2003, defendants Scrushy [and others] knowingly and willfully conspired and agreed with each other, to commit the wrongdoing alleged herein, specifically, to misrepresent and falsely inflate earnings and HealthSouth's true financial condition. Scrushy [and other defendants] engaged in this fraud, misrepresentation and manipulation of income and earnings of HealthSouth to enrich themselves by artificially inflating HealthSouth's publicly reported earnings and earnings per share an[d] by fraudulently enhancing its reported financial condition.
"35. Since 1999, Scrushy [and other defendants] overstated HealthSouth's earnings by at least $1.4 Billion. This massive overstatement occurred because Scrushy insisted that HealthSouth meet or exceed earnings expectations. When HealthSouth's earnings fell short of estimates, Scrushy directed HealthSouth's accounting personnel . . . to `fix it' by artificially inflating the company's earnings to match Wall Street expectations.
"36. Scrushy [and other defendants] also created false journal entries to HealthSouth's income statement and balance sheet accounts. . . .
"37. It was part of the wrongdoing and conspiracy that Scrushy [and other defendants] engaged in an unlawful scheme to inflate artificially HealthSouth's publicly reported earnings and earnings per share and to falsify reports of HealthSouth's financial condition so that they could reward themselves with bonuses, stock options, and other corporate perks. Scrushy personally benefitted from the scheme to artificially inflate earnings, having sold at least 7,782,130 shares of stock since 1999 at prices grossly inflated by the materially misstated financial statements. Scrushy [and other defendants] `earned' tens of millions of dollars in bonuses, stock options, and excessive salary and perks based on the inflated earnings.
". . . .
"118. During each year from 1992 through his departure in March 2003, Scrushy received tens of millions of dollars in compensation from HealthSouth, including, but not limited to, salary, stock options, benefits, bonuses, incentive compensation, and other income from the corporation in the form of loans, benefits, and/or the use of equipment and facilities of HealthSouth.
"119. The amounts paid by HealthSouth to Scrushy were grossly excessive, particularly when one considers the value of stock and dividends.
"120. What is more, incentive compensation to Scrushy [and other defendants] in executive management, is based on HealthSouth's reported financial results. As these results are and were false, Scrushy [and the others] . . . benefitted improperly and were unjustly enriched to the extent they received incentive compensation based on exaggerated revenues and profits.
". . . .
"COUNT VII
"Unjust Enrichment
"188. Plaintiff realleges and incorporates by reference the allegations in the preceding paragraphs 1 through 187 as though fully set out herein.
"189. As a result of the transactions set out herein, all Individual Defendants [and other defendants] held money which, in equity and good conscience and under law, belongs to HealthSouth. Defendants *993 have unjustly enriched themselves by breaches of the duty not to engage in self-dealing and interested transactions as pled herein. All such monies in the hands of defendants are due to be repaid to and for the benefit of HealthSouth.
"190. Wherefore, Plaintiff, for and on behalf of HealthSouth, seeks money damages from the Defendants . . . in an amount to be determined by the trier of fact to compensate HealthSouth for its damage [], plus interest, attorneys' fees, costs, and all such other relief at law and equity to which the corporation may be entitled."
(Emphasis added.)
After Scrushy was acquitted of the criminal charges, Tucker moved for a partial summary judgment in this case, seeking only restitution from Scrushy of bonuses he received from 1996 to 2002. The trial court's judgment summarizes the criminal activities affecting HealthSouth for the years 1996-2002 as follows:
"HealthSouth, as a publicly traded company, is legally required to file accurate, audited and reliable financial information regarding its ongoing business operations. Some of this information is required to be filed on a quarterly basis and other information on an annual basis. Since March 2003 fifteen (15) senior HealthSouth executives have pled guilty to sundry and various criminal acts, including criminal fraud, specifically regarding the accuracy, reliability, falsification and fabrication of the financial information and documentation that HealthSouth was legally required to file during the years 1996 through 2002 inclusive. Included in the fifteen pleading executives are the five (5) chief financial officers who held that position at HealthSouth prior to March 18, 2003. As of this date, the fifteen pleading executives have been sentenced regarding their criminal activities and Defendant Scrushy's trial resulted in an acquittal. It is with this background that the instant matter comes before the Court."
Scrushy served as the Chief Executive Officer ("CEO") and as the Chairman of the Board of Directors of HealthSouth from 1984 until March 2003, except that he was not the CEO from August 27, 2002, to January 6, 2003. He was fired as HealthSouth's CEO on March 19, 2003, the day after the fraudulent activities were revealed, and he also resigned as Chairman of the Board of Directors. Scrushy signed the annual reports for HealthSouth on Forms 10K submitted to the Securities and Exchange Commission for the years 1996 through 2001, filed annual proxies on Forms 14A for the years 1996 through 2002, and ran for reelection as a director on these proxies. In each annual proxy on Form 14A from 1996 through 2002, HealthSouth disclosed the following criteria for the incentive bonuses it paid its executives:
"Incentive Compensation: In addition to base salary, the [Compensation] Committee recommends to the Board of Directors cash incentive compensation for HealthSouth's executives, based on each executive's success in meeting qualitative and quantitative performance goals on an annual basis. The total incentive bonus pool available for the company's executives and management personnel is capped at the lesser of (a) the amount by which the company's annual net income exceeds the budgeted annual net income established by the Board of Directors and (b) 10% of the company's annual net income. No bonuses are payable unless annual net income exceeds budgeted net income. Individual incentive bonuses are determined on a basis that takes into account each executive's *994 success in achieving standards of performance, which may or may not be quantitative, established by the Board of Directors and an executive's superiors. Bonus determinations are made on a case-by-case basis, taking into account appropriate quantitative and qualitative factors, and there is no fixed relationship between any particular performance factor and the amount of a given executive's bonus. Historically, incentive compensation has been a major component of HEALTHSOUTH's executive compensation, and the Committee believes that placing executives at risk for such a component has been effective in motivating such executives to achieve such goals."
(Emphasis added.)
HealthSouth executives were eligible for two kinds of incentive bonusesannual bonuses and monthly target bonusesduring 1996 through 2002. However, according to the incentive compensation disclosure on the Form 14A proxies, no bonuses were to be paid in any year to any executive, including Scrushy, unless they were paid from the bonus pool that was capped at the lower of 10% of HealthSouth's net income or the extent by which the actual net income exceeded the budgeted net income.
HealthSouth paid both annual and target bonuses to Scrushy for the years 1996, 1997, 2001, and 2002, and only target bonuses to him for the years 1998-2000. The amounts of those bonuses are shown as follows:
"Year Annual Bonus Target Bonus Total Bonus
"2002 $10,000,000 $ 1,200,000 $11,200,000
"2001 $56,500,000 $ 2,400,000 $ 8,900,000
"2000 None $ 2,154,849 $ 2,154,849
"1999 None $ 134,031 $ 134,031
"1998 None $ 1,577,829 $ 1,577,829
"1997 $10,000,000 $ 2,400,000 $12,400,000
"1996 $58,000,000 $ 2,400,000 $10,400,000
___________ ___________ ___________
"Total $34,500,000 $12,266,709 $46,766,709
After HealthSouth's financial problems became public, audits were conducted. Those audits revealed that for the year 1996 HealthSouth's actual net income was far less than had been originally reported and that for the years 1997-2002 HealthSouth had actually lost millions of dollars annually. The reported and actual net income for those years is shown as follows:
"Year Reported Net Income Actual Net Income
"2002 $135,704,000 $(466,824,000)
"2001 $202,387,000 $(191,225,000)
"2000 $278,465,000 $(364,243,000)
"1999 $ 76,517,000 $(326,443,000)
"1998 $ 46,558,000 $(556,482,000)
"1997 $330,608,000 $( 65,432,000)
"1996 $189,864,000 $ 88,360,000
Based upon the actual annual net income for 1996 and the annual losses for the remaining years, Tucker argued in his summary-judgment motion that there was no bonus pool from which executive bonuses could have been paid and, therefore, that Scrushy should refund the bonuses that were wrongfully paid to him. The trial court noted in its judgment that "Scrushy . . . [did] not dispute that the originally filed financial information that HealthSouth filed as required by law was inaccurate, unreliable, false and fabricated. To the contrary, Defendant Scrushy's position is simply that he played no part in and is not responsible for any of the criminal activities that resulted in the falsification and fabrication of said financial statements."
With regard to the bonuses paid to Scrushy in 1996, the trial court held that because HealthSouth earned positive net income in 1996 issues of material fact precluded a summary judgment as to the 1996 bonuses. With regard to the bonuses paid to Scrushy in 1997-2002, however, the trial court concluded as follows:
"As to all bonuses paid to Defendant Scrushy for the years 1997 through 2002 inclusive, HealthSouth incurred actual losses and no bonus pool existed out of which the bonuses for these years could *995 properly have been paid to Scrushy. Scrushy was unjustly enriched by these payments to the detriment of HealthSouth and to allow Scrushy to retain the benefit of these payments would be unconscionable. These payments must be returned and Plaintiff Tucker is entitled to summary judgment for the bonuses paid to Scrushy for the years 1997 through 2002 inclusive."
The trial court entered a total judgment against Scrushy in the amount of $47,828,106, representing the bonuses paid for the years 1997-2002, plus prejudgment interest. The trial court further held that the judgment did not resolve other claims against Scrushy that remained pending, but it certified pursuant to Rule 54(b) that there was no just reason for delay and directed the entry of a final judgment concerning the bonuses for 1997-2002. Scrushy appealed and asked this Court to stay execution of the judgment pending appeal.
We do not address herein the merits of Scrushy's appeal. We decide at this point only the questions whether the trial court properly concluded that this judgment was appropriate for Rule 54(b) certification i.e., that the action involved more than one claim, that there was a final decision as to one of those claims, and that there was no just reason for delayand, if the Rule 54(b) certification was proper, whether to stay execution of the judgment.
II. Standard of Review
Tucker argues that we should determine whether the trial court exceeded its discretion in this case, while Scrushy argues that we should apply a de novo standard of review. One of the difficulties in deciding upon the appropriate standard of review applicable to an order entered pursuant to Rule 54(b) is that an appellate court is not required to answer a single inquiry but, instead, must answer multiple questions. We have not found an Alabama case that resolves the standard-of-review issue here presented. We have, therefore, turned to federal law, upon which our Rules of Civil Procedure were patterned.[1]
In Samaad v. City of Dallas, 940 F.2d 925, 930 (5th Cir.1991), the United States Court of Appeals for the Fifth Circuit stated:
"We note initially that the proper method for reviewing a rule 54(b) judgment is not well established. The language of the rule lends itself to two distinct challenges to a rule 54(b) judgment predicated upon the existence of multiple claims. First, an appellee seeking dismissal of an appeal could argue that the complaint does not present `more than one claim for relief.' This is a legal question that could be raised sua sponte by a court of appeals concerned that it might not have jurisdiction. The court of appeals would review de novo the district court's finding of separate claims.
"Second, an appellee could contend that, assuming the complaint presents multiple claims, the district court nonetheless abused its discretion in entering judgment. In such a situation, the court of appeals would consider whether the district court abused its discretion in determining whether `there [was] no just reason for delay.' If the appellee did not challenge the district court's exercise of discretion (as opposed to its finding of multiple claims), the court of appeals could not consider the issue sua *996 sponte, for it would not go to the appellate court's jurisdiction."
(Footnote omitted.) See also Stearns v. Consolidated Management, Inc., 747 F.2d 1105, 1108 (7th Cir.1984), wherein the United States Court of Appeals for the Seventh Circuit stated:
"There are three prerequisites to a Rule 54(b) certification. First, the action must involve separate claims. Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976). Second, there must be a final decision as to at least one of these claims. Third, the district court must expressly determine that there is `no just reason for delay.' The existence of the first two criteria is open to our de novo review, but the determination of `just reason for delay' is addressed to the sound discretion of the district court. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 7-8, 100 S.Ct. 1460, 1464-1465, 64 L.Ed.2d 1 (1980); Sears Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956); Local P-171, Amalgamated Meat Cutters and Butcher Workmen of North America v. Thompson Farms Co., 642 F.2d 1065, 1069 (7th Cir.1981)."
We agree with the reasoning expressed by the Fifth Circuit and the Seventh Circuit and will apply different standards of review to the issues presented here. Whether the action involves separate claims and whether there is a final decision as to at least one of the claims are questions of law to which we will apply a de novo standard of review. Whether there was "no just reason for delay" is an inquiry committed to the sound discretion of the trial court, and, as to that issue, we must determine whether the trial court exceeded its discretion.
III. Analysis
Rule 54(b) states, in pertinent part:
"When more than one claim for relief is presented in an action, . . . or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. . . . "
Clearly, Tucker's complaint involves multiple claims and multiple parties. "[F]or a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party." Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999).
We first address the question whether Tucker's unjust-enrichment claim was a separate and distinct claim that was fully adjudicated by the partial summary judgment. In Precision American Corp. v. Leasing Service Corp., 505 So.2d 380, 381 (Ala.1987), this Court recognized the difficulty of the question before us.
"The question before this Court is whether the partial summary judgment LSC received completely disposed of a claim so as to make that judgment final. Rule 54(b) does not authorize the entry of final judgment on part of a single claim. Tolson v. United States, 732 F.2d 998, 999 (D.C.Cir.1984). Neither federal nor state courts have been able to settle on a single test to determine when claims are separate or exactly what constitutes a claim. See, Tolson, 732 F.2d at 1001; Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). However, authorities have stated that `when plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) [of rule 54] does not apply.' 10 *997 C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure: Civil 2d, § 2657, at 69-71 (1983); Landry v. G.B.A., 762 F.2d 462, 464 (5th Cir. 1985)."
Federal authorities have also recognized that the "separate claim" question is not easily resolved. For example, the Fifth Circuit stated in Samaad:
"Even if we are able to differentiate nicely between the legal and discretionary aspects of rule 54(b) judgments, a great deal of uncertainty nonetheless remains, for we must consider the unsettled question of what exactly is a `claim for relief.' The most that can be said confidently about this question is that various courts focus upon different things but are reluctant to articulate hard-and-fast tests.
"Some courts concentrate on the facts underlying the putatively separate claims. For instance, in Jack Walters & Sons [v. Morton Bldg.], 737 F.2d [698] at 702 [(7th Cir.1984)], the court sought to define `claim for relief' in light of what it deemed to be rule 54(b)'s purpose: `to spare the court of appeals from having to keep relearning the facts of a case on successive appeals.' Accordingly, it held that `if the facts underlying different claims are different, the claims are separate for Rule 54(b) purposes.' Id.
"Similarly, in Purdy Mobile Homes [v. Champion Home Builders Co.], 594 F.2d [1313] at 1316 [(9th Cir.1979)], the court rejected an argument that there was only one claim because some facts were common to all the theories of recovery. The fact that one claim required proof of facts different from those required to prove another claim rendered it "separate.' Id. See also Gas-A-Car[, Inc. v. American Petrofina, Inc.], 484 F.2d [1102] at 1105 [(10th Cir.1973)]; 6 [James W.] Moore et al., [Moore's Federal Practice], ¶ 54.33[2] at 54-194 [(2d ed.1991)].
"Other courts have rejected this fact-bound test and have focused upon the possibility of separate recoveries under arguably separate claims. They have developed what one commentator has labeled a `legal rights test,' under which common underlying facts do not preclude the existence of similar claims. 6 Moore et al., supra, ¶ 54.33[2] at 54-196 n. 31 (discussing Tolson [v. United States, 732 F.2d 998 (D.C.Cir.1984)]).
"Nonetheless, certain points of agreement emerge from the cases. For instance, `[i]t is clear that a claimant who presents a number of alternative legal theories, but whose recovery is limited to only one of them, has only a single claim of relief for purposes of Rule 54(b).' Page [v. Preisser], 585 F.2d [336] at 339 [(8th Cir.1978)] (citing Edney v. Fidelity & Guar. Life Ins. Co., 348 F.2d 136, 138 (8th Cir.1965)). Although courts generally agree on these points, they do not fully reveal the contours of the phrase `claim for relief.' And we are reluctant, at least in this case, to rush in where other courts fear to tread. Like them, rather than attempting to formulate a generally applicable definition, we take note of the foregoing `rules of thumb' and decide the case at hand."
940 F.2d at 930-32 (footnotes omitted).[2] The Seventh Circuit employed similar reasoning in Stearns:
*998 "Unfortunately, there is no clear test to determine when claims are separate for purposes of the rule. Local P-171 [Amalgamated Meat Cutters v. Thompson Farms Co.], 642 F.2d [1065] at 1070 [(7th Cir.1981)]. Nonetheless, we have recognized certain rules of thumb to identify those types of claims that can never be considered separate, and have examined the remainder on a case-by-case basis. The first rule is that `claims cannot be separate unless separate recovery is possible on each. . . . Hence, mere variations of legal theory do not constitute separate claims.' 642 F.2d at 1071. The second is that `claims so closely related that they would fall afoul of the rule against splitting claims if brought separately' may not be considered as separate. Id."
747 F.2d at 1108-09.
The United States Court of Appeals for the Second Circuit enunciated the following test in Rieser v. Baltimore & Ohio R.R., 224 F.2d 198, 199 (2d Cir.1955), that the commentators in Federal Practice & Procedure find workable: "The ultimate determination of multiplicity of claims must rest in every case on whether the underlying factual bases for recovery state a number of different claims which could have been separately enforced." The commentators then state:
"A single claimant presents multiple claims for relief under the Second Circuit's formulation when the possible recoveries are more than one in number and not mutually exclusive or, stated another way, when the facts give rise to more than one legal right or cause of action. . . . However, when a claimant presents a number of legal theories, but will be permitted to recover only on one of them, the bases for recovery are mutually exclusive, or simply presented in the alternative, and plaintiff has only a single claim for relief for purposes of Rule 54(b). Similarly, when plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) does not apply."
10 Charles Alan Wright et al., Federal Practice & Procedure § 2657 (3d ed.1998) (footnotes omitted).
In his complaint, Tucker alleges the following claims against Scrushy: breach of fiduciary duty by insider trading; breach of fiduciary duty by false accounting and omissions in public disclosures; interested transactions and waste of corporate assets; misappropriation of corporate assets; unjust enrichment; breach of contract; civil conspiracy; willful violation of the law; intentional, reckless, and innocent misrepresentation and suppression; breach of duty of loyalty and good faith; and fraud, misrepresentation, and the breach of the fiduciary duties of loyalty, care, and disclosure. We conclude that the various claims in the complaint are not all variations on a single theme. Scrushy's alleged breach of duty in accepting bonuses that HealthSouth was not legally obligated to pay is a sufficiently separate breach that is not alleged elsewhere in the complaint. Therefore, the unjust-enrichment claim is a separate claim that will support a Rule 54(b) certification.
No substantial issue appears to be presented with reference to the extent to which the financial statements were incorrect. Scrushy does not argue that any of the revised yearly income gain or loss totals are incorrect. As we have previously *999 stated, for purposes of the partial summary judgment appealed here, the trial court assumed "that Defendant Scrushy had no actual knowledge of, played no part in and had no active participation in any of the criminal activities that resulted in the falsification and fabrication of the originally filed financial documents that are at issue." The facts presented in support of the unjust-enrichment claim appear at this juncture in the proceedings to be straightforward[3] the Form 14A proxies provided that no bonuses would be paid unless HealthSouth's annual net income exceeded its budgeted net income, bonuses were paid based on incorrect financial statements, and it is now known that during the years in question HealthSouth actually had net losses instead of net gains. The facts underlying the unjust-enrichment claim are sufficiently discrete that the claim can be reviewed separately and apart from the other claims in the complaint. The narrow issues surrounding the bonuses paid to Scrushy are not likely to be presented to us again in the event the remainder of this case is appealed to this Court. See 10 Charles Alan Wright et al., Federal Practice & Procedure § 2659: "It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the district court renders its decision on the remaining claims or as to the remaining parties."
We now turn to the question whether the trial court exceeded its discretion in concluding that there was no just reason for delay in bringing this interlocutory appeal. Under the facts presented by this case, we cannot say that the trial court exceeded its discretion. Such a discretionary standard of review requires a presumption in favor of the ruling of the trial court, and this Court will not set aside that ruling unless we are convinced that the trial court exceeded the discretion vested in it.
Scrushy points to the claims that he asserts in other actions and proceedings that, he says, give rise to the prospect for a setoff. In Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980), the United States Supreme Court construed Rule 54(b), Fed.R.Civ.P., in a setting in which the United States District Court had rejected the existence of potential setoffs as a basis for declining to determine that there was no just reason for delay. The United States Court of Appeals for the Third Circuit revisited the district court's balancing of the equities and reversed the district court's entry of a Rule 54(b) order. The Supreme Court reversed the Court of Appeals, holding, "The mere presence of [nonfrivolous counterclaims], however, does not render a Rule 54(b) certification inappropriate. If it did, Rule 54(b) would lose much of its utility." 446 U.S. at 9, 100 S.Ct. 1460. Later, the Court observed:
"The question in cases such as this is likely to be close, but the task of weighing and balancing the contending factors is peculiarly one for the trial judge, who can explore all the facets of a case. As we have noted, that assessment merits substantial deference on review. Here, the District Court's assessment of the equities between the parties was based on an intimate knowledge of the case *1000 and is a reasonable one. The District Court having found no other reason justifying delay, we conclude that it did not abuse its discretion in granting petitioner's motion for certification under Rule 54(b)."
446 U.S. at 12-13, 100 S.Ct. 1460 (footnote omitted). Likewise, we are here dealing with extremely complex litigation pending before the trial court and courts in other jurisdictions. We defer to the trial court's superior intimacy as to the equities in this case in the context of its finding as to the absence of any just reason for delay.
IV. Conclusion
A. The Propriety of the Rule 54(b) Certification
This Court concludes, based upon the materials before us at this stage of the proceeding, that the trial court did not err as a matter of law in its determination that the claim alleging unjust enrichment stemming from the payment of bonuses to Scrushy for the years 1997-2002 constitutes a separate claim against Scrushy. Further, we conclude, again based upon the materials before us at this stage of the proceeding, that the trial court did not exceed its discretion in concluding that there was no just reason for delay in the entry of judgment. Having found that the certificate entered by the trial judge pursuant to Rule 54(b) is appropriate, we vacate the stay of execution previously entered to protect the status quo while determining the propriety of the entry of the order pursuant to Rule 54(b).
B. The Emergency Motion to Stay the Judgment
In view of the propriety of the Rule 54(b) certification, the status of this proceeding reverts to the posture presented at the time Scrushy filed his emergency motion to stay execution of the judgment.
Rule 8, Ala. R.App. P., provides, in pertinent part:
"The appellant shall not be entitled to a stay of execution of the judgment pending appeal (except as provided in Rule 62(e), Ala. R. Civ. P.) unless the appellant executes bond with good and sufficient sureties, approved by the clerk of the trial court, payable to the appellee (or to the clerk or register if the trial court so directs), with condition, failing the appeal, to satisfy such judgment as the appellate court may render, when the judgment is:
"(1) For the payment of money only, in an amount equal to . . . 125% [of the amount of the judgment] if the judgment exceeds $10,000.00. . . . "
(Emphasis added.) The default rule is that the prevailing party may immediately execute on the judgment. If the appellant desires a stay, it is his responsibility to post the required bond. This Court has held that "[t]he language utilized in the rule is mandatory; the trial judge is given no discretion in setting the amount of the supersedeas bond." Ex parte Spriggs Enters., Inc., 376 So.2d 1088, 1089 (Ala.1979).
In Ware v. Timmons, case no. 1030488, in response to a motion to suspend the requirement of Rule 8(a)(1), this Court issued an order in which it recognized a narrow exception to Rule 8. In that case, this Court directed the trial court to accept "the maximum bond obtainable, based on the appellants' entire net worth and available insurance coverage. . . ." The Ware exception is now recorded in the Committee Comments to Rule 8(a) and (b), Adopted January 12, 2005. The Comments note that the modification to the supersedeas bond requirement in Ware was derived from this Court's authority under Rule 2(b), Ala. R.App. P., to suspend *1001 a rule of procedure for "good cause shown."[4]
In his brief in support of his motion to stay execution of the judgment that he filed with the trial court, Scrushy stated that "[t]hrough counsel, [he] has investigated obtaining a supersedeas bond and cannot do so." As evidence, he presented an affidavit by William S. Dodson, Jr., president of Robinson-Adams Insurance, Inc., a property and casualty insurance agency in Birmingham. Dodson's affidavit states, in pertinent part, as follows:
"4. After being contacted by . . . counsel for Mr. Scrushy, I have worked to help Mr. Scrushy procure an appeal/supersedeas bond in the amount of $59,300,000 in this case.
"5. Specifically, I have talked to Safeco, CNA, St. Paul/Travelers, AIG, Hartford Indemnity Company and Centennial Casualty Company. All of these sureties have declined to offer a bond to Mr. Scrushy.
"6. I have also talked to Capitol Indemnity Insurance Company and Zurich Insurance Company. Each of these surety companies said that they would not consider issuing the required supersedeas bond unless Mr. Scrushy would fully collateralize the surety's bond obligation by posting an irrevocable evergreen letter of credit in the amount of the bond penalty issued by a bank that was acceptable to the surety company. To date, I have not been informed that Mr. Scrushy can or will obtain an acceptable letter of credit in the required amount to fully collateralize an appeal bond, so no surety has, at this point, been willing to entertain further the issuance of the bond."
This evidence did not show that Scrushy could not obtain a bond, but only that he would first have to obtain a letter of credit. Notably, Scrushy presented no evidence indicating that he could not obtain a letter of credit. Dodson's statement that he had "not been informed" that Scrushy could obtain a letter of credit explains the state of his knowledge, but it does not offer any evidence as to Scrushy's ability to do so. In Scrushy's emergency motion to stay execution of the judgment, counsel asserted that "[n]either he [Scrushy] nor any other individual could conceivably come up with $60 million in cash for such a bond." Absent evidence from Scrushy as to his inability to make any arrangements that would satisfy the requirements for posting a supersedeas bond, consideration of the Ware option is premature. We therefore deny the emergency motion to stay execution of the judgment.
STAY ISSUED FEBRUARY 8, 2006, VACATED; EMERGENCY MOTION TO STAY EXECUTION OF THE JUDGMENT DENIED.
NABERS, C.J., and SEE, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.
LYONS, Justice.
Richard M. Scrushy, the defendant in this case, appealed from a partial summary judgment entered in favor of the plaintiff, Wade Tucker, concerning bonuses paid by HealthSouth Corporation to Scrushy during the years 1997 through 2002. The trial court made the judgment final pursuant to Rule 54(b), Ala. R. Civ. P. As a preliminary matter, this Court ordered the parties to show cause whether the judgment was appropriate for certification as a final judgment pursuant to Rule 54(b). In addition, *1002 we ordered execution of the judgment stayed pending further orders of the Court. After considering the parties' responses to this Court's show-cause order, we concluded that the trial court's Rule 54(b) certification was appropriate, and we vacated the stay of the execution of the judgment and allowed the appeal in this case to proceed. See Scrushy v. Tucker, [Ms. 1050564, April 12, 2006] ___ So.2d ____ (Ala.2006) ("Scrushy I"). We now address the merits of the appeal, and we affirm the judgment.
I. Factual Background and Procedural History
We detailed the factual background and procedural history of this case in Scrushy I:
"Wade Tucker, a shareholder of HealthSouth Corporation, filed a shareholder's derivative lawsuit on behalf of HealthSouth against Scrushy, the former chief executive officer for HealthSouth, and numerous other defendants. This case is one of three civil actions filed as a result of alleged fraudulent accounting practices at HealthSouth. The other two civil cases are pending in the United States District Court for the Northern District of Alabama and in the Delaware Chancery Court. In addition, criminal charges were brought against Scrushy in the same federal court. All of the civil cases were stayed during the pendency of the criminal proceedings against Scrushy. After a lengthy trial, Scrushy was acquitted of the criminal charges against him.
"Tucker's complaint alleges that Scrushy and others perpetrated an accounting fraud against HealthSouth, resulting in massive financial losses by HealthSouth and ultimately its shareholders. Tucker's complaint alleges claims of insider open-market trading, fraud, breach of fiduciary duty by corporate directors, professional negligence by auditors, aiding and abetting or civil conspiracy by an investment banking firm, and breach of contract. Tucker's complaint also alleges that Scrushy was unjustly enriched when he accepted bonuses as a result of overvalued financial statements that misstated HealthSouth's net income, which, Tucker alleges, was in violation of a contract between HealthSouth and Scrushy. As to the claim of unjust enrichment, Tucker's complaint alleges, in pertinent part, as follows:
"`34. Beginning in or about January 1997, and continuing into March 2003, defendants Scrushy [and others] knowingly and willfully conspired and agreed with each other, to commit the wrongdoing alleged herein, specifically, to misrepresent and falsely inflate earnings and HealthSouth's true financial condition. Scrushy [and other defendants] engaged in this fraud, misrepresentation and manipulation of income and earnings of HealthSouth to enrich themselves by artificially inflating HealthSouth's publicly reported earnings and earnings per share an[d] by fraudulently enhancing its reported financial condition.
"`35. Since 1999, Scrushy [and other defendants] overstated HealthSouth's earnings by at least $1.4 Billion. This massive overstatement occurred because Scrushy insisted that HealthSouth meet or exceed earnings expectations. When HealthSouth's earnings fell short of estimates, Scrushy directed HealthSouth's accounting personnel . . . to "fix it" by artificially inflating the company's earnings to match Wall Street expectations.
"`36. Scrushy [and other defendants] also created false journal entries *1003 to HealthSouth's income statement and balance sheet accounts. . . .
"`37. It was part of the wrongdoing and conspiracy that Scrushy [and other defendants] engaged in an unlawful scheme to inflate artificially HealthSouth's publicly reported earnings and earnings per share and to falsify reports of HealthSouth's financial condition so that they could reward themselves with bonuses, stock options, and other corporate perks. Scrushy personally benefitted from the scheme to artificially inflate earnings, having sold at least 7,782,130 shares of stock since 1999 at prices grossly inflated by the materially misstated financial statements. Scrushy [and other defendants] "earned" tens of millions of dollars in bonuses, stock options, and excessive salary and perks based on the inflated earnings.
"`. . . .
"`118. During each year from 1992 through his departure in March 2003, Scrushy received tens of millions of dollars in compensation from HealthSouth, including, but not limited to, salary, stock options, benefits, bonuses, incentive compensation, and other income from the corporation in the form of loans, benefits, and/or the use of equipment and facilities of HealthSouth.
"`119. The amounts paid by HealthSouth to Scrushy were grossly excessive, particularly when one considers the value of stock and dividends.
"`120. What is more, incentive compensation to Scrushy [and other defendants] in executive management, is based on HealthSouth's reported financial results. As these results are and were false, Scrushy [and the others] . . . benefitted improperly and were unjustly enriched to the extent they received incentive compensation based on exaggerated revenues and profits.
"`. . . .
"`COUNT VII
"`Unjust Enrichment
"`188. Plaintiff realleges and incorporates by reference the allegations in the preceding paragraphs 1 through 187 as though fully set out herein.
"`189. As a result of the transactions set out herein, all Individual Defendants [and other defendants] held money which, in equity and good conscience and under law, belongs to HealthSouth. Defendants have unjustly enriched themselves by breaches of the duty not to engage in self-dealing and interested transactions as pled herein. All such monies in the hands of defendants are due to be repaid to and for the benefit of HealthSouth.
"`190. Wherefore, Plaintiff, for and on behalf of HealthSouth, seeks money damages from the Defendants . . . in an amount to be determined by the trier of fact to compensate HealthSouth for its damage[], plus interest, attorneys' fees, costs, and all such other relief at law and equity to which the corporation may be entitled.'
"(Emphasis added.)
"After Scrushy was acquitted of the criminal charges, Tucker moved for a partial summary judgment in this case, seeking only restitution from Scrushy of bonuses he received from 1996 to 2002. The trial court's judgment summarizes the criminal activities affecting HealthSouth for the years 1996-2002 as follows:
*1004 "`HealthSouth, as a publicly traded company, is legally required to file accurate, audited and reliable financial information regarding its ongoing business operations. Some of this information is required to be filed on a quarterly basis and other information on an annual basis. Since March 2003 fifteen (15) senior HealthSouth executives have pled guilty to sundry and various criminal acts, including criminal fraud, specifically regarding the accuracy, reliability, falsification and fabrication of the financial information and documentation that HealthSouth was legally required to file during the years 1996 through 2002 inclusive. Included in the fifteen pleading executives are the five (5) chief financial officers who held that position at HealthSouth prior to March 18, 2003. As of this date, the fifteen pleading executives have been sentenced regarding their criminal activities and Defendant Scrushy's trial resulted in an acquittal. It is with this background that the instant matter comes before the Court.'
"Scrushy served as the Chief Executive Officer (`CEO') and as the Chairman of the Board of Directors of HealthSouth from 1984 until March 2003, except that he was not the CEO from August 27, 2002, to January 6, 2003. He was fired as HealthSouth's CEO on March 19, 2003, the day after the fraudulent activities were revealed, and he also resigned as Chairman of the Board of Directors. Scrushy signed the annual reports for HealthSouth on Forms 10K submitted to the Securities and Exchange Commission for the years 1996 through 2001, filed annual proxies on Forms 14A for the years 1996 through 2002, and ran for reelection as a director on these proxies. In each annual proxy on Form 14A from 1996 through 2002, HealthSouth disclosed the following criteria for the incentive bonuses it paid its executives:
"`Incentive Compensation: In addition to base salary, the [Compensation] Committee recommends to the Board of Directors cash incentive compensation for HealthSouth's executives, based on each executive's success in meeting qualitative and quantitative performance goals on an annual basis. The total incentive bonus pool available for the company's executives and management personnel is capped at the lesser of (a) the amount by which the company's annual net income exceeds the budgeted annual net income established by the Board of Directors and (b) 10% of the company's annual net income. No bonuses are payable unless annual net income exceeds budgeted net income. Individual incentive bonuses are determined on a basis that takes into account each executive's success in achieving standards of performance, which may or may not be quantitative, established by the Board of Directors and an executive's superiors. Bonus determinations are made on a case-by-case basis, taking into account appropriate quantitative and qualitative factors, and there is no fixed relationship between any particular performance factor and the amount of a given executive's bonus. Historically, incentive compensation has been a major component of HEALTHSOUTH's executive compensation, and the Committee believes that placing executives at risk for such a component has been effective in motivating such executives to achieve such goals.'
"(Emphasis added.)
"HealthSouth executives were eligible for two kinds of incentive bonusesannual *1005 bonuses and monthly target bonusesduring 1996 through 2002. However, according to the incentive compensation disclosure on the Form 14A proxies, no bonuses were to be paid in any year to any executive, including Scrushy, unless they were paid from the bonus pool that was capped at the lesser of 10% of HealthSouth's net income or the extent by which the actual net income exceeded the budgeted net income.
"HealthSouth paid both annual and target bonuses to Scrushy for the years 1996, 1997, 2001, and 2002, and only target bonuses to him for the years 1998-2000. The amounts of those bonuses are shown as follows:
"Year Annual Bonus Target Bonus Total Bonus
"2002 $10,000,000 $ 1,200,000 $11,200,000
"2001 $ 6,500,000 $ 2,400,000 $ 8,900,000
"2000 None $ 2,154,849 $ 2,154,849
"1999 None $ 134,031 $ 134,031
"1998 None $ 1,577,829 $ 1,577,829
"1997 $10,000,000 $ 2,400,000 $12,400,000
"1996 $ 8,000,000 $ 2,400,000 $10,400,000
____________ ___________ ___________
"Total $34,500,000 $12,266,709 $46,766,709
"After HealthSouth's financial problems became public, audits were conducted. Those audits revealed that for the year 1996 HealthSouth's actual net income was far less than had been originally reported and that for the years 1997-2002 HealthSouth had actually lost millions of dollars annually. The reported and actual net income for those years is shown as follows:
"Year Reported Net Income Actual Net Income
"2002 $135,704,000 $(466,824,000)
"2001 $202,387,000 $(191,225,000)
"2000 $278,465,000 $(364,243,000)
"1999 $ 76,517,000 $(326,443,000)
"1998 $ 46,558,000 $(556,482,000)
"1997 $330,608,000 $ (65,432,000)
"1996 $189,864,000 $ 88,360,000
"Based upon the actual annual net income for 1996 and the annual losses for the remaining years, Tucker argued in his summary-judgment motion that there was no bonus pool from which executive bonuses could have been paid and, therefore, that Scrushy should refund the bonuses that were wrongfully paid to him. The trial court noted in its judgment that `Scrushy . . . [did] not dispute that the originally filed financial information that HealthSouth filed as required by law was inaccurate, unreliable, false and fabricated. To the contrary, Defendant Scrushy's position is simply that he played no part in and is not responsible for any of the criminal activities that resulted in the falsification and fabrication of said financial statements.'
"With regard to the bonuses paid to Scrushy in 1996, the trial court held that because HealthSouth earned positive net income in 1996 issues of material fact precluded a summary judgment as to the 1996 bonuses. With regard to the bonuses paid to Scrushy in 1997-2002, however, the trial court concluded as follows:
"`As to all bonuses paid to Defendant Scrushy for the years 1997 through 2002 inclusive, HealthSouth incurred actual losses and no bonus pool existed out of which the bonuses for these years could properly have been paid to Scrushy. Scrushy was unjustly enriched by these payments to the detriment of HealthSouth and to allow Scrushy to retain the benefit of these payments would be unconscionable. These payments must be returned and Plaintiff Tucker is entitled to summary judgment for the bonuses paid to Scrushy for the years 1997 through 2002 inclusive.'
"The trial court entered a total judgment against Scrushy in the amount of $47,828,106, representing the bonuses paid for the years 1997-2002, plus prejudgment interest. The trial court further held that the judgment did not resolve other claims against Scrushy *1006 that remained pending, but it certified pursuant to Rule 54(b) that there was no just reason for delay and directed the entry of a final judgment concerning the bonuses for 1997-2002. Scrushy appealed and asked this Court to stay execution of the judgment pending appeal."
___ So.2d at ___. We declined to stay execution of the judgment.
II. Standard of Review
"The standard by which this Court will review a motion for summary judgment is well established:
"`The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present "substantial evidence" creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d) [,] Ala.Code 1975. Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
"`In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala. 1990).'"
Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).
In addition, the parties dispute in this case whether Delaware law or Alabama law controls. Because Delaware law and Alabama law are virtually identical concerning unjust enrichment, we need not decide which state's law controls in order to determine whether the trial court properly entered the judgment in Tucker's favor.
III. Analysis
A. Discovery
Scrushy first argues that the trial court erred in entering the judgment because, he says, the summary judgment denied him the opportunity to conduct discovery. He states in his brief that he "was not allowed to seek documents, send interrogatories, or depose witnesses." Tucker notes, however, that Scrushy never requested any discovery. This Court has reviewed the voluminous record in this case, and we find no attempt by Scrushy to propound interrogatories, to request production of documents, or to notice depositions. After Scrushy's criminal trial concluded and Tucker resubmitted his motion for a summary judgment as to the bonuses HealthSouth paid Scrushy, Scrushy did file an affidavit in which he stated that he requested a continuance for discovery purposes, but he provided no detail about the discovery or why that evidence was not available to him as contemplated by Rule 56(f), Ala. R. Civ. P.
"Some federal cases have, in fact, permitted consideration of whether `ample time and opportunities for discovery *1007 have already lapsed.' SEC v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir.1980); see also Kozikowski v. Toll Bros., Inc., 354 F.3d 16, 26 (1st Cir.2003) (stating that a court may grant a Rule 56(f) continuance if the party seeking the continuance `demonstrates that it was diligent in pursuing discovery before summary judgment surfaced'); Aviation Specialties, Inc. v. United Technologies Corp., 568 F.2d 1186, 1190 (5th Cir.1978) (stating that the `[p]laintiff must bear the consequences of its decision to proceed with discovery piecemeal' and holding that the district court did not abuse its discretion in failing to grant a continuance when the plaintiff had not initiated any discovery until his action had been on file for six months and after a pretrial conference had been conducted)."
McGhee v. Martin, 892 So.2d 398, 405 (Ala.Civ.App.2004).
Rule 56(f) allows a party opposing a summary-judgment motion to file an affidavit alerting the trial court that it is presently unable to present "facts essential to justify the party's opposition." The Committee Comments to August 1, 1992, Amendment to Rule 56(c) and Rule 56(f) state that "[s]uch an affidavit should state with specificity why the opposing evidence is not presently available and should state, as specifically as possible, what future actions are contemplated to discover and present the opposing evidence." The disposition of a request made pursuant to Rule 56(f) is discretionary with the trial court. Because Scrushy's affidavit did not meet the specificity requirements of Rule 56(f), we cannot say that the trial court exceeded its discretion in denying Scrushy's request for a continuance before it entered the judgment on the bonus issue. As the Court of Civil Appeals stated in McGhee v. Martin:
"In addition, it would be prudent for the party moving for the continuance to be certain that the affidavit contained more than vague assertions that more discovery is needed. Our supreme court has indicated that it requires something more than a conclusory affidavit in the typical Rule 56(f) case. See, e.g., Stallworth [v. AmSouth Bank of Alabama], 709 So.2d [458] at 469 [(Ala.1997)] (`[The Rule 56(f) movant's] conclusory affidavit fails even to identify what crucial evidence pertaining to his . . . claim discovery might disclose.')."
892 So.2d at 405.
B. The Target Bonuses
Scrushy next argues that his employment contract with HealthSouth governed the payment to him of target bonuses, notwithstanding the provision for bonuses in the annual proxy on Form 14A. Scrushy contends that HealthSouth was contractually obligated to pay his annual and monthly target bonuses, and, he says, he is entitled to retain those funds. Scrushy relies on paragraph 5(b) of his employment contract. The employment contract Scrushy executed in 1998 states, in pertinent part:
"Annual Target Bonus. The Company shall provide the Executive with the opportunity to earn an annual target bonus (the `Annual Target Bonus') equal to at least $2,400,000. The amount of the Annual Target Bonus will be reviewed at least annually by the Compensation Committee for consideration of appropriate merit increases and, once established at a specified amount, the Annual Target Bonus shall not be decreased during the Employment Period. . . . The Annual Target Bonus will be payable in the event that the Company's operations meet the annual performance standard set forth in the Company's business plan, as approved by the Compensation *1008 Committee in each year of the Employment Period (the `Business Plan'). In the event that the Company's operations meet the monthly performance standard set forth in the Business Plan, an amount equal to one-twelfth (1/12) of the Annual Target Bonus (a `Monthly Target Bonus') shall be payable within five days following the date the Company's internal monthly financial statements have been completed. In the event that any Monthly Target Bonus shall not be paid during the course of such calendar year because the relevant monthly performance standard was not met, such Monthly Target Bonus shall again become available for payment if the Company attains its annual performance standard for such calendar year. In the event that the annual performance standards are not met, Executive shall nevertheless be entitled to retain all amounts theretofore received in respect of any Monthly Target Bonuses paid during the course of such calendar year. . . . "
Scrushy's other employment contracts had similar provisions. Scrushy argues that pursuant to paragraph 5(b) the target bonuses were separate from the annual incentive bonuses available to senior management; he also argues that the target bonuses did not relate to HealthSouth's annual income.
The trial court's order states:
"6. No bonuses were to be paid for any year to any executive, including Scrushy, except out of the bonus pool that was capped at the lower of (a) 10% of Net Income or (b) the extent to which actual Net Income exceeds budgeted Net Income. HealthSouth required a two-step process, the first to determine the amount available in a bonus pool to be paid to executives (including Scrushy) and the second to make bonus awards from that pool. HealthSouth never disclosed that any bonuses were ever paid to Scrushy outside of the pool.
". . . .
"12. Scrushy had two employment contracts with HealthSouth during the years 1996 through 2002, the first dated April, 1986 and the second dated April 1, 1998. These employment contracts provided to Defendant Scrushy the `opportunity' to earn bonuses on the same basis as other qualifying executives of HealthSouth. This Court specifically finds these employment contracts between Scrushy and HealthSouth did not guarantee the payment of any type bonus to Defendant Scrushy. To the contrary, any bonuses payable to Mr. Scrushy would come out of the same bonus pool as was available to all other qualifying executives and which has been identified in paragraph 5 above [which quotes the Form 14A disclosure]."
(Emphasis in the trial court's order.)
We agree with the trial court's conclusion. Paragraph 5(b) of the employment contract merely provides Scrushy with "the opportunity to earn an annual target bonus." (Emphasis added.) It is clear from the Form 14A disclosure that a "total incentive bonus pool available for the company's executives and management personnel" provided the funds from which all bonuses were to be awarded. That disclosure also contained the following unequivocal statement: "No bonuses are payable unless annual net income exceeds budgeted net income." Without annual net income, Scrushy could not have had the opportunity to earn the target bonuses that were the subject of paragraph 5(b) of his employment contract. Because Scrushy's employment contract could not have obligated HealthSouth to pay bonuses when the company not only had no *1009 annual net income, but had, in fact, sustained an annual net loss, the employment contract supplements and does not contradict the provision for bonuses in the annual proxy on Form 14A, and the trial court correctly did not consider the provisions in the employment contract in determining that Scrushy was not entitled to keep the funds.[1]
C. The 1997 Annual Bonus
Scrushy next argues that the annual bonus of $10 million that he says in his brief to this Court was paid to him in the spring of 1997 related to HealthSouth's performance in 1996, a year for which the company had annual net income. Scrushy stated in his affidavit in opposition to Tucker's summary-judgment motion:
"8. With the exception of the monthly target bonuses, whenever I received a bonus, I received it in the spring. HealthSouth reported the bonus in the following year's annual proxy filings with the SEC. For example, HealthSouth reported in its April 1997 proxy statement that I received in 1996 certain bonuses that related to 1995 and prior years."
Scrushy reasons that HealthSouth could not have determined its net income for 1997 until after December 31, 1997; therefore, he argues, the annual bonus paid in the spring of 1997 must have been based on a "look back" at HealthSouth's annual net income for 1996.
In response to Scrushy's argument, Tucker cites the Form 14A disclosure filed with the SEC on April 17, 1998. Contained in that form is a "Summary Compensation Table" reporting annual and long-term compensation for Scrushy and certain other executives of HealthSouth. The form states:
"The following table sets forth compensation paid or awarded to the Chief Executive Officer and each of the other four most highly compensated executive officers of the Company (the `Named Executive Officers') for all services rendered to the Company and its subsidiaries in 1995, 1996, and 1997."
In a column labeled "BONUS/ANNUAL INCENTIVE AWARD," the Form 14A reports that Scrushy was paid a bonus of $5,000,000 for 1995, $8,000,000 for 1996, and $10,000,000 for 1997. The report to the SEC makes it clear that an annual bonus in the amount of $10,000,000 was paid to Scrushy for 1997, regardless of when it was paid to him. Scrushy's affidavit merely states that he received bonuses other than target bonuses "in the spring" and refers to the proxy filings as dispositive; yet a review of the proxy filings does not substantiate the conclusion he asks us to draw from the affidavit. He does not allege in his affidavit that he received the $10,000,000 bonus in the spring of 1997. Therefore, we conclude that the affidavit creates no genuine issue as to material fact.
D. Unjust Enrichment
Scrushy next argues that Tucker did not establish the necessary elements to prove unjust enrichment. Specifically, he argues that Tucker did not prove that it would be unconscionable for Scrushy to keep the bonuses he earned from 1997 through 2002 and that the trial court erred in entering the partial summary judgment because, Scrushy says, the judgment did not "balance the equities," did not consider Scrushy's "detrimental reliance," and did *1010 not account for the absence of any evidence indicating unconscionability. Scrushy contends that he relied to his detriment on the finality of the bonus compensation when he paid taxes on that income, when he made substantial charitable contributions based on that income, and when he otherwise incurred expenses that he cannot now retrieve. In effect, he says, the trial court has ordered him to forfeit those bonuses, and he cites cases from both Alabama and Delaware holding that equity "abhors a forfeiture."[2]
Scrushy also argues that the trial court erred in relying on a Delaware decision in another aspect of the litigation against him, the "buyback decision." See In re HealthSouth Corp. S'holders Litig., 845 A.2d 1096 (Del.Ch.2003), aff'd, 847 A.2d 1121 (Del.2004). Scrushy argues in his brief to this Court that the trial court's "heavy reliance" upon the buyback decision was "unwarranted" because, he says, that decision is "internally inconsistent and thus fundamentally flawed because it purports to base its conclusion on Mr. Scrushy's innocence of any wrongdoing, when in reality it is based on Mr. Scrushy's alleged breach of duties as CEO of HealthSouth concerning its reporting of financial information." Because he was under indictment when the buyback decision was rendered, Scrushy says, he could not effectively defend himself and therefore did not tender his employment contract to the court hearing that litigation. Furthermore, he says, the buyback decision involved a single transaction, whereas this case involves six years of what he describes as "contractually-required Target Bonuses, as well as discretionary Annual Bonuses." Because we have already concluded that Scrushy's employment contract is not inconsistent with the provision for bonuses in the annual proxy statement, this argument has no merit.
We further conclude that the trial court's references in its summary-judgment order to the buyback decision were not unwarranted. The trial court stated:
"The courts of Delaware rescinded a 2002 transaction wherein Scrushy repaid a $25 million loan to HealthSouth with shares of his HealthSouth stock artificially inflated by the same accounting fraud that raged on his watch as CEO. In Re HealthSouth Shareholders Litig., 845 A.2d 1096 (Del.Ch. Nov.2003), aff'd, 847 A.2d 1121 (Del.2004), . . . rearg. denied (April 30, 2004) (hereinafter the `Buyback Decision'). The Delaware Supreme Court affirmed the Buyback Decision en banc for all the reasons stated in the opinion of the Court of Chancery. The parties contest the effect of the Buyback Decision in these motions. This Court concludes that even if it is not given collateral estoppel effect, the Buyback Decision stands as important precedent as to the law of Delaware regarding unjust enrichment, innocent misrepresentation, and the responsibility of a CEO for his corporation's financial statements when he is enriched by their falsity at the expense of his own corporation."
(Emphasis in the trial court's order.)
The trial court clearly did not give the buyback decision preclusive effect, but instead relied upon it as precedent setting *1011 forth Delaware law concerning a chief executive officer's responsibility for the financial statements of the officer's corporation. Tucker argues in his brief to this Court that the buyback decision stands for the proposition that "[a] CEO cannot profit at the expense of his corporation from a material fraud in the financial statements prepared on his watch." The buyback decision states: "After all, it was [Scrushy's] managerial responsibility to ensure the filing of accurate statements and he should not, as a fiduciary, benefit at the expense of the object of his trust when his efforts were insufficient." 845 A.2d at 1106.
The Supreme Court of Delaware discussed the theory of unjust enrichment as follows:
"For a court to order restitution it must first find the defendant was unjustly enriched at the expense of the plaintiff. `Unjust enrichment is defined as "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience."' [Fleer Corp. v. Topps Chewing Gum, Inc., 539 A.2d 1060, 1062 (Del.1988) (quoting 66 Am.Jur.2d Restitution and Implied Contracts § 3, p. 945 (1973)).] To obtain restitution, the plaintiffs were required to show that the defendants were unjustly enriched, that the defendants secured a benefit, and that it would be unconscionable to allow them to retain that benefit. [Id. at 1063.] Restitution is permitted even when the defendant retaining the benefit is not a wrongdoer. [Id.]
"`Restitution serves to "deprive the defendant of benefits that in equity and good conscience he ought not to keep, even though he may have received those benefits honestly in the first instance, and even though the plaintiff may have suffered no demonstrable losses."' [Id. at 1063]."
Schock v. Nash, 732 A.2d 217, 232-33 (Del. 1999) (footnotes omitted; bracketed cites added).
The law in Alabama concerning unjust enrichment is substantially the same:
"To prevail on a claim of unjust enrichment, the plaintiff must show that the `"defendant holds money which, in equity and good conscience, belongs to the plaintiff or holds money which was improperly paid to defendant because of mistake or fraud."' Dickinson v. Cosmos Broad. Co., 782 So.2d 260, 266 (Ala. 2000) (quoting Hancock-Hazlett Gen. Constr. Co. v. Trane Co., 499 So.2d 1385, 1387 (Ala.1986)) (some emphasis omitted; some emphasis added). `The doctrine of unjust enrichment is an old equitable remedy permitting the court in equity and good conscience to disallow one to be unjustly enriched at the expense of another.' Battles v. Atchison, 545 So.2d 814, 815 (Ala.Civ.App.1989) (emphasis added).
"`[T]he remedy of restitution is designed to remedy the detrimental effects caused by unjust enrichment.' Utah Foam Prods., Inc. v. Polytec, Inc., 584 So.2d 1345, 1351 (Ala.1991). `A claim for restitution is equitable in nature, and permits a trial court to balance the equities and to take into account competing principles to determine if the defendant was unjustly enriched.' United Coastal Indus., Inc. v. Clearheart Constr. Co., 71 Conn.App. 506, 513, 802 A.2d 901, 906 (2002) (emphasis added). Consequently, `"[t]he success of a claim for unjust enrichment depends on the particular facts and circumstances of each case."' DJ Painting, Inc. v. Baraw Enters., Inc., 172 Vt. 239, 245, 776 A.2d 413, 419 (2001) (quoting Morrisville Lumber Co. v. Okcuoglu, 148 Vt. 180, 184, 531 A.2d 887, 889 (1987))."
*1012 Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1122-23 (Ala.2003).
We conclude that, under the law of either Delaware or Alabama, Scrushy was unjustly enriched by the payment of the bonuses, which were the result of the vast accounting fraud perpetrated upon HealthSouth and its shareholders, and that equity and good conscience require restitution in the form of repayment of those bonuses. Even though for purposes of the judgment the parties stipulated that Scrushy did not participate in and is not responsible for any of the criminal activities that resulted in the falsification of the financial statements, the trial court noted in its judgment that Scrushy does not dispute that the financial information originally filed by HealthSouth was inaccurate and unreliable. As between Scrushy and HealthSouth, it would be unconscionable to allow Scrushy to retain millions of dollars awarded to him in the form of bonuses at the expense of the corporation he served as chief executive officer and its shareholders.
E. Equity
Finally, Scrushy argues that the trial court erred in entering what he describes as an "inequitable order" requiring him to repay funds he never received. He argues that it was inequitable for the trial court to order him to repay the gross amount of the bonuses awarded rather than the net after-tax amount he received. Equitable principles of unjust enrichment, he argues, can require him to repay only the amount he "unjustly" received, and because he never "received" the portion of the bonuses allocated to taxes, he should not be compelled to return that portion of the bonuses.
We find no merit to this argument. Scrushy was credited with the gross amount, and HealthSouth was concomitantly deprived of the amount paid to Scrushy in bonuses, regardless of whether Scrushy paid a certain percentage of those funds in taxes. Whether Scrushy can obtain a refund of the taxes paid upon his restitution of the bonuses is a matter between Scrushy and the taxing authorities.
IV. Conclusion
We conclude that the trial court properly entered the partial summary judgment as to the bonuses awarded to Scrushy for the years 1997-2002. We therefore affirm that judgment.
AFFIRMED.
NABERS, C.J., and SEE, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.
NOTES
[1] Federal cases are authoritative in construing the Alabama Rules of Civil Procedure because the Alabama rules were patterned after the Federal Rules of Civil Procedure. Borders v. City of Huntsville, 875 So.2d 1168, 1176 n. 2 (Ala.2003).
[2] The Fifth Circuit noted in Samaad that numerous courts have observed the difficulty of this inquiry. See also Jack Walters & Sons v. Morton Bldg., 737 F.2d 698, 701-02 (7th Cir. 1984); Tolson v. United States, 732 F.2d 998, 1001 (D.C.Cir.1984); Local P-171, Amalgamated Meat Cutters v. Thompson Farms Co., 642 F.2d 1065, 1070 (7th Cir.1981); Page v. Preisser, 585 F.2d 336, 339 (8th Cir.1978); and Gas-A-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102, 1104 (10th Cir.1973).
[3] We emphasize that the merits of Scrushy's appeal are not yet before us. We do not here decide whether the trial court's entry of the partial summary judgment on the unjust-enrichment claim was proper. We decide only whether the certification of the judgment as immediately appealable pursuant to Rule 54(b) was proper and, if so, whether to stay execution of the judgment.
[4] The Comments also state that modification of the supersedeas-bond requirement is appropriate "in extraordinary circumstances."
[1] Scrushy also argues that because a valid contract governs the subject matter of bonus compensation, the trial court erred in basing its ruling on the equitable theory of unjust enrichment. Because we conclude that the employment contract does not contain any provision that is inconsistent with the provision in the annual proxy statement preventing the award of bonuses in the absence of net income, this argument has no merit.
[2] Scrushy relies on the affidavit of Dr. Wayne Guay, whom he describes in his brief as "a leading expert on executive compensation." Dr. Guay offered in his affidavit his opinion that many public corporations award bonus compensation even when the corporation's net income is negative. Dr. Guay's opinion, however, does not take into consideration HealthSouth's unequivocal statement in its Form 14A disclosure that "[n]o bonuses are payable unless annual net income exceeds budgeted net income." Other corporations may award bonuses in the face of negative net income, but that was clearly not HealthSouth's practice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619932/ | 980 S.W.2d 767 (1998)
Vivian L. McDOUGALL (fka Havlen), Appellant,
v.
Harold HAVLEN, Appellee.
No. 04-97-00413-CV.
Court of Appeals of Texas, San Antonio.
September 9, 1998.
Rehearing Overruled October 27, 1998.
*768 Gary A. Beahm, Gary A. Beahm, P.C., San Antonio, for Appellant.
James N. Higdon, Higdon, Hardy & Zuflacht, L.L.P., for Appellee.
Before RICKHOFF, DUNCAN and ANGELINI, JJ.
OPINION
RICKHOFF, Justice.
This case requires us to decide whether the Texas policy treating undivided community property assets as tenancies in common is sufficient to satisfy the requirements of the federal Uniformed Services Former Spouses Protection Act ("USFSPA"). Because we find that Texas law does "treat" a military pension for purposes of USFSPA, we reverse and remand.
Harold Havlen ("Havlen") joined the Air Force in 1952; he and Vivian McDougal ("McDougall") were married in 1953. He retired in 1972; the two were divorced in 1976. The divorce decree inexplicably failed to apportion his pension, and there was no residuary clause. The only asset mentioned in the decree was the couple's house, which was awarded to Havlen; he testified he sold the house and split the proceeds with McDougall.
In 1996, McDougall filed a petition to partition the "undivided asset," namely the military retirement pay. Havlen moved for summary judgment based upon the pleadings alone, citing the federal statutory bar to reopening divorce decrees prior to 1981, 10 U.S.C.A. § 1408(c)(1)(West Supp.1998), the limitations found in the Family Code, and on the equitable principles of estoppel and laches. TEX. FAM.CODE ANN. §§ 3.70(c), 3.90(c) and 3.91 (Vernon 1994)(now codified at TEX. FAM.CODE ANN. §§ 9.002, 9.202 and 9.203 (Vernon Supp.1998)). The trial court granted summary judgment without specifying a ground.
In three points of error McDougall argues the trial court erred in granting summary judgment because her claim is not barred by 10 U.S.C. § 1408(c)(1); because her cause of action is not barred by TEX. FAM.CODE ANN. §§ 3.70(c) and 3.90(c); and because her cause of action is not barred by estoppel and laches.
STANDARD OF REVIEW
The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. *769 TEX.R. CIV. p. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex.1985). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant; every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549.
A defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). A movant may also prove entitlement to summary judgment by conclusively proving all elements of an affirmative defense. Montgomery v. Kennedy, 669 S.W.2d 309 (Tex.1984). Conversely, since the trial court did not specify on which ground it based its grant of summary judgment, the summary judgment must be affirmed if any of the grounds advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Havlen moved for summary judgment on the pleadings, without accompanying evidence. We therefore take all facts, inferences and allegations in the pleadings as true and view them in the light most favorable to McDougall. Havens v. Tomball Community Hospital, 793 S.W.2d 690, 691 (Tex.App. Houston [1st Dist.] 1990, writ denied); Wood Truck Leasing v. American Auto. Ins. Co., 526 S.W.2d 223, 224-225 (Tex.Civ.App.San Antonio 1975, no writ).
PREEMPTION
Havlen first argues that McDougall's partition action is barred by federal law. We disagree.
In Texas, upon entry of a divorce decree the former spouses hold any undivided community property as tenants in common. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970). The proper method for addressing an undivided asset is a partition suit. Id.,; Harrell v. Harrell, 692 S.W.2d 876 (Tex. 1985). The court in such a partition suit has the power to divide the property in a manner that the court deems just and right. TEX. FAM.CODE ANN. § 3.91 (now codified at TEX. FAM.CODE ANN. § 9.203(a) (Vernon 1998)).
However, the power of Texas courts to apportion military retirement pay as part of the community estate is circumscribed by federal statute. In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the Supreme Court interpreted spendthrift language in military pension law to mean that Congress had preempted the power of state courts to divide military pensions on divorce. Congress responded by passing the United Services Former Spouses' Protection Act, 10 U.S.C. § 1408 (1988) which granted a limited right to state family law courts to treat military retirement pay as community property.
Through various clauses of USFSPA, Congress sought to regulate its grant of jurisdiction to community property states to divide military pensions. One of these clauses is at issue here:
A court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member's spouse or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member's spouse or former spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member's spouse or former spouse.
10 U.S.C.A. § 1408(c)(1) (West Supp. 1997). The purpose of the 1990 amendment is clearly set forth:
The committee is concerned because some state courts have been less than faithful in their adherence to the spirit of the law [USFSPA]. The reopening of divorce cases finalized before the Supreme Court's decision in McCarty v. McCarty that did not divide retired pay continues to be a significant problem. Years after final divorce decrees have been issued, some state courts, particularly those in California, have reopened cases (through partition actions *770 or otherwise) to award a share of retired pay. Although congress has twice stated in report language that this result was not intended, the practice continues unabated. Such action is inconsistent with the notion that a final decree of divorce represents a final disposition of the marital estate.
H.R.Rep. No. 665, 101st Cong., 2d Sess. 279 (1990), reprinted in 1990 U.S.C.C.A.N. 2931, 3005.
The question we face is whether Texas' practice "treat[s] (or reserve[s] jurisdiction to treat)" of the pension for purposes of the federal statute.
1. Prior Caselaw
Two courts of appeals have addressed our issue and reached opposite conclusions. Compare Walton v. Lee, 888 S.W.2d 604 (Tex.App.Beaumont 1994, writ denied), cert. denied, 516 U.S. 870, 116 S.Ct. 190, 133 L.Ed.2d 127 (1995) with Knowles v. Knowles, 811 S.W.2d 709 (Tex.App.Tyler 1991, no writ).
In Knowles, the court confronted a 1975 divorce and undivided retirement benefits; it held, without elaborating, that § 1408(c)(1) precluded an award of the community interest in a military spouse's pension. Id. at 710. Its holding was also bottomed in an unambiguous residuary clause which it held granted the entire pension to the military spouse. Id. at 711.
In contrast, the Walton court, confronted with a 1976 divorce and undivided military benefits, held that "under Texas law the courts automatically `treat (or reserve jurisdiction to treat) any amount of retired pay of the member' by virtue of the laws governing ownership of undivided property, and subsequent partition is not precluded by federal law." Id. at 605 (quoting 10 U.S.C. § 1408(c)(1)). Because we do not have a residuary clause, we find Walton more applicable to the task at hand.
The Texas Supreme Court construed 10 U.S.C. § 1408(c)(1) in Buys v. Buys, 924 S.W.2d 369 (Tex.1996). In that case, the court held that a general residuary clause which did not specifically mention a pension was sufficient to "reserve jurisdiction to treat" the pension and satisfy the statute. Buys, 924 S.W.2d at 372-373. The court found that the residuary clause in the divorce decree encompassed the pension; therefore the pension was clearly treated as a matter of state contract law. Id. at 373. The court noted that, in order to reach the conclusion that the residuary clause did not "treat" the benefits in question for purposes of the federal statute, "Congress would have had to intend that military retirement benefits the divorce decree already gave to a party years ago under applicable state law were taken away by enactment of the statute." Id. (emphasis in original). It also noted that such a construction would further the principle that in construing federal statutes, courts should strive to leave state family law unaltered. Id. (citing Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979)).
2. Application
Buys essentially held that an unambiguous residuary clause "treats" a military pension as a matter of state contract law. Id. at 372-373. In the instant case we are faced not with a matter dealt with by agreement of the parties, but of state property law operating in place of a residuary clause. However, using the guidance provided by Buys and Walton, we determine that the operation of state law, which converts an undivided asset into a tenancy in common, is indeed sufficient to "treat (or reserve jurisdiction to treat)" an undivided military pension for purposes of the statute.
First, Texas' historic practice of converting undivided community property into a tenancy in common, like the divorce decree in Buys, creates a vested property right in the non-military spouse as a matter of state law. And under state law, a cotenant in a tenancy in common has an absolute right to partition.[1]See, e.g., Ware v. Ware, 809 S.W.2d 569, 571 (Tex.App.San Antonio *771 1991, no writ). The Buys court grounded its decision in the theory that Congress did not mean to interfere with property rights already vested by state law. We find that rationale applicable here, even in the absence of an explicit residuary clause.
Second, the Buys decision drew substantial support from a persuasive law review article endorsing an exercise of jurisdiction by Texas courts in this situation. See Buys, 924 S.W.2d at 372; William Reppy Jr., The 1990 U.S.F.S.P.A. Amendments: No Bar to Recognition of Tenancy in Common Interests Created by pre-McCarty Divorces that Failed to Divide Military Retirement Benefits, 19 IDAHO. L.REV. 941 (1992). Indeed, even while purporting to reserve judgment on the question we face today, the Buys court cited to this passage of Reppy's article:
By converting a community interest in military retirement benefits into tenancy in common, a court certainly "deals with" the military property. There is no less "treating" or "dealing with" because the judge is not aware of the community assets not brought to the court's attention that are converted into tenancy-in-common properties. Employing the definition of the Texas court rather than that of Louisiana ... more closely achieves the end desired by Congress.
19 IDAHO L.REV. at 961 (footnotes omitted) (cited in Buys, 924 S.W.2d at 375).
Third, as Reppy points out, conversion into a tenancy in common does indeed change the nature of the asset. If a divorce decree explicitly converted the community interest to a tenancy in common, with its attendant changes in management powers and ownership, there could be no doubt that the court had "treated" the asset for purposes of the statute. See U.S.F.S.P.A. Amendments, 29 IDAHO L.REV. at 949. This court has previously defined "treat" to as "to deal with a matter or subject." Southern v. Glenn, 677 S.W.2d 576, 582 (Tex.App.San Antonio 1984, writ ref'd n.r.e.). We believe this conversion fits the definition of "treat" for purposes of the statute.
In sum, because we believe Congress did not intend to interfere with preexisting property rights, we hold that 1408(c)(1) does not bar McDougall's suit to partition the community property portion of the military pension. Therefore summary judgment on this ground would have been improper. We now look to see if the Texas Family Code bars McDougall's action.
STATUTORY PROVISIONS
The partition of undivided community assets is governed by Chapter 3 of the Texas Family Code. See TEX. FAM.CODE ANN. § 3.91 (Vernon 1994)(now codified at TEX. FAM.CODE ANN. § 9.203 (Vernon Supp.1998)). We now turn to the question of whether McDougall's petition for division of the pension is barred by this subchapter.
Havlen argues that the two-year statute of limitations contained in section 3.70(c) of the Family Code (now codified at TEX. FAM.CODE ANN. § 9.003) bars McDougall's action. We find that the plain language of this section defeats Havlen's argument.
Another section of the statute states that "[t]he procedures and limitations provided by this subchapter do not apply to existing property not divided on divorce and thereby held by the ex-spouses as tenants in common." TEX. FAM.CODE ANN. § 3.70(d) (now codified at TEX. FAM.CODE ANN. § 9.004). Because this is a suit to partition existing property not divided on divorce and held by the spouses as tenants in common, summary judgment on McDougall's claim based on this statute would be improper.
Secondly, summary judgment based on section 3.90(c) would have been improper because Havlen did not use it as a defense to McDougall's entire cause of action; instead, he asserted it as a defense against liability for payments received by him prior to June 21, 1994 (two years before McDougall filed suit). In any case, we find no evidence in the record showing an unambiguous repudiation by Havlen of McDougall's interest in his pension, or of his communication of that unambiguous repudiation to McDougall. Therefore summary judgment on this ground would have been improper.
Having determined that none of the Family Code's provisions block McDougall's suit, *772 we now turn to Havlen's common-law defenses.
ESTOPPEL AND LACHES
Finally, Havlen seeks to assert estoppel and laches as a defense against McDougall's claim. He contends that "equity demands... that after this long a period of time, the Court should leave the parties as it finds them." However, a party moving for summary judgment on an affirmative defense bears the burden of conclusively establishing every element of that affirmative defense. Montgomery, 669 S.W.2d at 314. This Havlen has failed to do.
To establish the defense of laches, for example, a party must show unreasonable delay by one having legal or equitable rights in asserting those rights, and a good faith change of position by another to his detriment because of that delay. Regent Int'l Hotels, Ltd. v. Las Colinas Hotels Corp., 704 S.W.2d 101, 106 (Tex.App.Dallas 1985, no writ). Although one could infer that over the course of twenty years Havlen often changed position in good-faith reliance on his continued receipt of full pension benefits, he did not supply evidence of this with his motion. Moreover, we indulge every inference in favor of the nonmovant, not the movant. Nixon, 690 S.W.2d at 549. Therefore we find summary judgment on this ground to be without support.
Similarly, the doctrine of equitable estoppel requires: (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations. Schroeder v. Texas Iron Works, Inc, 813 S.W.2d 483, 489 (Tex. 1991). Again, Havlen did not establish this defense with evidence. Therefore summary judgment on this ground is also without support.
CONCLUSION
Because there was no evidence attached to his motion, we find that none of the grounds presented by Havlen will support a motion for summary judgment. Therefore, the judgment of the trial court is reversed and the cause remanded for proceedings consistent with this opinion.
NOTES
[1] However, the parties may limit this right by agreement, and courts will enforce such agreements. See 57 Tex. Jur.3d Partition § 18 (1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920285/ | 107 B.R. 448 (1989)
In the Matter of Peter A. D'ANGONA, Debtor.
Peter A. D'ANGONA, Plaintiff,
v.
MARINE MIDLAND BANK; Malden Trust Company; Dr. David M. Bass; St. Mary's Windsor Locks Parish Federal Credit Union; Gulf Oil Company; Anthony Troiano; Anthony Troiano, Jr., d/b/a Anthony Troiano & Sons, Inc.; and Carte Blanche, Defendants.
Bankruptcy No. 2-87-00330, Adv. No. 2-88-0079.
United States Bankruptcy Court, D. Connecticut.
November 8, 1989.
Joel M. Grafstein, Bahrenburg and Grafstein, Avon, Conn., for debtor-plaintiff.
Alan J. Barth, Di Pietro, Kantrovitz & Brownstein P.C., New Haven, Conn., for Malden Trust Co., defendant.
MEMORANDUM OF DECISION
ROBERT L. KRECHEVSKY, Chief Judge.
I.
ISSUE
Peter A. D'Angona, a chapter 7 debtor, seeks a judgment in this core proceeding that he may use Bankruptcy Code §§ 506(a) and (d) for the purpose of avoiding liens on realty abandoned by the estate to him. The issue of such debtor's use of § 506 has been frequently addressed with conflicting results elsewhere, but no written ruling has been rendered in this district. For reasons that follow, I concur with those courts which conclude that the § 506 provisions may not be so used.
II.
BACKGROUND
The debtor filed a chapter 7 petition on October 22, 1986 in the bankruptcy court in Providence, Rhode Island. On the motion of a creditor, and over the debtor's objection, the case was transferred to the bankruptcy court at Hartford, Connecticut. 74 B.R. 577. The debtor's petition scheduled as his only significant asset a one-half interest in realty located at 536 Denslow Street, Windsor Locks, Connecticut (the realty). The realty, with a stated value of $68,000.00, was shown as encumbered by fifteen consensual and judicial liens which, on the date of the petition, in the aggregate totaled $241,819.52. The court granted the debtor a discharge and closed the case as a no-asset estate on May 14, 1987, without the realty having been administered. The realty thereby was abandoned to the debtor. *449 See Code § 554(c).[1]
On the debtor's motion, the court, on April 28, 1988, reopened the case. The debtor then brought the present complaint against seven creditors holding liens on the realty subsequent in time to a judgment lien of Hall & Muska, Inc. The complaint alleges that, with the exception of the lien held by the defendant Marine Midland Bank, the six other defendants cannot hold allowed secured claims because no equity remained for them in the realty after subtracting from the value of the realty the amounts due under the prior liens. As for the Marine Midland debt, the complaint asserts that only $794.57 is secured, with $13,545.06 representing an unsecured claim. The debtor, in paragraphs 3 and 4 of the complaint's prayer for relief, seeks an order of the court that under § 506(d) the Marine Midland lien is avoided for any amount in excess of $794.57, and that the other six named defendants' liens "are avoided as being unsecured." Malden Trust Company is the only defendant who filed a responsive pleading, and the debtor has secured the entry of default against the remaining defendants for failure to plead or otherwise defend. He now seeks a judgment against the defaulted defendants, and the question is whether, as a matter of law, he is so entitled. See In re Reardon, 10 B.R. 697, 699 (Bankr.D.Conn. 1981) (Even after default, it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action.).
III.
DISCUSSION
Section 506 of the Bankruptcy Code provides in part:
(a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest . . . is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, . . . and is an unsecured claim to the extent that the value of such creditor's interest . . . is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest.
. . . . .
(d) To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void unless
(1) such claims were disallowed only under section 502(b)(5) or 502(e) of this title; or
(2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title.
11 U.S.C. §§ 506(a), (d) (1988).
The courts currently are divided evenly on whether §§ 506(a) and (d), when taken together, permit chapter 7 debtors to avoid liens on property abandoned to or exempted by them to the extent there is no supporting value in the property. The seminal case which allows such use of § 506 is Tanner v. FinanceAmerica Consumer Discount Co. (In re Tanner), 14 B.R. 933 (Bankr.W.D.Pa.1981). The Tanner court concluded that to give a chapter 7 debtor the full benefit of the fresh-start policy underlying the Bankruptcy Code, it was appropriate to rely on the "plain language" of § 506(d) and to allow a debtor to utilize the section to avoid a third mortgage lien on her home when the two prior mortgages had exhausted the alleged market value of the house. Many courts have agreed. See In re Folendore, 862 F.2d 1537, 1539 (11th Cir.1989) ("The plain language of the statute, supported by the decisions of a majority of the bankruptcy courts, inferences drawn from the 1984 amendments, and common sense, requires the . . . lien be *450 voidable whether or not [the lienor's] claim has been disallowed under section 502."), and cases cited.
Other courts, following the lead of In re Mahaner, 34 B.R. 308 (Bankr.W.D.N.Y. 1983), have denied a chapter 7 debtor's use of § 506(d) to avoid a lien on non-estate property as being contrary to the thrust of the Code when all Code provisions are fully considered. See In re Doty, 104 B.R. 133 (Bankr.S.D.Iowa 1989); In re Dewsnup, 87 B.R. 676 (Bankr.D.Utah 1988); In re Maitland, 61 B.R. 130 (Bankr.E.D.Va.1986); In re Larson, 99 B.R. 1 (Bankr.D.Alaska 1989); In re Shrum, 98 B.R. 995 (Bankr.W. D.Okla.1989); In re Gaglia, 97 B.R. 250 (W.D.Pa.1989); In re Hoyt, 93 B.R. 540 (Bankr.S.D.Iowa 1988); In re Cordes, 37 B.R. 582 (Bankr.C.D.Cal.1984); In re Smith, 79 B.R. 650 (Bankr.D.Md.1987); and In re Sloan, 56 B.R. 726 (Bankr.D. Colo.1986).
I find the reasoning of these decisions more persuasive. Dewsnup represents one of the more fully-developed opinions. Dewsnup initially points out that Congress provided chapter 7 debtors with Code § 722 which permits debtors to "redeem tangible personal property intended primarily for personal, family, or household use" from liens "by paying the holder of such lien the amount of the allowed secured claim of such holder that is secured by such lien." See 11 U.S.C. § 722 (1988). Realty is not included in § 722. Therefore, to construe § 506(d) to permit debtors to overwhelm the narrow scope of § 722 and allow comparable lien avoidance on realty renders § 722 superfluous. Dewsnup, 87 B.R. at 679-80. Furthermore, to permit lien avoidance under § 506(d) grants chapter 7 debtors an advantage not available to chapter 11 debtors.[2] Congress included § 1111(b)(2) in chapter 11 to allow a partially secured creditor to elect to have his lien secure his entire debt and to forego any unsecured claims. See In re DRW Property Co. 82, 57 B.R. 987 (Bankr.N.D.Tex. 1986); 5 King, Collier on Bankruptcy par. 1111.02 (15th ed. 1989) ("Section 1111(b) represents an attempt by Congress to create a balance between the debtor's need for protection and a creditor's right to receive equitable treatment. . . . [S]ection 1111(b) protects the legitimate expectation of the secured lender that the bankruptcy laws will be used only as a shield to protect debtors and not as a sword to enrich debtors at the expense of secured creditors."). There is no apparent reason why Congress would not have granted like protection to chapter 7 secured creditors if it believed that § 506(d) would be used as sought here. It is evident from a reading of § 506(a) that determinations of "allowed secured claims" under that section are limited to "property in which the estate has an interest," thereby excluding property released to the debtor as exempt or abandoned. Dewsnup, 87 B.R. at 682. Dewsnup carefully analyzes the role of § 506 under the scheme of the Code to facilitate distribution of assets and participation of creditors in the bankruptcy process, concluding:
It is inconceivable to this court that Congress could have intended to create an avoiding power in a Chapter 7 debtor, respecting property which is not to be administered through the bankruptcy process, and which is based on a dichotomy created to facilitate the administration and distribution of the bankruptcy estate.
Since the rights in property which is abandoned remain the same as if no bankruptcy had been filed, it would be illogical to allow the debtors by virtue of § 506(d) to avoid a lien which they could not avoid out of bankruptcy.
Id. at 683 (citations omitted).
Larson, supra, further deflects the fresh-start argument of Tanner by noting that the legislative history of the Code emphasizes the various sections that promote the fresh-start concept. The use of § 506(d) as a separate avoiding power or an adjunct to the fresh start in the case of non-exempt property is never mentioned. Larson, 99 B.R. at 4. Larson also explores *451 the possible interplay of § 506(d) to supplement the remedies available to chapter 7 debtors provided by §§ 722 and 522 and finds no support for the use of § 506(d) as a stand-alone avoiding power. Id. Larson concludes:
Valuation is a precarious enough undertaking, which should be done only when the code requires it for some legitimate bankruptcy purpose. To subject a creditor to the vagaries and uncertainties of a valuation hearing where the strip down serves no valid chapter 7 purpose and is not an element of an honest debtor's fresh start is unfair to the creditor.
Id. (citations omitted).
The debtor in the brief submitted in support of his motion for judgment states that "[t]he Property is not the residence of the Debtor and therefore the Debtor is unable to utilize Section 522(f) to avoid liens." Code § 522(f) authorizes a debtor to avoid a lien "on an interest of the debtor in property to the extent that such lien impairs" a debtor's exemption if the lien is a judicial lien or a nonpossessory, nonpurchase-money security interest in certain described personalty. The debtor's argument means that despite Congress in § 522(f) having granted a debtor lien avoidance powers limited to judicial liens on realty where the debtor can claim an exemption, Congress has, at the same time, granted a debtor much greater avoidance powers in § 506(d), not limited to exempted realty and not limited to judicial liens. I consider such an inconsistent result additional evidence that the debtor's position in this proceeding is not sustainable.
IV.
CONCLUSION
Justice Scalia, speaking for a unanimous Supreme Court in United Savings Ass'n of Texas v. Timbers of Inwood Forest Assoc., 484 U.S. 365, 108 S.Ct. 626, 630, 98 L.Ed.2d 740, 748 (1988), stated that "[s]tatutory construction . . . is a holistic endeavor." The main difference, as I see it, dividing the courts on a debtor's unrestricted use of § 506(d), is whether to adopt the holistic or the plain language approach. A decade of experience convinces me that the intricacies of the Bankruptcy Code favor the use of holism, with plain language as applied to separate Code sections in isolation from other sections frequently constituting an oxymoron. Despite the superficial relevance of § 506(d) as a separate avoiding power to benefit a chapter 7 debtor holding title to exempt or abandoned property, I conclude that § 506(d) is not available to the plaintiff-debtor to avoid the liens held by the defendants. Cf. United States v. Ron Pair Enterprises, Inc., ___ U.S. ___, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290, 299 (1989) (where "the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters . . . the intention of the drafters, rather than the strict language, controls." (citations omitted)).
Judgment may enter denying the plaintiff-debtor's motion for judgment, and the complaint will be dismissed.
NOTES
[1] Section 554(c) provides:
"Unless the court orders otherwise, any property scheduled under section 521(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title." 11 U.S.C. § 554(c) (1988).
[2] An issue similar to that presented here on which the courts are divided involves the proper interpretation of §§ 506(d) and 1322(b)(2) for chapter 13 debtors. See In re Hougland, 886 F.2d 1182 (9th Cir.1989), and cases cited. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920298/ | 107 B.R. 715 (1989)
In re MILTON POULOS, INC., Debtor.
C & E ENTERPRISES, INC., dba Koyama Farms, a California corporation; Pleasant Valley Vegetable Cooperative, a California corporation; Teixeira Farms, Inc., a California corporation; Maulhardt Stiles Co., a partnership, Appellants,
v.
MILTON POULOS, INC., Appellee.
BAP Nos. CC-89-1053-JVMe, CC-89-1070-JVMe, Bankruptcy No. LA-87-21451-NCA, Ref. No. M7-096006-NCA.
United States Bankruptcy Appellate Panel of the Ninth Circuit.
Argued and Submitted on June 15, 1989.
Decided December 11, 1989.
*716 Lewis P. Janowsky, Ryan & Janowsky, Newport Beach, Cal., for appellants.
Leo O'Biecunnas, Jr., Zide & O'Biecunas, Los Angeles, Cal., for appellee.
Before JONES, VOLINN and MEYERS, Bankruptcy Judges.
JONES, Bankruptcy Judge:
Appellants, C & E Enterprises, Inc., dba Koyama Farms, et al, appeal a bankruptcy court order granting relief from the automatic stay and ordering Debtor, Milton Poulos, Inc., to pay various sums to eight particular court designated trust beneficiaries. Appellants contend that two of the designated beneficiaries should have no share of the trust because they did not present their claims until after the court determined that the trust was valid and enforceable. We Affirm.
FACTS
On October 21, 1987, Debtor, Milton Poulos, Inc., filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. Debtor subsequently moved for conversion of his case to Chapter 7. Debtor is engaged in the business of purchasing fruit and vegetables from many growers and distributors.
On December 10, 1987, C & E Enterprises, Inc., dba Koyama Farms, Pleasant Valley Vegetable Cooperative, Teixeira Farms, Inc. and Maulhardt-Stiles filed a motion for relief from the automatic stay and for turnover of property not part of Debtor's estate. These suppliers sought relief to assert their rights to assets established as a statutory trust under the Perishable Agricultural Commodities Act of 1930 ("PACA").
At the court's request, notice of this motion was served on other supplier creditors, including Veg-A-Mix, Florance Distributing Co., Del Mar Packing Co., and Smithpro Brokerage. Veg-A-Mix and Florance Distributing Co. moved to intervene and join the motion. These six suppliers, C & E Enterprises, Pleasant Valley Vegetable Cooperative, Teixeira Farms, Inc., Maulhardt-Stiles, Veg-A-Mix, and Florance Distributing Co. shall hereinafter be referred to as "Beneficiaries."
The court below determined that the PACA trust is a valid statutory trust, that the trust beneficiaries' rights are enforceable in bankruptcy and that the trust assets are not part of the bankruptcy estate. 94 B.R. 648. The trial court's Memorandum of Decision identified Beneficiaries along with their alleged claims. The court also noted that several other unpaid sellers *717 with potential trust claims existed but were not participating in the motion. In addition, the Memorandum denied Beneficiaries' requests for interest and attorneys' fees and costs. Beneficiaries filed a motion for reconsideration of this last determination. Finally, in a separate order, Judge Ashland ordered the parties to appear before the court on November 7, 1988 to settle the contents of an order contemplated in the Memorandum of Decision.
Del Mar Packing Co. and Smithpro Brokerage ("Claimants") first appeared at the November 7, 1988 hearing. Claimants asserted their right to a share of the trust assets notwithstanding the fact that they had not intervened and had no prior participation in the proceedings. An order filed on December 28, 1988 granted relief from stay and identified the participants of the trust entitled to share in the trust assets. Claimants were identified along with Beneficiaries in the order. In addition, the court again denied an award of interest and attorneys' fees and costs. Beneficiaries timely appealed both the inclusion of Claimants as sharing in the trust assets and the denial of interest and attorneys' fees and costs.[1]
STANDARD OF REVIEW
Whether Del Mar Packing Co. and Smithpro Brokerage, Claimants, are entitled to share in the Debtor's trust assets is a question of law. Questions of law are reviewed de novo. In re Pizza of Hawaii, 761 F.2d 1374 (9th Cir.1985). Generally, review of a bankruptcy court's award of attorney's fees or similar compensation is for an abuse of discretion. In re Nucorp Energy, Inc., 764 F.2d 655, 657 (9th Cir.1985); In re Knudsen Corp., 84 B.R. 668, 670 (9th Cir. BAP 1988).
DISCUSSION
Beneficiaries argue that Claimants must be excluded from sharing in the PACA trust distributions because Claimants did not participate in the bankruptcy proceedings. Specifically, Beneficiaries assert that Claimants should have no share because they did not establish the validity of their claims, they did not timely move to intervene under Fed.R.Civ.P. 24, and their failure to participate constitutes waiver of their claims.
According to the Perishable Agricultural Commodities Act, any perishable agricultural commodities received by a commission merchant, dealer, or broker and any receivables or proceeds from the sale of the commodities, shall be held in trust for the benefit of all unpaid suppliers or sellers of such commodities until they have received full payment. 7 U.S.C. § 499e(c)(2) (Supp. 1988). The requirements for participating in this statutory trust are found in subsection (c)(3).[2] To perfect this statutory trust, the seller must give written notice directly to both the buyer and the Secretary of Agriculture; indirect notice from the Secretary to the buyer is not sufficient. In re Marvin Properties, Inc., 854 F.2d 1183, 1186 (9th Cir.1988).
The assets in a PACA trust do not have to be separated from the debtor's other assets. Moreover, they need not be specifically designated as "trust assets." In re *718 Fresh Approach, Inc., 51 B.R. 412, 422 (Bankr.N.D.Tex.1985). Rather, the assets "are to be preserved as a nonsegregated `floating' trust. Commingling of trust assets is contemplated." 7 C.F.R. § 46.46 (1988). Finally, it is well settled that property held by a debtor in a PACA statutory trust is not part of the bankruptcy estate. See, e.g., In re W.L. Bradley Company, Inc., 75 B.R. 505 (Bankr.E.D.Pa.1987); In re Monterey House, Inc., 71 B.R. 244 (Bankr.S.D.Tex.1986); Fresh Approach, 51 B.R. at 419. As noted by one court, this proposition "is so widely accepted as to be beyond dispute." Fresh Approach, 51 B.R. at 419.
In this case, Debtor acknowledged that all of the supplier creditors involved in this appeal gave notice of their intent to preserve the benefits of the trust, and thus properly perfected their rights in the trust. Moreover, the record contains evidence that the claims were indeed properly perfected according to Department of Agriculture standards. This evidence comes in the form of correspondence from the United States Department of Agriculture which lists the parties involved here together with the amounts of their PACA claims.
Despite this evidence, Beneficiaries assert that Claimants should have no share in the PACA trust assets because they did not participate in the motion for relief from stay. Beneficiaries contend that the amended notice of motion for relief from stay, provided in accordance with Judge Ashland's request, clearly communicated to Claimants the fact that Beneficiaries were seeking distribution for themselves only and not for an undefined class of creditors. However, Beneficiaries' argument fails to recognize that the plain language of § 499e provides for distribution to all supplier creditors who perfect their rights. Section 499e(c)(2) plainly states that PACA trust assets "shall be held . . . in trust . . . for the benefit of all unpaid suppliers. . . ." 11 U.S.C. § 499e(c)(2) (Supp.1988) (emphasis added).
The PACA claimants are not, as Beneficiaries term them, "an undivided class of creditors" but rather a narrowly defined class whose membership depends upon strict compliance with notice provisions and regulations promulgated under the Act. See, e.g., In re D.K.M.B., Inc., 95 B.R. 774, 779 (Bankr.D.Colo.1989). Absent some countervailing reason, all properly perfected PACA claimants should share in the trust assets because the trust is impressed for the benefit of all suppliers. Moreover, because the trust class is already established, the Beneficiaries' argument is not well taken.
While there are no reported cases which deal with the issue of where some PACA suppliers seek to exclude others from sharing in trust assets, at least one bankruptcy court has recognized that one PACA claimant is not entitled to payment ahead of other claimants. In J.R. Brooks & Son v. Norman's Country Market, 98 B.R. 47 (Bankr.N.D.Fla.1989), one supplier creditor sought judgment declaring that the debtor violated various PACA provisions. The creditor also sought payment of its claim. The bankruptcy court determined that immediate relief was necessitated by the debtor's actions but refused to allow payment of the creditor's claim. Rather, because there existed other PACA claimants who faced potential non-payment, the court required the debtor to segregate and hold in trust all PACA assets. Should the trust assets not be sufficient to pay all PACA claims, then the debtor was to distribute the trust assets on a pro rata basis. Id. at 51. We believe this approach is the appropriate one in light of § 499e's unequivocal language. Further, while Claimants sought participation in the trust after the motion to lift stay, no final order had been entered. Thus, it is proper that Claimants share in distribution.
Finally, Beneficiaries appeal denial of interest, fees and costs. The trial court held that, assuming it had the equitable power to grant Beneficiaries' claims, such an award would unfairly deplete the bankruptcy estate at the expense of all other creditors. Thus, the Beneficiaries were only entitled to enforcement of their rights established under the PACA. In re Milton Poulos, Inc., 94 B.R. 648, 653 (Bankr.C.D. Cal.1988). Reviewing this determination *719 for an abuse of discretion, we find none. Judge Ashland considered the overall equities of the case and determined that an award of interest, fees and costs would benefit Beneficiaries at the expense of all other estate creditors. We find that such a consideration here is not an abuse of discretion.
Moreover, unlike over two hundred other federal causes of action in which Congress has explicitly provided for attorney's fees, 7 U.S.C. 499e(c)(2) contains no express statutory right to such an award. In re W.L. Bradley Co., Inc., 78 B.R. 92, 95 (Bankr.E.D.Pa.1987). Importantly, § 499g(c) of the PACA provides for an award of attorney's fees to a prevailing appellee from a reparation order for violation of 7 U.S.C. § 499b. Id. No like provision exists for § 499e. The inconsistent provisions for an award of attorney's fees within the PACA itself demonstrate Congress' intent that attorney's fees not be automatically considered part of a beneficiary's share under § 499e.
CONCLUSION
The plain language of 7 U.S.C. § 499e(c)(3) clearly provides that the PACA statutory trust is established for the benefit of all properly perfected unpaid supplier creditors. Today, we hold that, absent some countervailing reason, certain properly perfected supplier creditors cannot exclude other similarly perfected supplier creditors from sharing in trust distribution on grounds that they failed to join a motion for relief from stay. This holding gives effect to Congress' clear intent that a PACA trust is for the benefit of all unpaid suppliers. We also hold that the trial court's denial of interest, attorney's fees and costs was not an abuse of discretion. Moreover, there is no express statutory right to such an award. Accordingly, we AFFIRM the order below permitting Claimants to participate in the PACA trust and denying Beneficiaries' request for interest, attorneys fees and costs.
NOTES
[1] Two appeals were brought by six of the beneficiaries. These appeals were administratively consolidated under F.R.A.P. 3(b) because the issues on appeal are identical. BAP No. CC-89-1053 was filed by C & E Enterprises, Inc., dba Koyama Farms, Pleasant Valley Vegetable Cooperative, Teixeira Farms, Inc. and Maulhardt-Stiles Company. BAP No. CC-89-1070 was filed by the two remaining Appellants, Florance Distributing Co. and Veg-A-Mix.
[2] Subsection (c)(3) provides:
[t]he unpaid supplier, seller, or agent shall lose the benefits of such trust unless such person has given written notice of intent to preserve the benefits of the trust to the commission merchant, dealer, or broker and has filed such notice with the Secretary within thirty calendar days (i) after expiration of the time prescribed by which payment must be made, as set forth in regulations issued by the Secretary, (ii) after expiration of such other time by which payment must be made, as the parties have expressly agreed to in writing before entering into the transaction, or (iii) after the time the supplier, seller, or agent has received notice that the payment instrument promptly presented for payment has been dishonored. . . .
7 U.S.C. § 499e(c)(3) (Supp.1988). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920313/ | 107 B.R. 787 (1989)
In re Isabel TENORIO, Debtor.
Bankruptcy No. 89-13903-BKC-TCB.
United States Bankruptcy Court, S.D. Florida.
November 27, 1989.
Darrell Johnson, Weitzner & Russo, Miami, Fla., for trustee/plaintiff.
Jordan Bublick, Miami, Fla., for debtor/defendant.
*788 MEMORANDUM ORDER ON TRUSTEE'S OBJECTION TO CLAIMED EXEMPTION AND MOTION TO DIRECT SURRENDER OF PROPERTY.
SIDNEY M. WEAVER, Bankruptcy Judge.
THIS CAUSE, having come before this Court on October 19, 1989 upon the Trustee's Objection to the Debtor's Claimed Exemption and Motion to Direct Surrender of Property, and having considered the Debtor's memorandum and arguments of counsel and otherwise being fully advised in the premises, this Court does hereby make findings of fact and conclusions of law and enters its order as follows:
Jurisdiction is vested in this Court pursuant to 28 U.S.C. Sections 1334(b), 157(a) and (b), and the District Court's general order of reference. These are core proceedings, as defined by 28 U.S.C. Section 157(b)(2)(B) and (E), in which this Court is authorized to hear and determine all matters related to this case. The Objection and Motion are made pursuant to Bankruptcy Rules 4003 and 9013, and 11 U.S.C. Section 521(4).
The Trustee's Objection and Motion to Direct Surrender arise from the Debtor's claim for a $1,000.00 homestead exemption pursuant to FLA.CONST. Article 10, Section 4, and FLA.STAT. Section 222.05. The exemption being claimed involves a condominium apartment wherein the Debtor has no ownership interest other than the possessory rights of a lessee under a year to year lease.
The value of said property interest was initially scheduled at $1,000.00. This Court finds that this amount constitutes the security deposit required by the lease, regardless of the Debtor's characterization of one half as advance rent. In addition, this Court notes that subsequent to the filing of the Trustee's Objection and Motion, but prior to the hearing thereon, the Debtor amended her claimed exemption to include the "Entire value" of her interest in the condominium. This amendment does not change the outcome of this Court's decision, and is incorporated herein.
The primary thrust of the Trustee's objection, is her assertion that the plain and unambiguous language of FLA. CONST. Article 10, Section 4 and FLA. STAT. Section 222.05, require the Debtor to be an "owner" of her "dwelling house" before she can claim it as exempt homestead property. In pertinent part, FLA. CONST. Article 10, Section 4 provides: "There shall be exempt from forced sale . . . the following property owned by a natural person: (1) a homestead . . ." (emphasis added). In addition, FLA.STAT. Section 222.05 provides in pertinent part:
222.05 Setting apart leasehold
Any person owning and occupying any dwelling house, . . . on land not his own which he may lawfully possess, by lease or otherwise, and claiming such house . . . as his homestead, shall be entitled to the exemption of such house . . . from levy and sale as aforesaid. (Emphasis added).
This ownership requirement is also supported by Florida case law. Bowers v. Mozingo, 399 So. 2d 492, 494 (Fla.3rd DCA 1981) (Ownership is necessary to acquisition of the homestead rightpossessory interests are legally insufficient); McCall v. Barnett Bank of Columbia County (In re McCall), 74 B.R. 666, 669 (Bankr.M.D. Fla.1987) (One person cannot claim an exemption in another person's property). In addition, a year to year lease such as the one at hand, evidences a lack of intent to make the property her permanent place of residencea requirement of homestead property. See, Cooke v. Uransky (Matter of Cooke), 412 So. 2d 340, 343 (Fla.1982).
In contrast, the Debtor asserts that the vast majority of other jurisdictions support the proposition that a leasehold interest may constitute a protected homestead. E.g., In re Hellman, 474 F. Supp. 348, 350 (D.Colo.1979). However, this assertion ignores the Florida Constitutional and Statutory use of the words "owned" and "owning" in their provisions. This Court finds that the meaning and use of these words is clear and unambiguous. A debtor must have an ownership interest in the property being claimed as exempt. A year to year *789 lease does not constitute the requisite ownership interest.
In addition, leases of this type are typically classified as chattels real, and regarded as personal propertynot real property. E.g., De Vore v. Lee, 158 Fla. 608, 30 So. 2d 924, 926 (1947), rev'd sub nom. on other grounds, De Vore v. Gay, 39 So. 2d 796 (Fla.1948). Florida provides a specific and separate exemption for personal propertywhich the Debtor has already claimed to the maximum. FLA. CONSTITUTION, Article 10, Section 4(a)(2).
As a result of the above, this Court holds that the Debtor's interest in said condominium unit is outside the scope of the homestead exemption set forth in FLA.CONST. Article 10, Section 4 and FLA.STAT. Section 222.05. In addition, the Debtor is limited to the total sum of $1,000.00 in her claims of exemption for personal property. However, she is already claiming the maximum $1,000.00 personal property exemption for other personal property. The Debtor's personal property interest in the condominium is therefore non-exempt property of the estate pursuant to 11 U.S.C. Section 541.
In accordance with the above findings of fact and conclusions of law, this Court enters its Order as follows:
1. That the Trustee's Objection to Claimed Exemption and Motion to Direct Surrender of Property is hereby granted.
2. That the Debtor's claimed homestead exemption, for her leasehold interest in Unit 205 of Horizons East Condominium, is disallowed. Accordingly said interest is property of the estate.
3. That the Debtor is directed to surrender $1,000.00, the value of her interest in the premises, to the Trustee.
4. That each party will bear its own costs.
DONE and ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920317/ | 107 B.R. 44 (1989)
In re ROTH AMERICAN, INC., Debtor.
Bankruptcy No. 5-88-00056.
United States Bankruptcy Court, M.D. Pennsylvania.
October 27, 1989.
Arthur Silverblatt, Wilkes-Barre, Pa., for Gurbst.
Robert C. Nowalis, Wilkes-Barre, Pa., for Roth American.
John J. Thomas, Wilkes-Barre, Pa., for United Rehabilitation.
David S. Brady, Office of U.S. Trustee, Harrisburg, Pa., for U.S. Trustee.
Jeffrey Baddely, Cleveland, Ohio, for Official Unsecured Creditors Committee.
Patrick J. Szymanski, Baptiste & Wilder, P.C., Washington, D.C., for Teamsters Local 401.
OPINION AND ORDER
THOMAS C. GIBBONS, Bankruptcy Judge:
This proceeding is before the Court on an "Application for Court Order of Payment of Amount Due under Executory Contract as an Administration Expense." The prayer in the application requests this Court to declare a deferred compensation agreement entered into between Herbert S. Gurbst (hereinafter "Gurbst") and the debtor, an assumed executory contract with the balance due Gurbst under the agreement recognized as a priority administrative expense. A variety of objections were filed to the application. For the reasons provided herein, we find that the deferred compensation agreement is not an executory *45 contract and further that Gurbst is not entitled to any payments under the agreement as an administrative priority expense of the estate.
The facts surrounding the instant controversy are as follows. On or about August 11, 1975, Gurbst and the debtor's predecessor entered into a deferred compensation agreement. In short, this agreement provided that Gurbst would receive a total amount of $150,000, paid by 180 equal consecutive monthly installments commencing a month following his retirement or any other date mutually agreed to by the parties. The agreement also provided, inter alia, that Gurbst could not, during his employment or thereafter, and so long as payments were due him thereunder and without the consent of the company, enter into competition with the company. If Gurbst did compete he would forfeit any rights to the payments under the agreement. The instant agreement also expressly provided that it was not an employment agreement.
Gurbst retired on October 31, 1987 and received two monthly payments of $900 each made in November and December of 1987. Thereafter, on February 1, 1988, Roth American, Inc. (hereinafter "debtor") filed its petition for reorganization under chapter 11. Gurbst filed the instant application with this court claiming that the deferred compensation agreement was actually an executory contract which was impliedly assumed by the chapter 11 debtor. Additionally, Gurbst claims he performed valuable work on behalf of the debtor corporation subsequent to the filing of the petition and that the balance due under the executory contract should be recognized by this court as an administrative expense with the balance of approximately $148,200 declared immediately due and payable.
Objections were filed to this application by the following parties in interest: the debtor, United States Trustee's Office, the Unsecured Creditors Committee, United Rehabilitation Services, and Local Union 401. The objectors argue, inter alia, that the deferred compensation agreement is not an executory contract, but, if the deferred compensation agreement is declared an executory contract, it can be assumed by the chapter 11 debtor up to and including the time of confirmation of the plan and, therefore, Gurbst application is premature. Furthermore, the objectors assert Gurbst never made application to this court to be appointed as a professional working on behalf of the estate. Finally, they argue that, at best, Gurbst is the holder of a claim that arose prepetition and, therefore, is entitled to no priority because there was no showing that the alleged services he performed on behalf of the estate or the assumption of the contract would be for the necessity and the preservation of the estate. Mr. Gurbst replies that the agreement is executory in nature and that he provided substantial services to the estate by participating in the collection of accounts receivable and other actions taken on behalf of the corporation which services are an administrative expenses because they benefited and preserved the estate. Mr. Gurbst also claims that the deferred compensation agreement is very much like an agreement for severance pay and should be accorded priority as an administrative expense.
DISCUSSION
The first issue is whether or not the deferred compensation agreement in question is indeed an executory contract under the Bankruptcy Code. We direct the parties attention to In re Placid Oil Company, 72 B.R. 135, 137 (Bankr.N.D.Tex.1987) which provides the following:
"[1] In analyzing contracts under Bankruptcy Code Section 365, courts have generally employed the Countryman definition of an executory contract, i.e. a contract under which the obligations of both the bankrupt and the other party remain so far unperformed that failure of either to complete performance would constitute a material breach excusing performance of the other. Countryman, Executory Contracts in Bankruptcy: Part I, 57 Minn.L.Rev. 439, 460 (1973). The test has been applied in various situations where either a duty to perform or to forebear on the part of either party would, if breached, *46 constitute a material default. See Lubrizol Enterprises v. Richmond Finishers, Inc., 756 F.2d 1043 (4th Cir.1985); Matter of B. Siegel Co., 51 B.R. 159 (Bankr. E.D.Mich.1985); In re O.P.M. Leasing Services, Inc., 23 B.R. 104 (Bankr.S.D.N. Y.1982), and cases cited therein. Even a contingent obligation of each of the parties, prior to the expiration of the contingency, is sufficient to render a contract executory when a breach of the obligation would be material. Lubrizol, 756 F.2d at 1046. The common element of all executory contracts appears to have been defined as reciprocal obligations between the parties. National Labor Relations Board v. Bildisco & Bildisco, 465 U.S. 513, 522 n. 6, 104 S. Ct. 1188, 1994 n. 6, 79 L. Ed. 2d 482 (1984). In contrast, an executed contract is one in which the arrangement is already performed. In re American Magnesium Co., 488 F.2d 147 (5th Cir.1974).
The objectors cite the case of In re Sentle Trucking Corporation at 93 B.R. 551 (Bankr.N.D.Ohio 1988) for the proposition that a deferred compensation agreement is not considered by the bankruptcy courts as an executory contract. This, however, is an oversimplistic reading of the holding in the Sentle case. The Sentle court did not hold that all deferred compensation agreements are not executory contracts but did reach that conclusion in that particular case. The court recognized the legal principle enunciated in the case of Matter of Smith Jones, 26 B.R. 289 (Bankr.Minn. 1982) that even though an obligation of one of the parties may be contingent it does not necessarily prevent a contract from being considered executory under the Bankruptcy Code. In the Sentle case, as in this case, the obligations of the petitioner were non-existent because of the cessation of any business activity. While the Sentle case is a chapter 7, it is similar to the instant case which is a liquidating chapter 11. Here, the debtor has substantially sold off its primary assets and has ceased doing business. The only duty remaining to be performed in the instant case is the debtor's obligation to make further payments under the deferred compensation agreement. Gurbst, on the other hand, has no duties or obligation to perform. Consequently, we find that the instant agreement is not executory under § 365 of the Code.
Gurbst also argues that the agreement was impliedly assumed by the debtor. We find no testimony or evidence was submitted at the time of hearing to support this contention. In fact, the testimony regarding what services were actually performed by Gurbst on behalf of the chapter 11 estate and the benefit the estate received from those services is at best sketchy and uncertain. Normally, contracts are assumed following the filing of a motion and order submitted to the court for approval. See In re Middleton, 3 B.R. 610 (Bankr.E.D.Pa.1980) and In re Marple Publishing Company, Inc., 20 B.R. 933 (Bankr.E.D.Pa.1982). Neither a motion nor order for approval of employment were submitted on Gurbst's behalf.
The next issue is whether or not the deferred compensation agreement can be likened to a severance pay agreement thus rendering all payments due under the agreement as a § 503(b) administrative priority expense. Again, we note that Gurbst failed to make any application either on his own behalf or through the chapter 11 debtor to have himself appointed as a professional to work on behalf of the estate.
"An expense is administrative only if it arises out of a transaction between the creditor and the bankrupt's trustee or debtor-in-possession and only to the extent that the consideration supporting the claimant's right to payment was both supplied to and beneficial to the debtor-in-possession and the operation of the business. A debt is not entitled to priority simply because the right to payment arises after the debtor-in-possession has begun managing the estate.
See In re Amarex, 853 F.2d 1526 (10th Cir.1988) (citations omitted).
Mr. Gurbst, however, relies on the case of In re Miami General Hospital, Inc., 89 B.R. 980 (S.D.Fla.1988) to support his argument that his deferred compensation agreement is actually a contractual severance *47 pay agreement and that upon termination of employment, all payments due him under the agreement somehow became an administrative expense in this chapter 11 case. Unlike the instant case, the trustee in the Miami General Hospital case testified that the employment of the petitioner was essential to the continued operation of the chapter 11 debtor. Additionally, the employment agreement between the petitioner and the hospital provided that upon severance of the employment relationship, the severance pay would become due and owing to the petitioner. The instant agreement is not an employment contract nor can it be likened to an agreement providing for severance pay. Even giving Mr. Gurbst's argument the benefit of the doubt and likening the instant deferred compensation agreement to one as an agreement for severance pay entitled to be paid in its entirety as an administrative expense, we find that Mr. Gurbst's argument again fails because "the obligation to pay severance pay as administrative expense entitled to priority rest on the basis that severance pay is compensation for the hardship which all employees, regardless of their length of service, suffer when they are terminated, and that it is therefore `earned' when the employees are dismissed. . . . Indeed, it appears to be the general rule that when severance pay, like vacation pay, represents compensation from the employee's past services, it is not an administrative expense entitled to priority." See In re Amarex, supra citing Matter of Jartran, 732 F.2d 584, 590 n. 6 (7th Cir.1984); Matter of Pacific Far East Line, Inc., 713 F.2d 476, 478 (9th Cir.1983); In re Health Maintenance Foundation, 680 F.2d 619, 621-22 (9th Cir.1982); In re Mammoth Mart, 536 F.2d 950, 955 (1st Cir.1976); Denton & Anderson Co. v. Induction Heating Corp., 178 F.2d 841 (2d Cir.1949); In re St. Louis Globe-Democrat, Inc., 86 B.R. 606 (Bankr. E.D.Mo.1988).
The agreement in question does not contemplate severance pay. Mr. Gurbst retired two months prior to the filing of the bankruptcy. Also, the agreement provides that the Board of Directors of the company recognized that he had performed his services with "ability and distinction" and further, that the company desired to reward and retain his services and assist him in providing for contingencies of retirement.
The expenses for compensation to employees of the trustee or the debtor-in-possession are expressly entitled to priority under § 503(b)(1)(A) if they are for the actual necessary cost and expenses of preserving the estate. In re Miami General Hospital, Inc. citing Collier on Bankruptcy, ¶ 503.04[1][a][iii] at 503-28 (1988 Ed.). A trustee, or a debtor-in-possession, in an effort to preserve the estate, and as an incident of the operation of the business, may hire or fire employees in order to perform those duties. Severance pay is one way to pay an employee at termination in lieu of notice. See In re Miami General Hospital, Inc., at 984. If a presumption is made that the trustee chose to terminate an employee without notice as part of the administration of the chapter 11 reorganization, then the severance pay in lieu of notice can be considered a cost of administration. See In re Miami General Hospital, Inc., at 984 citing Matter of Health Maintenance Foundation, 680 F.2d 619, 629 (9th Cir.1982). In this case, Mr. Gurbst was not an employee at the time of the commencement of this chapter 11 case and had, in fact, retired two months prior to the filing of the petition.
Consequently, based on the evidence adduced at trial and a review of the agreement in question, we find that the deferred compensation agreement is not an executory contract as contemplated by § 365 of the United States Bankruptcy Code, nor does it take the form of a severance pay agreement between an employee and employer. We also find Gurbst is not entitled to receive administrative priority payments pursuant to 11 U.S.C. § 503.
Finally, we note Mr. Gurbst is in the position as any other unsecured creditor of the debtor and may file a claim and participate in any possible future distribution to creditors in this case pursuant to a confirmed chapter 11 plan.
This opinion and order constitutes the court's findings of fact and conclusions of *48 law in the above matter pursuant to Bankruptcy Rule of Procedure 7052 and Federal Rule of Civil Procedure 52.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
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